September 27, 2019 § Leave a comment
Burnita Shelton Matthews’ brothers were lawyers, but her father wanted her to be a musician. There were no women lawyers or judges in Copiah County, or in Mississippi 100 years ago.
On Sept. 16, Circuit Judge Tomika Harris-Irving, the first woman and first African-American judge of Mississippi’s 22nd Circuit Court District, greeted a crowd of more than 100 who gathered in the courtroom in Hazlehurst to celebrate the historic career of Judge Matthews.
Judge Irving invoked the soaring aspirations of astronaut Mae Jemison, who said, “Never limit yourself because of others’ limited imagination; never limit others because of your own limited imagination.”
Judge Matthews “was ahead of her time, and a trailblazer,” said Judge Royce C. Lamberth, former Chief United States District Judge for the District of Columbia, who knew her well.
Matthews became the first female federal trial court judge in the nation when President Harry S. Truman appointed her to the U.S. District Court for the District of Columbia on Oct. 21, 1949.
The state of Mississippi would wait another 58 years to see the first female federal district judge preside in a Mississippi courtroom. Chief U. S. District Judge Sharion Aycock of Fulton was nominated by President George W. Bush on March 19, 2007, and confirmed by Congress on Oct. 4, 2007. She became Chief Judge of the Northern District of Mississippi – the first woman chief judge of the federal district court in Mississippi – on June 2, 2014.
Judge Aycock said that she learned of Judge Matthews after joining the federal bench. “Her story is incredible and so inspiring,” Judge Aycock said.
Among the crowd that gathered to honor Judge Matthews’ legacy were about a dozen women judges, including some whose careers marked milestones for women in the judiciary. U.S. Magistrate Judge Linda Anderson of Jackson is the first female magistrate and the first African American magistrate of the Southern District of Mississippi. Chief U.S. Bankruptcy Court Judge Katharine Samson of Gulfport is the first woman bankruptcy judge in Mississippi and the first female chief bankruptcy judge in the state. Justice Dawn Beam of Sumrall is the only woman currently serving on the Mississippi Supreme Court. Mississippi Court of Appeals Chief Judge Donna Barnes of Tupelo is the state’s first female Court of Appeals Chief Judge. All four of the female state Court of Appeals judges attended: Chief Judge Barnes, Presiding Judge Virginia C. Carlton of Jackson, Court of Appeals Judge Latrice Westbrooks of Lexington, and Court of Appeals Judge Deborah McDonald of Fayette.
Judge James E. Graves Jr. of the Fifth U.S. Circuit Court of Appeals was the ranking member of a federal judiciary in attendance. Other guests included Judge Daniel Jordan of Jackson, Chief Judge of the Southern District of Mississippi; U.S. District Judge Carlton Reeves of Jackson; Senior Judges David Bramlette III of Natchez, Louis Guirola Jr. of Gulfport, and Tom S. Lee of Forest; U.S. Magistrate Judge Robert Walker of Gulfport; U.S. District Court Clerk Arthur Johnston; and U.S. Bankruptcy Court Clerk Danny L. Miller.
Matthews as a teenager may have sat in the courtroom in Hazlehurst where the ceremony was held. The Copiah County Courthouse would have been new then. Construction was completed in 1903.
Matthews was interested in law from an early age. Her father, Burnell Shelton, was Copiah County Chancery Clerk and Tax Collector. Matthews worked in the Chancery Clerk’s office upon occasion, but her father wanted her to pursue music rather than law, said Judge Lamberth.
After a brief career teaching music in Fayette, Texas and Georgia, Matthews, a Cincinnati Conservatory of Music graduate, moved to Washington, D.C. There she could get into law school, something not possible then in Mississippi. When she earned her second law degree in 1920, no firm or agency would hire her – not even the Veterans Administration, where she had worked by day as a clerk while attending classes at night. So she formed her own successful law firm and joined the women’s movement.
As a member of the National Woman’s Party, Matthews participated in silent pickets outside the White House as women sought the right to vote. She would later recount that she never spoke during the pickets, as anyone who spoke was at risk of being arrested, and an arrest on her record could have prevented her from being able to practice law.
Matthews served as counsel to the National Woman’s Party 1921-1934. The National Woman’s Party was a leading force for passage of the Nineteenth Amendment, which in 1920 granted women the right to vote. Matthews also worked on unsuccessful efforts to pass the Equal Rights Amendment. Judge Lamberth said that one of her goals was to see adoption of the proposed amendment before she died. Congress adopted the ERA in 1972, but the measure failed to gain ratification in three-fourths of state legislatures. Mississippi did not ratify the amendment.
Matthews also left her mark on Washington, D.C., as a real estate lawyer. The U.S. Supreme Court sits on the site which was once the office of the National Woman’s Party. William Howard Taft wanted the property to build a courthouse for the Supreme Court, which at that time heard cases in the Capitol. Taft, who was Chief Justice of the U.S. Supreme Court after he served as President, prevailed in acquiring the property, but at a steeper price than the government wanted to pay. The National Woman’s Party lost at condemnations proceedings that took the property, but Matthews negotiated a settlement of almost $300,000 for the building, a huge sum for that time. The Woman’s Party moved to a spot nearby.
Judge Lamberth noted that U.S. Supreme Court Justice Ruth Bader Ginsburg considered Judge Matthews a trailblazer and inspiration.
President Harry S. Truman appointed Matthews as a Judge of the U.S. District Court for the District of Columbia on Oct. 21, 1949. It was a recess appointment to a newly created seat on the court. President Truman nominated Matthews to the same position on Jan. 5, 1950. Judge Matthews was confirmed by the U.S. Senate on April 4, 1950, and received her commission on April 7, 1950.
