April 24, 2020 § 3 Comments
Was it the intention of the founders to establish a Christian nation?
Witness their thoughts:
- “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?” — James Madison
- “Because religious belief, or non-belief, is such an important part of every person’s life, freedom of religion affects every individual. State churches that use government’s power to support themselves and force their views on persons of other faiths undermine all our civil rights. Moreover, state support of the church tends to make the clergy unresponsive to the people and leads to corruption within religion. Erecting the ‘wall of separation between church and state,’ therefore, is absolutely essential in a free society.” — Thomas Jefferson
- “The religion of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate … We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. The civil government functions with complete success by the total separation of the Church from the State.” — James Madison
- “We should begin by setting the conscience free. When all men of all religions shall enjoy equal liberty, property, and equal chance for honors and power we may expect that improvement will be made in the human character and the state of society.” — John Adams
- “I beg you be persuaded that no one would be more zealous than myself to establish effectual barriers against the horrors of spiritual tyranny, and every species of religious persecution.” — George Washington
- “I contemplate with solemn reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.” — Thomas Jefferson
- “It is contrary to the principles of reason and justice that any should be compelled to contribute to the maintenance of a church with which their consciences will not permit them to join …” — George Mason
- “Without freedom of thought, there can be no such thing as wisdom; and no such thing as a public liberty without the freedom of speech; which is the right of every man as by it he doe not hurt or control the right of another …” — Benjamin Franklin
- “Conscience is the most sacred of all property.” — James Madison
- “That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience …” — George Mason
September 9, 2019 § 3 Comments
Can a chancellor grant a divorce solely on the adverse inference created when a witness invokes the Fifth Amendment to the United States Constitution?
That was one of the questions raised in Martha Bradshaw’s appeal from a chancellor’s adjudication that she was guilty of adultery and granting a divorce to her husband, Loyd.
To refresh your recollection as to that adverse inference, here is a quote from ¶22 of the COA’s August 13, 2019, decision in Bradshaw v. Bradshaw, penned by Judge Greenlee:
Concerning a witness’s “taking the Fifth” in civil cases, the trier of fact may draw an adverse inference from a defendant’s refusal to testify. Gibson v. Wright, 870 So. 2d 1250, 1260 (¶42) (Miss. Ct. App. 2004).
Let’s say the witness was asked, “have you committed adultery during the marriage?” and the witness pleads the Fifth, at that point the court may infer that the witness’s answer would have been adverse to his or her interest.
So, when a witness claims the Fifth Amendment’s right against self-incrimination in a divorce case, is that inference enough to satisfy the burden of proof? Judge Greenlee says:
However, we have failed to find a case that allows a divorce to be granted based solely on that inference.
In a specially concurring opinion, Judge McCarty raises the question whether in Mississippi it is even appropriate to invoke the Fifth on the basis that answering the question could subject one to prosecution for adulterous conduct. At footnote 7 he observes:
It is unlawful cohabitation conjoined with more than a single act of adultery that is a crime—a misdemeanor. Miss. Code Ann. § 97-29-1 (Rev. 2014); see Miss. Dep’t of Wildlife, Fisheries & Parks v. Bradshaw, 196 So. 3d 1075, 1085 (¶26) (Miss. Ct. App. 2016) (holding that there is no general crime of adultery, but that the Code prohibits cohabitation when there is a “habitual . . . laying together”).
Then, at footnote 8, he points out:
There have been prosecutions for adultery, but we do not see reported cases on it lately. See Ratcliff v. State, 234 Miss. 724, 728, 107 So. 2d 728, 729 (1958) (examining the law and the corollary prohibition on marriage between blacks and whites, which unlike the cohabitation crime, was a felony punishable with 10 years); Housley v. State, 198 Miss. 837, 839, 23 So. 2d 749, 749 (1945) (affirming dual convictions for unlawful cohabitation). Although it is easy to see the objection as gamesmanship, we have reminded the Bar not too long ago “that cohabitation between persons not married to each other is against the law in Mississippi,” and while “this law is frequently broken has been recognized by the supreme court,” it remains on the books as a crime. Sullivan v. Stringer, 736 So. 2d 514, 516-17 (Miss. Ct. App. 1999). We ruled there that “[c]ommission of crimes by a custodial parent, even if they are only about sex, is properly the concern of a chancellor,” although it should be added that the weight accorded to it is left to the trial court. Id.
He refers to the objection based on possible prosecution for adultery as “incorrect” in footnote 9:
The same incorrect objection was lodged in McDonald v. McDonald, 69 So. 3d 61, 66 (Miss. Ct. App. 2011). We noted in passing that we would “decline to address the question of whether [the husband] could have successfully been prosecuted for adultery . . . . ” Id. at 66 n.2.