Judge Matthews’ commission, signed by the President, and her portrait were displayed at the front of the courtroom during the Sept. 16 ceremony. Courthouse maintenance supervisor Stanley Martin hung the historic document and portrait on the courtroom wall as guests went across the street for a reception.
Judge Lamberth noted that Judge Matthews hired only women as her law clerks. She believed in providing opportunities to capable women in the male dominated field. Her former clerks were high achievers, including one who became a judge and two who became assistant U.S. attorneys.
As a federal district judge, Judge Matthews presided over trials for murder, rape, robbery and other crimes. Among famous defendants was Jimmy Hoffa, then vice-president of the teamsters union. A jury acquitted him of bribery.
Judge Matthews took senior status from the federal trial bench on March 1,1968, but continued to hear cases for 10 more years. In addition to presiding over trials, she sat on appellate panels of the U.S. Court of Appeals for the District of Columbia Circuit. One of her notable cases was a 1971 U.S. Court of Appeals ruling that said disabled people receiving Social Security benefits were entitled to hearings before benefits were terminated. She also heard cases before the United States Court of Customs and Patent Appeals. She had earned a master’s degree in patent law in 1920 from the National University School of Law, now George Washington University Law School. She earned an LL.B in 1919.
Judge Lamberth said that one of the highlights of his 1987 investiture was that Judge Matthews attended and wished him well. She died the following year in Washington at age 93.
Judge Lamberth knew Judge Matthews before he went on the bench, from his time as chief of the Civil Division of the D.C. District Court. He recalled many conversations about her efforts as a suffragist. She was particularly interested in later policies regarding demonstrations. Lamberth, as Chief of the Civil Division of the U.S. Attorney’s Office, was the point person coordinating with law enforcement regarding demonstrations around the Capital.
Samuel E. Shelton, 89, said that he never met his cousin. He’s named after her brother. Shelton beamed as he sat on the front row with about a dozen relatives during the ceremony, and happily sat for pictures alongside the judge’s portrait.
Samuel Shelton’s niece, Bessie Shelton Trovato, lives near the Shelton Cemetery where Judge Matthews is buried. She said the event will help people across the state learn of the judge’s contributions, especially in advancing the role of women.
Supreme Court Presiding Justice Jim Kitchens grew up in Crystal Springs and still lives there. “The incredible, uplifting saga of Judge Burnita Shelton Matthews was news to me! I’ve known of the Shelton Cemetery for a long time, but had no idea that a person of such historic importance is buried there. Judge Shelton’s extraordinary life and her achievements – all highly unlikely during the times in which she lived – provide another good reason for me to be proud to be a Mississippian, and, in particular, a Copiah Countian. My only regret is that I didn’t know her.”
One of the happiest people in the room appeared to be Copiah County Chancery Clerk Steve Amos, who organized the ceremony. Amos, an avid historian, devotes considerable energy to historic preservation. He called Judge Matthews’ history “one of the American dreams,” as her father didn’t want her to pursue law.
Judge Matthews was the third woman in the nation to serve at any level of the federal judiciary. In 1928, President Calvin Coolidge nominated Genevieve Rose Cline of Ohio to the U.S. Customs Court, now known as the Court of International Trade. In 1934, President Franklin Delano Roosevelt named Judge Florence Allen of Ohio to the U.S. Court of Appeals for the Sixth Circuit.
In 1953, three years after Matthews was appointed to the federal bench in Washington, Mississippi Gov. Hugh White appointed Mississippi’s first female judge, Zelma Wells Price of Greenville, to the Washington County Court. Price put women on juries when state law didn’t permit women to serve.
Today, almost a third of state court judges are women: 50 of 150 judges, not including Justice Court and Municipal judges. Copiah County’s two Justice Court judges are women. Thirty percent of the lawyers licensed to practice in Mississippi are woman: 2,752 of 9,033 in active practice. The President of the Mississippi Bar and the deans of both law schools are women. Nationwide, there are 363 female federal trial and appellate judges, including three U.S. Supreme Court justices. Women make up one-third of the active federal court judges in the country.
— From a press release issued by the MSSC
August 7, 2019 § 1 Comment
In the divorce case between Marcus and Sumie Sanders, the parties entered an agreed order that their temporary hearing would be submitted by affidavits, without live witnesses. The parties submitted their affidavits, and the court awarded custody of the parties’ daughter to Sumie.
Following entry of a final judgment in his case, Marcus appealed. One issue he raised was that the court in his district required submission of temporary issues by affidavit, which amounts to an unapproved local rule that prejudiced him in the ultimate outcome of the case.
Judge Jack Wilson’s opinion in Sanders v. Sanders, a May 14, 2019 COA decision, addressed the issue:
¶39. On appeal, Marcus argues that the Fourteenth Chancery Court District enforces a local rule requiring temporary custody hearings to be decided by affidavits only. He argues that the rule is invalid because the Mississippi Supreme Court has not approved it. See M.R.C.P. 83(b) (“All . . . local rules . . . adopted before being effective must be filed in the Supreme Court of Mississippi for approval.”). Marcus further argues that the chancellor’s temporary ruling impacted her final ruling, and yet because there was no real hearing on temporary custody, the chancellor’s temporary ruling “cannot be reviewed.”
¶40. We find no reversible error for three reasons, two of which are related. First, the record contains only an agreed order. The record does not show that there actually is an “unapproved local rule.” The chancery court’s website does provide a fill-in-the-blank template for an order setting a hearing on temporary matters by affidavit. [Fn omitted] However, there is nothing to show that this template equates to a court rule that such hearings must be decided on affidavits alone. Nor does the template establish that the chancellors of the district will not hold a live hearing or consider live testimony upon request.
¶41. Second and related, Marcus never raised this issue in the trial court. There is nothing to show that he ever asked for a live hearing or to present live testimony. Because Marcus did not raise this issue, we have no way of knowing whether there is an unapproved rule or whether the chancellor would have heard and considered live testimony. Therefore, the record is inadequate to review Marcus’s claim, and the issue is waived and procedurally barred on appeal. See, e.g., Adams v. Rice, 196 So. 3d 1086, 1090 (¶13) (Miss. Ct. App. 2016) (“A party is not allowed to raise an issue for the first time on appeal.”).
¶42. We note that the Supreme Court addressed a similar issue in Fredericks v. Malouf, 82 So. 3d 579, 582 (¶¶15-16) (Miss. 2012). In that case, the defendants argued that they were prevented from obtaining a hearing on their motion to transfer venue because of an unapproved local rule that stated that hearings on motions were not “automatically granted” and that the parties would “be notified by the court” if the court determined that a hearing was necessary. Id. at (¶15). The Supreme Court concluded that the local rule was “in derogation of Mississippi Rule of Civil Procedure 83, because [it had] never been submitted to [the Supreme] Court for approval.” Id. at (¶16). Nevertheless, the Supreme Court also “emphasize[d] that the trial court’s rule did not prohibit the [d]efendants from requesting a hearing; there [was] no evidence that the trial court would not [have] consider[ed] such a request; and no order exist[ed] denying such.” Id. In other words, the unapproved local rule did not excuse the defendants’ failure to at least request a hearing on their motion. Likewise, in this case, we conclude that the alleged existence of a local rule does not excuse Marcus’s failure to request a live hearing on temporary custody.
¶43. A third reason that Marcus’s argument is without merit is that he fails to establish any prejudice. “A temporary custody order is just that, temporary; it does not change the underlying burden of proof.” Neely v. Welch, 194 So. 3d 149, 160 (¶33) (Miss. Ct. App. 2015) (quoting Baumgart v. Baumgart, 944 S.W.2d 572, 573 (Mo. Ct. App. 1997) (brackets omitted)). The chancellor must conduct an Albright analysis and decide the issue of permanent custody de novo regardless of the temporary order. See id. Marcus overstates the significance of the temporary custody order as it relates to the chancellor’s final ruling and Albright analysis. The chancellor’s final judgment found that the continuity of care factor “strongly favor[ed]” Sumie because Sumie had “always” been Kristen’s primary caregiver, “[b]oth prior to and after the issuance of [the] [t]emporary [o]rder.” (Emphasis added). The chancellor’s analysis was based on the totality of the evidence and only briefly mentioned the temporary custody period. In addition, for the reasons discussed above, there is substantial evidence to support the chancellor’s permanent custody decision.
I would add that two points: (1) Marcus agreed to the affidavit procedure by agreed order, so he should be bound by that agreement; and (2) MRCP 43 expressly allows the trial judge to decide fact issues raised in motions by affidavits.
This argument raises the question: when do local practices and judges’ preferences become local rules? We have all kinds of local practices here in my district that reflect the judges’ preferences as to how to conduct business, but we have no local rules. As we all know, practice varies from one district to another, and even among chancellors within a district. And for good reason. What works in the Delta or on the Coast may not be practical here. Workloads vary, judges’ personalities and approaches to work are different, and different people have different work-styles. I hear lawyers bemoan the fact of varying practices among districts from time to time, but I really don’t believe the answer is to squeeze all chancellors into mechanical uniformity.
January 15, 2019 § Leave a comment
It’s not often that an appellate case ends in a tie, but it does happen every now and then.
It happened in a recent COA case, Bounds v. Benson, et al., decided by the court on December 11, 2018.
Footnote 1 of the court’s opinion sets the stage:
Six judges of this Court recused themselves from participation in this case. Because a quorum of six judges is required to reach a decision, this Court asked the Chief Justice of the Mississippi Supreme Court to appoint two special judges to participate in the decision of this appeal pursuant to Mississippi Code Annotated section 9-1-105(1) (Rev. 2014). By order entered on July 27, 2018, the Chief Justice appointed Senior Status Judge Larry E. Roberts and Senior Status Judge William E. Gowan to serve as special judges for this case, including any motion for rehearing.
Griffis, Wilson, Westbrooks, and Tindell stuck around to participate. That means that Fair, Carlton, Lee, Greenlee, Barnes, and Irving bailed.
So the learned remnant of the COA convened, along with their special appointees, numbering six in all, and here is the entire per curiam opinion documenting what transpired:
¶1. The judgment of the Lafayette County Chancery Court is affirmed by an evenly divided Court. See Wise v. Valley Bank, 861 So. 2d 1029, 1033 (¶10) (Miss. 2003) (“We hold that when this Court is evenly divided, the order or judgment of the court from which the appeal is taken must be affirmed.”).
Yes, the lone footnote is longer than the opinion.
December 20, 2018 § Leave a comment
Press Release from the office of Governor Bryant:
JACKSON – Gov. Phil Bryant announced today he has appointed Mississippi Court of Appeals Judge Kenny Griffis to the Mississippi Supreme Court. He replaces Chief Justice William L. (Bill) Waller, Jr., of District 1, Position 1, who is retiring Jan. 31, 2019. Griffis’ appointment is effective Feb. 1, 2019.
Mississippi Supreme Court District 1 is comprised of Bolivar, Claiborne, Copiah, Hinds, Holmes, Humphreys, Issaquena, Jefferson, Kemper, Lauderdale, Leake, Madison, Neshoba, Newton, Noxubee, Rankin, Scott, Sharkey, Sunflower, Warren, Washington, and Yazoo counties.