March 2, 2015 § 3 Comments
The MSSC has the gay-marriage issue before it, as does the SCOTUS.
Last Thursday the Mississippi court issued an order calling for more briefing and indicating that it may well stay the Mississippi appeal until the SCOTUS can rule.
You can read the MSSC order in the case of Czekala-Chatham v. State of Miss. for yourself, with objecting opinions, but here is what the court wants briefed:
In light of Mississippi’s public policy of not allowing or recognizing a marriage between two persons of the same gender, what rational basis supports the interpretation or application of a law or constitutional provision so as to prohibit Mississippi courts from granting a divorce to a Mississippi resident who was lawfully married in another state to a person of the same gender?
So, what does this portend?
The only clear indication is in the three objections: Chandler clearly would uphold the Mississippi laws; King and Kitchens would not.
Oh, and the other pretty clear direction in this case is that it apparently will be sidetracked to let the feds decide the issue. Justice King decries that as a dereliction of duty.
It’s an interesting case. Stay tuned.
June 7, 2013 § 6 Comments
The MSSC yesterday ruled in Hays v. Alexander that there is nothing in the common law that would empower the court to create a duty in parents to support adult disabled children. The court said at ¶ 15: “The power to grant the authority to require parents in Mississippi to support their adult children is confided to a separate magistry: the Legislature. Our courts are without the constitutional power to declare otherwise.”
A wrinkle in this case was that the case was brought as a modification action in chancery court by the mother acting as conservator of the child. The chancellor ruled that a modification action was not the proper vehicle, but he went beyond that and ruled that he had no authority to impose a post-majority obligation on the father. The supreme court affirmed on both points.
This is an issue that lawyers and judges have encountered and speculated about for many years, as long as I have been practicing. For a while the speculation was that the supreme court, given just the right set of facts, would impose that duty.
Yesterday’s decision would appear to lay that speculation to rest. If there is no common-law authority to draw on, and the court holds that there is a separation-of-powers impediment, that would be conclusive, in my opinion.
Justice King dissented, taking the position that the legislature has, indeed, given the courts all the authority they need in existing legislation. You can read his dissent and form your own conclusions. Dickinson, Kitchens, and Chandler joined his dissent.
There is an interesting footnote, number 5, on the eighth page of the opinion (¶ 13). Here’s the text:
The Legislature has created two exceptions to the common law. Post-majority maintenance is statutorily provided for in Mississippi Code Section 43-31-28. It provides that a county board of supervisors may require certain family members to provide care for a pauper who is unable to work, as follows, in relevant part:
The father and grandfather, the mother and grandmother, and brothers and sisters, and the descendants of any pauper not able to work, as the board of supervisors shall direct, shall, at their own charge, relieve and maintain such pauper; and, in case of refusal, shall forfeit and pay the county the sum of One Hundred Fifty Dollars ($150.00) per month, for each month they may so refuse, to be recovered in the name of the county; and shall be liable to any governmental entity who supplies such poor relative, if abandoned, with necessaries, not exceeding said sum per month . . . .
Miss. Code Ann. § 43-31-28 (Rev. 2004) (emphasis added). We have held that “this statutory liability can only be enforced in the manner provided by statute.” Wright[et al. v. Coleman], [137 Miss. 699,] 102 So.  at 777 [(1925)].
Post-majority support also is statutorily provided for in a Department of Human Services paternity case. A putative father who has acknowledged paternity and is responsible for making support payments for a minor child is required to continue making support payments if the child has a disability that continues into adulthood. Miss. Code Ann. § 43-19-33(3) (Rev. 2004) (“in the case of a child who, upon reaching the age of twenty-one (21) years, is mentally or physically incapable of self-support, the putative father shall not be relieved of the duty of support unless said child is a long-term patient in a facility owned or operated by the State of Mississippi.).
You might have known about those two provisions. I did not.
The issue of parental support for adult disabled children has many facets and ramifications. If it is to be addressed at all, it appears that the Mississippi Legislature, with all of its institutional wisdom and foresight, will be the body to do it.
December 6, 2012 § 1 Comment
Note: Since neither of the law schools in Mississippi require their students to study chancery courts and equity jurisdiction as a discrete subject, I thought it would be useful and informative to set out a brief history of how we came to have separate chancery courts in our state, as a starting point for understanding how our courts have developed separate practices and procedure.
When the Mississippi Territory was created in 1798, there was influx of settlers into the region around Natchez, where significant wealth began to be accumulated. As land was developed and plantations were established, there was a growing need for legal professionals to research and litigate land claims, and to advise the growing business community.