“Judge Griffis has served exceptionally on the Mississippi Court of Appeals, and his wealth of experience on the bench will prove very valuable as he moves into his new role,” Gov. Bryant said. “He has an outstanding legal mind and is highly respected among his peers. I have full faith Judge Griffis will be a real asset to the Mississippi Supreme Court. Additionally, I am thankful for Chief Justice Waller for admirably serving the people of Mississippi for more than 22 years on the state’s highest court, and I wish him well in retirement. The people of Mississippi owe him a debt of gratitude.”
Griffis has served since 2003 on the Court of Appeals for District 3, Position 2. He recently was named Chief Judge of the Court after the retirement of Chief Judge L. Joseph Lee.
“I thank Governor Bryant for this appointment, and I am humbled by his expression of confidence in me,” said Griffis. “It has been an honor and a privilege to serve the people of Mississippi on the Court of Appeals for the last sixteen years. I look forward to the opportunity to serve on the Supreme Court. I am committed to the rule of law, to apply the law fairly and impartially and to uphold the Constitution of the United States and the Constitution of the state of Mississippi.”
Prior to being elected to the Mississippi Court of Appeals, Griffis was in private law practice at the Griffis Law Firm, PLLC, in Ridgeland, Miss., from 2001-2003. Additionally, he was in private practice from 1995-2000 with Lingle, Griffis & Southern, PLLC, in Jackson, Miss.
Griffis has served as an adjunct professor of law for both the Mississippi College School of Law and the University of Mississippi School of Law. He has also been an adjunct professor and instructor at Belhaven University and Meridian Community College.
He is a member of The Mississippi Bar, the Magnolia Bar Association, the Madison County Bar Association, the Capital Area Bar Association, and the Rankin County Bar Association. Griffis is also a member of the Downtown Jackson Rotary Club and is a Paul Harris Fellow.
He currently serves as a member of the Mississippi Supreme Court’s Committee on Continuing Judicial Education and has also served on the Supreme Court’s Advisory Committee on the Civil Rules, as Chair of the Bench Bar Committee of The Mississippi Bar, and the Committee on Electronic Filing and Case Management Systems.
He earned his Bachelor of Accountancy and Juris Doctorate from the University of Mississippi and was a Certified Public Accountant from 1984 through 2007.
Griffis and his wife, Mary Helen, are the parents of five boys. They live in Ridgeland, Miss., and attend Christ United Methodist Church.
November 30, 2018 § Leave a comment
These are, of course, uncertified, and are the best information I have available to me today (new chancellors names in bold):
District One (Alcorn, Itawamba, Lee, Monroe, Pontotoc, Prentiss, Tishomingo, and Union).
Place 1 (being vacated by retirement of Chancellor John A. Hatcher, Jr.) Brad Tennison.
Unopposed were Chancellors Bailey, Malski, and Mask.
District Two (Jasper, Newton, Scott) (being vacated by retirement of Chancellor H. David Clark, II)
Robert M. Logan, Jr., unopposed
District Three (Desoto, Grenada, Montgomery, Panola, Tate, and Yalobusha)
Unopposed were Daniels, Lundy, and Lynchard.
District Four (Amite, Franklin, Pike, and Walthall)
Unopposed were Halford and Smith.
District Five (Hinds).
Sub 5-2 (being vacated by retirement of Chancellor Patricia D. Wise) Crystal Wise Martin.
Sub 5-4 (being vacated by retirement of Chancellor William H. Singletary) Tiffany Grove.
Unopposed were Owens and Thomas.
District Six (Attala, Carroll, Choctaw, Kemper, Neshoba, Winston)
Place 2 (being vacated by retirement of Chancellor Edward C. Fenwick) Kiley Kirk.
Unopposed was Kilgore.
District Seven (Bolivar, Coahoma, Leflore, Quitman, Tallahatchie, Tunica)
Sub 7-2 (being vacated by retirement of Chancellor Jon Barnwell) Willie J. Perkins, Sr.
Unopposed were Farris-Carter and Sanders.
District Eight (Hancock, Harrison, Stone)
Place 3. Incumbent Chancellor Sandy Steckler def. by Margaret Alfonso.
Unopposed were Bise, Persons, and Schloegel.
District Nine (Humphreys, Issaquena, Sharkey, Sunflower, Warren, Washington)
Sub 9-1 (being vacated by retirement of Chancellor Marie Wilson) Bennie L. Richard, unopposed.
Sub 9-2 Incumbent Chancellor Jane R. Weathersby def. by by Debra M. Giles.
Unopposed was Barnes.
District Ten (Forrest, Lamar, Marion, Pearl River, Perry)
Place 3 (being vacated by retirement of Chancellor Johnny L. Williams) Sheila H. Smallwood.
Place 4 (being vacated by retirement of Chancellor M. Ronald Doleac) Chad Smith.
Unopposed were Gambrell and Sheldon.
District Eleven (Holmes, Leake, Madison, and Yazoo)
Unopposed were Brewer, Clark, and Walker.
District Twelve (Lauderdale, Clarke)
Place 1 (being vacated by retirement of Chancellor Jerry G. Mason) Charles E. Smith.
Unopposed was Primeaux.
District Thirteen (Covington, Jefferson Davis, Lawrence, Simpson, Smith)
Place 1. Incumbent Chancellor David Shoemake def. John Allen Bufington.
Unopposed was Martin.
District Fourteen (Chickasaw, Clay, Lowndes, Noxubee, Oktibbeha, Webster)
Place 1 (being vacated by retirement of Chancellor Kenneth M. Burns) Rodney Faver (appears to have won; affidavit ballots are still being counted).
Place 2 (being vacated by retirement of Chancellor H. James Davidson) Joseph N. “Joe” Studdard.
Place 3 (being vacated by retirement of Chancellor Dorothy W. Colom) Paula Drungole-Ellis.
District Fifteen (Copiah, Lincoln) (being vacated by retirement of Chancellor Edward E. Patten)
District Sixteen (George, Greene, Jackson)
Place 2 (being vacated by retirement of Chancellor Jaye A. Bradley) Tanya Hasbrouck.
Place 3 (being vacated by retirement of Chancellor Michael L. Fondren) Mark A. Maples.
Unopposed was Harris.
District Seventeen (Adams, Claiborne, Jefferson, and Wilkinson)
Unopposed were Davis and Ward.
District Eighteen (Benton, Calhoun, Lafayette, Marshall, Tippah)
Place 1 (being vacated by retirement of Chancellor V. Glenn Alderson) Lawrence L. Little.
Unopposed was Whitwell.
District Nineteen (Jones and Wayne)
Unopposed was McKenzie.
District Twenty (Rankin)
Place 2 (being vacated by retirement of Chancellor John S. Grant) Troy F. Odom.
Unopposed were McLaurin and Roberts.
Special Thanks to Beverly Kraft of the Supreme Court for helping fill in the information gaps.
September 10, 2018 § 2 Comments
The National Judicial College’s Judicial Edge publication in July included some insights from around the country into common missteps by new judges. Judge Griffis posted this on his blog in July.
10 common mistakes new judges make—and how to avoid them
Earlier this month we emailed current and past NJC faculty asking for the most common mistakes they see new judges make and advice on how to avoid them. Submissions began pouring in almost as soon as we hit send.
We had so many, in fact, that we’re going to break them up into installments, in this month’s issue and next. Here are the first 10:
- They shy away from making decisions
“I have been a judge for 25 years. Over the years I have noticed many new judges have a difficult time making decisions. New judges come from the community and hear cases with their community lawyers. They sometimes are afraid of ruling against community lawyers. They have a hard time coming to grips with a judge’s responsibility to decide, as opposed to not ruling and hoping the case settles if the judge drags his/her feet too long.”
Judge John Lenderman
St. Petersburg, FL
- They accept every agreed order
“It is very, very tempting to new judges to sign off on agreed orders. For example, the parties will present agreed trial continuances, agreed protective orders that give them carte blanche to seal and redact, agreed briefing schedules, agreed expansions of page limits, plea bargains, and more. The solution to this problem is to not be afraid to say no. Trial date certainty is crucial to justice, and it can only be achieved if the court makes it clear that only good cause will warrant a continuance, and (usually) only once. Similarly, the court has an obligation to provide transparency: sealing and redaction defeats this goal. Nor does the court want to cede control of its calendar, including burying itself in long, late-filed reading, by signing off on parties’ agreement to change the court rules on briefing dates and page limits. And, of course, sentencing discretion is meaningless if the court simply signs off on plea agreements.”
Judge Catherine Shaffer
President, American Judges Association
- They forget to complete the record
“You have three best friends in the courtroom. They are: the record, the record, the record. Your best friends will never turn on you unless you lose your cool. The moral is, keep your cool. It is your courtroom and you get the last say. As long as you make the record, you will be fine.”
Judge Lee Sinclair
- They forget about … other important things
“Make sure your robe is on before taking the bench (I’ve been so engaged in thought I marched right into court forgetting my robe.) If you don’t have a court reporter, always double-check to make sure the recorder is on. No one likes to recreate a record.”
Judge Lin Billings Vela
Cripple Creek, CO
- They don’t go to judge school, and they don’t cut the cord
“I know this will seem self-serving, but many new judges do not take advantage of judicial education programs that will help them get started with the right mindset and skills. It also helps to sever the business and social links between a new judge and his/her former law firm. I remember my presiding judge telling me to get to the NJC during my first year on the bench. I attended General Jurisdiction. After returning, I felt better informed than ever before, and the local attorneys knew I had been through courses that would benefit everyone, including their clients. The professional distance between a new judge and those with whom a law firm connection existed is an important break, and I’ll never regret doing it through the NJC. I’m sure that all of the local lawyers appreciated knowing I was completely independent in my decision-making.”
Judge Jess Clanton
- They forget they aren’t a trial attorney anymore
“Stepping into the advocate role is a big mistake for new judges. Another mistake is failing to understand the need to create a full record and the importance of being the “conductor” of the proceedings. Those are just some of the issues we see.”
Judge Susan L. Formaker
- They place too much faith in court-appointed experts
“Newly appointed family law judges are often afraid of making mistakes that might harm children – which is important, of course. However, before relying on expert opinions, it is important to understand whether the expert has done a thorough and sufficient job of gathering data. Too often experts seem merely like stenographers who fail to get sufficient depth/breadth in their data gathering. The experts may not have not tested or considered multiple hypotheses before reaching conclusions. They may not have an adequate basis for their opinions or may be otherwise influenced by some type of cognitive or other bias(es). This is especially true when allegations of domestic violence exist in a case, in very high-conflict cases with children who refuse/resist contact with a parent, or in relocation cases.”
Forensic psychologist Philip M. Stahl
Queen Creek, AZ
- They try too hard to look dignified
“I believe many new judges are so concerned about appearing dignified that they can seem very remote and even uncaring. The solution to this is to learn and apply the lessons of procedural fairness. In reality, there is nothing undignified about being a good listener, a person who explains the neutral principles they are applying, someone who treats each party equally, or someone who speaks in plain language.”
Judge Catherine Shaffer
President, American Judges Association
- They don’t realize that…
1. “It is impossible to have equally talented and prepared attorneys on each side of every case.
2. There will be someone who will file a complaint against a judge, whether justified or not.
3. You will have no privacy. Attorneys as well as citizens expect to know where you are and what you’re doing IF YOU AREN’T IN THE COURTROOM.
4. Depending on type of judgeship, the amount of work will be unexpected. You will be placed on committees and asked to do assignments outside the description of the job.