Lawyers came to the new territory from Maryland, Virginia and the Carolinas. They brought with them the knowledge of their own legal systems based on English jurisprudence and judicial organization. The first chancery courts in the colonies had been established in Maryland, and that state’s equity system was regarded as being one of the most advanced. The courts in the Atlantic states administered equity as had the chancery courts of England.
The immigrant attorneys influenced the territorial legislature, and the first territorial courts established were the Superior Courts, which had both legal and equitable jurisdiction. Interestingly, the legislation establishing those courts provided that they “may ordain and establish all necessary rules for the orderly conducting of business in equity,” meaning that the courts and not the lawmakers made the rules of procedure.
Mississippi achieved statehood in 1817, and the first state constitution authorized the legislature to establish a separate court of chancery. From the inception of the State of Mississippi, then, chancery court has been a constitutional court. Nonetheless, it was several years before the legislature acted on its authority. In 1821, at the urging of Virginia native George Poindexter, the legislature did establish the separate superior court of chancery.
Supreme Court Justice Joshua G. Clarke (for whom Clarke County is named) was selected as the state’s first chancellor. At the time, the position of chancellor was appointed, and was regarded as preferable to a seat on the Supreme Court.
Practice in chancery then was vastly different from what it is now. There was one chancellor, who sat at the seat of government and one or two additional places, and to whom the cases were brought. Trials were the exception. Instead, testimony was presented by deposition. The “Learned Chancellor” examined the facts presented in the light of any applicable precedent (the case law of New York and England were the primary authorities until Mississippi developed its own substantial body of law), and rendered a scholarly and, hopefully, wise decision, which could then be appealed to the supreme court.
The constitution adopted in 1832 made the position of chancellor an elected one, and it is believed that Mississippi’s were the first elected chancery judges. That constitution provided for separate courts of equity, but also authorized the legislature to give circuit courts concurrent equity jurisdiction “in all cases where the amount or thing in controversy does not exceed $500; also all cases of divorce and for foreclosure of mortgages.” The provision for concurrent jurisdiction was made because it was burdensome for poorer litigants to have to travel to the locale of the chancery court.
To help alleviate the caseload, the position of Vice-Chancellor was created in 1842, and another was created in 1846. At that point, the three chancellors began riding what amounted to a circuit, holding court in different sections of the state, similar to our federal courts now.
By 1856, the business in chancery court had grown to such an extent that the constitution was amended in that year so that the circuit judges held chancery court in each county.
Up to 1868, probate matters had been entrusted to local “probate courts,” inferior to the chancery courts, which were staffed by lay persons who had no legal training or experience, and no judicial background. As a result, business was frequently mishandled, and the chancery courts were swamped with suits stemming from the inferior court actions. It was often said that the only issue when reviewing the action of a probate court was whether its actions were void or merely voidable.
As for practice and procedure, the principle established in territorial days that the chancellors would establish their own procedures continued in effect, but there was no central authority for the rules, and there was a confusing proliferation of procedural rules and practices that varied greatly from one chancellor to another. The resulting confusion gave rise to a call for uniformity among the courts.
Another source of dissatisfaction with the chancery system was that as the population grew there was an increasing demand for court time, but too few judges to meet the demand. Some called for more chancery judges, and others wanted to abolish the chancery courts and vest equity jurisdiction in the circuit courts, which were already in place serving every county.
In 1868, there was another constitutional convention formed due to Reconstruction. Its constitution once and for all established chancery court as a separate court, with chancellors sitting in districts across the state, comparable to already-established circuit court system. The concurrent jurisdiction arrangement with circuit court was terminated, as were the probate courts; the chancery courts with jurisdiction over the matters they fomerly handled.
In the wake of the 1868 constitution, the legislature began to address dissatisfaction with the patchwork of court procedures and rules by passing laws dictating procedures to the courts.
The provisions of the 1868 constitution for chancery carried over into the 1890 constitution, for the most part.
Over the years there were few changes in court legislation. In 1916, the legislature passed a bill requiring that the former method of taking testimony by deposition in chancery be abolished in favor of oral testimony.
In 1924, the legislature adopted the Chancery Practice Act, which settled once and for all, until 1981, that the legislature, and not the courts, would control the procedural and evidentiary rules of the courts.
This information is distilled from Judge Griffith’s Mississippi Chancery Practice, 2nd Ed., 1950.
September 18, 2012 § 2 Comments
It was 225 years ago this week, on September 17, 1787, that the Constitution of the United States was adopted and sent to the various states for ratification. It would take three years after that to achieve ratification by the requisite nine states.