5. There will rarely be enough time to sit and ponder the law quietly at your desk.
6. There will not be enough money to take a judicial training course outside your state. You should nonetheless volunteer to teach at Continuing Legal Ed classes. And you should know that judges are improved by taking Continuing Judicial Education courses, wherever they are held.”
Judge Cynthia L. Brewer
- They misunderstand their position
“Stay away from the phrase ‘In my court…’ It is not your court, it belongs to the people, it will always belong to the people, and you can be replaced.”
“Understand that the case before you is the most important case on the planet, and treat the people before you in that manner. Treat people the way you would want a family member to be treated if they were in court. Do not have ‘POLICIES.’ Have trust in your in-court staff. Listen more than speak. Do not rush your docket, no matter how busy it is. Take frequent breaks. Smile. Dress like a judge. Be humble. Be kind. Never show anger. Never assume anything before asking questions. Do not be afraid to say, ‘I do not know.’”
Judge Louis Schiff
Deerfield Beach, FL
August 27, 2018 § 4 Comments
The State of Mississippi filed suit in chancery court against a number of pharmacies for fraud and deceptive trade practices in connection with Medicaid reimbursements. The complaint sought the following relief:
(1) an order enjoining the Defendants from continuing the fraudulent, deceptive and/or unfair acts or practices complained of herein, and requiring correcting measures;
(2) an award of compensatory damages to the State in such amount as is
proved at trial;
(3) an award of actual damages;
(4) an award of all civil penalties provided for by statute;
(5) an award of punitive damages;
(6) an accounting of all profits or gains derived in whole or in part by the Defendants through their fraudulent, unfair and/or deceptive acts or practices complained of herein;
(7) a constructive trust of the moneys illegally and impermissibly obtained from the Defendants’ scheme;
(8) an order imposing a constructive trust on and/or requiring disgorgement by the Defendants of all profits and gains earned in whole or in part through the fraudulent, unfair and/or deceptive acts or practices complained of herein;
(9) an award of attorney fees, costs, and prejudgment interest; and
(10) such other and further relief as the Court may deem appropriate and just.
Defendants responded asking that the matter be transferred to circuit court because of the claims for money damages, and because they wanted to protect their right to a jury trial. The State objected.
The chancellor agreed with the defendants
In his order, the chancellor found that, although the State prayed for some equitable relief, the claims primarily involved recovery of actual and punitive damages. In deference to the Mississippi Constitution’s right to a trial by jury, the judge ruled that, when claims are connected to a contractual relationship or are otherwise involve a question of law, the questions of both law and equity are more appropriately presented in
circuit court. The judge held that the main relief sought was legal, and ordered that the case be transferred to circuit court. The State appealed.
In State of Mississippi v. Walgreen Co., et al., the MSSC affirmed. Justice Beam wrote the August 8, 2018, opinion for a unanimous court. The court first addressed and rejected the State’s argument that an injunction sought under MCA § 75-24-9 must be brought in chancery court. It then went on to deal with the transfer from the equity court to the law court. This is the portion of the opinion addressing chancery vs. circuit jurisdiction:
¶29. We recognize the importance of the State’s request for remedies, including an accounting and a constructive trust, which typically require the chancellor’s equitable review, and we certainly do not intend to devalue that importance here. But an application of the State’s equitable claims is not enough to limit jurisdiction to the chancery court; not even through the application of Section 75-24-9. We have held that chancery courts maintain “the discretion to award legal and even punitive damages as long as” their jurisdiction has attached. Southern Leisure Homes, Inc. v. Hardin, 742 So. 2d 1088, 1090 (Miss. 1999). Though, in matters like the one before us today, “it is more appropriate for a circuit court to
hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.” McDonald’s Corp. v. Robinson Indus., Inc., 592 So. 2d 927, 934 (Miss. 1991); see also Hardin, 742 So. 2d at 1090; Union Nat’l Life Ins. Co. v. Crosby, 870 So. 2d 1175, 1182 (Miss. 2004).
¶30. We reiterated this position in Era Franchise Systems, Inc. v. Mathis, 931 So. 2d 1278 (Miss. 2006). There, we noted that “equitable claims are more appropriately brought before a circuit court when they are connected to a contractual relationship or other claims tied to questions of law.” Mathis, 931 So. 2d at 1283 (citing Copiah Med. Assocs. v. Mississippi Baptist Health Sys., 898 So. 2d 656, 661 (Miss. 2005); Crosby, 870 So. 2d at 1175; RE/Max Real Estate Partners v. Lindsley, 840 So. 2d 709 (Miss. 2003)). In Mathis, Venit Mathis filed a complaint against multiple defendants alleging various claims, framed as a derivative action on behalf of REP–an organization in which he alleged to have a fifty-percent stake. Like the State in the matter before us, Mathis pleaded several causes of action and prayed for both legal and equitable relief. After the chancery court determined that it would be best to bifurcate the action, leaving the equitable claims in chancery court and transferring the legal claims to the circuit court, the defendants appealed. This Court reviewed the matter and determined that the chancellor had committed reversible error. Mathis, 931 So. 2d at 1283-1284. Following our holding in Crosby (stating that where a complaint seeks both actual and punitive damages, the “remedy is clearly legal rather than equitable in nature,” Crosby, 870 So. 2d at 1179), we determined that the circuit court’s general jurisdiction is better suited to try a case when doubt exists as to whether the claims are equitable or legal. Mathis, 931 So. 2d at 1282 (citing Burnette v. Hartford Underwriters Ins. Co., 770 So. 2d 948, 952 (Miss. 2000)). Finding that Mathis’s action revolved around issues stemming from contractual obligations not met by the defendants, we reversed the chancellor’s decision denying the defendant’s motion to transfer the matter to the circuit court. Id. at 1283.