The convention, which met in secret in the Pennsylvania State House, took 100 days to produce what is the organic law of our nation. That three and a half months was filled with drama, rancor, conflict, backroom negotiations and masterful compromise.
Of the fifty-five delegates who were elected to the convention 34 were lawyers, 8 had signed the Declaration of Independence, and almost half were Revolutionary War veterans. The remaining members were planters, educators, ministers, physicians, financiers, judges and merchants. About a quarter of them were large land owners and all of them held some type of public office (39 were former Congressmen and 8 were present or past governors).
Of the 55 elected delegates, only forty-two attended most of the meetings, and of those thirty-nine actually signed the Constitution. Nineteen of the members who were chosen to represent their state never attended a meeting, some because their state would not or could not pay their expenses, some due to health, and some for political reasons. Patrick Henry, although elected, refused to attend because he “smelt a rat.” Three members, Edmond Randolph and George Mason of Virginia, and Elbridge Gerry of Massachusetts refused to sign, primarily due to the lack of a bill of rights.
The durability of the Constitution is itself a marvel. It has been effect for more than 220 years, longer than any other instrument of its kind. And its original form has proven durable as well. Although more than 11,000 amendments have been introduced in Congress, only thirty three have gone to the states to be ratified and only twenty seven have received the necessary approval from the states to actually become amendments to the Constitution.
The genius of the Constitution’s balance of powers and protection of individual rights has long been recognized. Many states and foreign governments emulate the Constitution in their own organic law.
To me, though, the genius of the Constitution lies in how it came about. It was the product of intensive negotiation and clever compromise. No one who came into the convention left with all he wanted to achieve, and everyone had to give some ground. The crafting of this greatest article of law is a model for the way that all law coming in its wake should be crafted.
If you’re looking for an entertaining read on the subject, I recommend David O. Stewart’s The Summer of 1787, a brilliant account of the proceedings and the personalities of the participants.
March 13, 2012 § Leave a comment
Until 1991, the only way to get child support for a period predating your judgment was under MCA § 93-9-11, which allows the court to assess past education and necessary support and maintenance for a child for “one (1) year next preceding the commencement of an action” of paternity.
That changed with the case of Lawrence v. Lawrence, 574 So.2d 1376, 1384 (Miss. 1991), which held that the chancellor may make an upward modification of child support effective as of the date of filing of the pleading seeking modification. Downward modification is effective as of the date of the judgment of modification.
In the case of Strong v. Strong, 981 So.2d 1052, 1054-55 (Miss.App. 2008), the parties entered into a consent for divorce on the sole ground of irreconcilable differences and submitted the following matters for adjudication by the court:
“The parties submit all other issues relating to the extent of the Husband’s visitation with the children, child support, the existence of temporary child support arrearage, health insurance coverage for the children, payment of medical expenses not covered by insurance, life insurance with the children as beneficiaries, claiming the children as dependants for tax purposes, payments of college expenses; and all other related child visitation and support issues to the Court for adjudication.” [Emphasis added]
The court of appeals held that language adequate to uphold the chancellor’s decision to award temporary child support for the twelve months preceding the temporary order in the case, where the payor did not object to presentation of proof on the point. The court said:
“¶ 13. In order to obtain child support, it must be requested in the pleadings or be tried by the consent of the parties. Lee v. Stewart, 724 So.2d 1093, 1095-96 (¶¶ 3-4) (Miss.Ct.App.1998). Lee is instructive to this particular case. There, the chancellor awarded one year of past-due support even though the issue was never raised in the original or amended complaints. Id. at 1095(¶ 3). This Court held that since Lee failed to make a contemporaneous objection when the evidence was introduced on the issue at trial, the issue was tried with Lee’s implied consent. Id. at 1096(¶ 4) (citing Atkinson v. Nat’l Bank of Commerce of Miss., 530 So.2d 163, 166 n. 2 (Miss.1988)).”
It is interesting that both Strong and Lee turn on either a pleading for relief or trial of the issue without objection. The clear implication is that if you include a prayer in your pleading for past child support, it will open the door to that relief by the court.
Whether to grant retroactivity is discretionary with the court. Weeks v. Weeks, 29 So.3d 80, 89 (Miss. App. 2009). I take the position that you must include a specific request for retroactivity in your pleading, or I will not grant it. My rationale is that you are trying to take money (i.e., property) from the other party, and that requires due process under the Fifth Amendment, which in turn requires adequate notice and opportunity to be heard.
August 8, 2011 § Leave a comment
It is possible for parties and witnesses to invoke their Fifth Amendment privilege against self-incrimination in a civil suit.
You may have experienced some scenarios, or you can imagine them: A party is asked questions about a possibly fraudulent tax return; there are questions that some of the property accumulated in the course of a business subject to equitable distribution may have been criminally acquired; questions about adulterous misconduct could, conceivably, subject the interrogatee to criminal prosecution.
In the case of Morgan v. U.S.F.& G., 222 So.2d 820 (Miss. 1969), the MSSC set out the ground rules at page 828:
- The witness must take the witness stand;
- The witness must invoke the privilege on a question-by-question basis;
- The claim of privilege is determined by the court, and not by the witness;
- An inference may be drawn against the witness.
“The yardstick to be used by the courts in ruling upon privilege in a civil case is whether there is a real and substantial hazard of incrimination resulting from a witness’s answer to a [pleading] or from his testimony in open court … [citations omitted] … The central standard for the privilege’s application has been whether the claimant is confronted by substantial and “real,” and not merely trifling or imaginary, hazards of incrimination … ” (at 830).
The privilege is waivable (at 829). See also, Moore v. Moore, 558 So.2d 834 (Miss. 1990); and Wallace v. Jones, 572 So.2d 371 (Miss. 1990).
Although the attorney may assist and advise the witness, it is the duty of the witness himself to make an affirmative indication to the court that he himself is invoking the privilege. Harrell v. Duncan, 593 So.2d 1, 6 (Miss. 1991).
It is up to the witness to provide the court with enough information for the court to make a determination whether the answer would, in fact, incriminate the witness. Hinds County Board of Supervisors v. Common Cause, 551 So.2d 107, 112 (Miss. 1989). If the court decides that the answer could not be incriminatory, then the witness must answer the question. In re Knapp, 536 So.2d 1330, 1334-5 (Miss. 1988).
There is an anomalous case in Gibson v. Wright, 870 So.2d 1250 (Miss. App. 2004), in which the COA essentially held that a non-party witness could invoke a blanket Fifth Amendment privilege against testifying in a civil trial. You will have to read the decision yourself and draw your own conclusions as to what effect that decision has on the status of Fifth Amendment protections in civil proceedings.
July 19, 2011 § 1 Comment
The hamlet of Gould, Arkansas, population 850 or so, has a lot in common with 1939 Munich, Germany. If the Gould City Council has its way, citizens in Gould will enjoy the same lack of basic civil rights that Germans did under the Nazis more than 70 years ago.
You see, the City Council of Gould last week enacted a city ordinance that states “No new organizations shall be allowed to exist within the city of Gould without approval from majority of the city council.” The Mayor vetoed the ordinance, complaining that it was patently unconstitutional, but the council is expected to override the veto.
I have not read the ordinance in its entirety, but I saw one of the council members interviewed on Memphis news last weekend, and she explained that any group will need to convince the council of the merits of their group. Once satisfied, the council will grant permission for it to meet, and will decide what limitations will be imposed. “You can’t just come in here, get with four people and decide to start an organization,” she said, adding, “You will go through your city council with legal documentation and get approval.” The councilwoman said that someone has to be in control, and the city council is there for that purpose. That’s the way it works, she said; you go to the person in control and get permission.
Prohibited would be unauthorized meetings between citizens and the mayor, meetings of civic groups and church groups, and even family conversations about politics over the dinner table — unless the council grants its blessing.
It seems that the council was reacting to a local group that had been formed to question and criticize the council’s actions in not funding improvements to the community sewer system, or some such dispute, and the council did not appreciate the criticism. Their solution to the criticism was to eliminate it rather than address its substance. In other words, when you are faced with opposition, eliminate it.
There is no question that government without opposition is much more efficient and easy than when plain old voters get in the way. Ask any Nazi or Soviet, or any other totalitarian; they’ll tell you how much easier things flow when the citizenry doesn’t get in the way. Democracy is messy and contentious. Feelings get hurt. Things get said. Due process gums up the works. Dictatorship flows so much more smoothly.
But the First Amendent unquestionably gives the citizens of Gould, as citizens of the United States, the right to assemble peaceably, to speak out, to criticize, and to be heard by their elected officials. Our government is designed to let “we the people” mouth off, gripe to high heaven, and raise all manner of ruckus. Our forefathers launched a revolution based on the fact that the English tyrant would not pay any heed to their grievances. It’s no accident that the fundamental rights to speak, assemble and petition are in the very First Amendment to our Constitution.
I hope that someone from Little Rock pays a friendly visit to the misguided town council of Gould and convinces them of the obvious: that they are in violation of the law, and that they will save their town and taxpayers a lot of money by not requiring this sad episode to go to litigation involving lots of scarce dollars for attorneys fees. Scarce dollars that could be used to fix that sewer system.