¶31. Similarly, in the often-cited Crosby case, the plaintiffs brought an action to recover against the defendants for several common-law and statutory claims arising out of sale of insurance policies and allegedly exorbitant premiums. Crosby, 870 So. 2d 1175 (Miss. 2004). Although the plaintiffs requested a constructive trust, an accounting, and injunctive relief, the defendants claimed that the complaint sounded in tort and contract law–not equity–and requested the case be transferred to circuit court. Reviewing the matter on interlocutory appeal, this Court reversed the chancellor’s denial of the defendant’s motion to transfer, and determined that “each and every one of Crosby’s claims, even the equitable claims of unjust enrichment and constructive trust, arise from the sale and alleged breach of an insurance contract.” Id. at 1182. We noted that an argument alleging otherwise ignores the fact that, unless there was a contractual relationship between Union National and Crosby, she would have no claims arising from the sales, administration and service of the insurance policy. . . .The alleged mismanagement and misappropriation of premium money concerns Crosby’s contractual duty to pay for the insurance policy and Union National to provide her coverage. Id.
¶32. This analysis is directly applicable to the State’s claims against the pharmacies. While it is true that the State’s complaint does not plead the facts necessary to establish a breach-of-contract cause of action, we must look to “the substance, and not the form” of the claims in our resolution of a matter. Copiah Med. Assocs., 898 So. 2d at 661. With the State’s single theory of wrongdoing arising from the defendant’s obligations under the Medicaid provider agreements, the State’s decision to omit a breach-of-contract claim in no way affects the complaint’s substance: the claims asserted and the relief requested present legal arguments and legal remedies. Moreover, much like Crosby and Mathis, the heart of the complaint concerns a provider agreement (a contract), its terms, and the parties who failed to abide by the arrangement. While the equitable issues pleaded are relevant and not to be ignored, the legal issues which flowed from the pharmacies’ alleged inflated reimbursement requests predominate the State’s claims and requests for relief. As a result, jurisdiction properly lies in the circuit court.
¶33. Putting aside the State’s requests for restitution, accountings, constructive trusts, and injunctions, the complaint prays for millions of dollars in actual and punitive damages based on the defendants’ alleged unwillingness to comply with the signed provider agreements. Whether the State disagrees that the basis of these complaints sounds in contract is of no moment. Rather, as most of the claims are legal in nature, the circuit court is the appropriate forum to rule on the matter.
¶34. This decision in no way strips the Attorney General of his constitutional authority to pursue an injunction. Rather, it allows the State fully and fairly to pursue all claims against the defendants, while providing the defendants with an opportunity to have those issues presented to a jury.
The State, therefore, should fully and ably proceed with its complaint in circuit court.
I could quibble all day with the “general jurisdiction” vs. “limited jurisdiction” fiction and how it is so unhelpful to this discussion, but I’ll pass and submit to the principle that if the matter is an action for damages, it should go to circuit.
Having said that … <HERESY ALERT> … my question is, “Why, Mississippi, do we continue to put ourselves through this contortion when we could resolve it easily by merging our law and equity courts into one system?” I know that’s heretical, coming especially from a chancellor, but merger of law and equity has worked handsomely in almost all of the other United States for as many as 150 years without jurisprudential armageddon.
In a merged system, we would not have tug-of-wars between circuit and chancery. As many claims for relief as one has could be joined in a single action to be addressed by the court as appropriate.
Some say that would sacrifice the expertise in minor’s issues, probate, and family law that has been accumulated in chancery over the centuries. That is a somewhat valid concern, but I don’t see that the quality of judicial decisions in merged states is significantly less than Mississippi’s. Also, in some jurisdictions where number of judges and caseload are adequate, judges specialize in certain areas such as family law and criminal law, allowing development of expertise.
Some do not want to sacrifice the jobs of sitting chancellors in a merger, but I don’t think that merger would result in the loss of a single judge slot. We would still have the same number of cases to be handled, requiring at least as many judges as we have now.
Others say, “If it ain’t broke …” etc. To that I concede that it ain’t necessarily broke … but is it functioning as efficiently, justly, and equitably as it can and should?
We ought always be ready and willing to discuss and debate the best ways to fashion our court system.
July 24, 2018 § 4 Comments
Sue Cochrane served for 18 years as a Family Court Judge in Minnesota, until she was diagnosed with terminal cancer. She left the bench to concentrate on her health, and she blogs at The Movement of Healing, the focus of which, she says, is “on positive, uplifting and inspiring people, ideas and stories.”
The Fetzer Institute Blog did a post on Judge Cochrane’s ideas about a more humane approach to family law:
Sue Cochrane, JD, served 18 years on the family court bench. Her goal as a judicial officer: to bring family law into closer alignment with its mission to serve the needs of the public … and to do it with kindness. Quickly she learned the power of working with families as equals, without judgment. Through the years she has worked to empower families to create their own solutions through collaboration and to find ways to bring a vibrant and beating heart to the body of family court. This reflection is excerpted from her article “Putting a Heart into the Body of Family Law,” which first appeared in The Collaborative Review, a publication of the International Academy of Collaborative Professionals. The image that accompanies this post was done in a true spirit of collaboration between mother (Sue Cochrane) and her son Tom Cochrane-Cole, who begins art school this fall.
Envisioning a Family Court of the Future
The law is well known for being logical and dispassionate—linear and analytic thinking prevail in our courts. But in the admirable pursuit of truth and justice, the court can inadvertently deny the humanity of the very people it exists to serve.
When families are in conflict or in crisis, logic is insufficient to heal their pain and trauma. Human beings are not abstract legal concepts, after all. In family court, it is as much a matter of the heart as the head, but our deepest values, like empathy, care, and compassion are often treated as irrelevant in such a system. This is why many people—judges and lawyers included—find the legal profession unsatisfying, ineffective, and potentially harmful, especially in the realm of family conflict.
We’ve made huge strides in criminal courts by focusing on issues and needs: DWI court, drug court, mental health court, veterans court, homeless court, juvenile court, and more. They acknowledge the limitations of the traditional courts and bring in a holistic collaboration of services that respond swiftly and effectively to complex needs. We have barely scratched the surface of what we can do in family courts if we open up to innovation and collaboration from many angles and disciplines.
We can put a “heart” into the “body” of law known as family court, with five basic changes:
1. Put People First
Families in crisis need a place that welcomes them, all aspects of them, including their emotions. They need and deserve to be respected, heard, and included. Creating a system committed to meeting their needs above all other agendas is first.
2. Listen, Be Kind and Compassionate
I learned most clearly during my time on the bench that ultimately it was my listening skills that were most needed. People need to have their story heard, all of it. To me, this is the essence of a “court hearing.”
I found that people need to be accepted, with dignity, with their mistakes, their anger, their stress, and their pain.
This opening allows people to choose a path congruent with their deepest values. Not once did they need to be judged.
3. Allow People a Voice
At the most basic level, access to justice means allowing people to have a voice. Family courts should not judge the families who come for help. Instead, courts should empower people to solve their own problems with respect and care. If people received this from the moment they walked in, judges would rarely be needed.
4. Create a Space for Healing
The physical space of family court should be redesigned to focus on the needs of those who use it. As an example, the cost of incorporating art and design that calms people and heals trauma will be more than offset by the benefits received by families in pain, not to mention those who work there every day.
5. Shift Resources
Less than 5% of all family court cases go to trial. So why do courts insist that everyone file papers, receive a case number, pay hundreds of dollars for a filing fee, get a court date to see a judge, and then wait? Why are the 95% of those who will settle without a trial penalized unnecessarily?
Courts no longer need a full complement of trial judges and staff “at the top” when only 5% of families go to trial. Significant resources should be shifted to the point of first contact for families who arrive there, with or without lawyers. Collaborations with professionals at the entry level could provide helpful and responsive service immediately, cutting through all those untimely and unnecessary bureaucratic steps to get right to the heart of their problem.
When trying to work with or change systems, I am inspired by the Dalai Lama’s invocation:
Be kind whenever possible.
It is always possible.
July 17, 2018 § 1 Comment
Comments on this blog are limited to lawyers, judges, and other legal professionals. Yet I still get comments frequently from lay-people.
A recent proposed and unapproved comment by a frustrated pro se litigant highlights the tension between reasonable access to justice and the judge’s role as impartial tribunal:
I had a Judge finally rule that all evidence from previous case could be submitted to this new case. Of course, Defendants lawyers objected. Defendants lawyer then said that not of it was evidence, some were marked for I.D. only. The Judge said he wouldn’t even look at the I.D. ones. Being Pro Se, after spending about 8,000.00 on attorneys fees and not using my evidence, almost every bank statement, cancelled check sheet from the bank. I was asked by Judge, “What is it? I said a bank statement. Other attorney objected, said it was hearsay, and I had to put it in as I.D. After a couple times I just handed it to the other attorney but the Judge stated I had to say what it was. Therefore, it was objected to as hearsay. Printouts from a bank. Please..Check written out the casinos, lawsuits Plaintiff was hit with and depleted our funds, are not admissible. I.D. only which the next Judge will not use. I always thought that was depleting marital assets. Writing a brief for Supreme Court and this is way out of my league.
- In a contested case, the judge absolutely can not assist one side or the other over evidentiary hurdles, objections, or lack of basic litigation skills. A judge who does so has crossed, or is dangerously close to crossing, the line into advocacy.
- I have often said that I have never seen anyone who acted pro se in a contested case leave the courtroom in better shape than when they entered.
- ” … this is way out of my league.” Yes, it is. It takes lawyers around 3 years to absorb the basic knowledge base and elementary analytical skill to know how to get into the courtroom, and several years of experience on top of that to do a creditable job in litigation. Appellate cases require even more. There is a learning curve for every courtroom advocate. It’s painful to watch a pro se litigant try to master the same curve in a few hours that took a college-and-law-school-trained lawyer several years to master herself.
- The lawyer in this case was zealously representing his client, which is precisely his ethical duty. It may have seemed unfair to the pro se litigant, but she was not being treated unfairly; she was simply overmatched, and, again, the judge could not help her without becoming her advocate.
- No judge is going to let a lawyer overreach and take advantage of a pro se litigant, but that is solely in the interest of maintaining a neutral, fair playing field. A judge can not help one side to its benefit or to the other’s detriment.
June 26, 2018 § Leave a comment
Timothy Pryer, a state prisoner, filed a public records request. When he received a response he deemed inadequate, he filed suit against several individuals for damages per MCA § 25-61-15. One of the defendants was a circuit judge whose responses to his request Pryer considered to be insufficient.
In response, the judge filed a R12(b)(6) motion to dismiss either on the basis of judicial immunity or for statute of limitations. The chancellor granted the motion, and Pryer appealed.
The MSSC affirmed in Pryer v. Gardner, decided May 17, 2018. Since the case includes a lucid discussion of when and how judicial immunity applies, I thought I would excerpt it here. Justice Kitchens wrote for the unanimous court:
¶8. The doctrine of judicial immunity long has been recognized in Mississippi. Newsome v. Shoemake, 234 So. 3d 1215, 1223 (Miss. 2017). “[T]he best interests of the people and public order require that judges be immune from civil liability.” Loyacano v. Ellis, 571 So. 2d 237, 238 (Miss. 1990). It is the sound public policy of this state that judges are empowered to make decisions in the absence of fear that they will be held liable for their actions. Id. A person who believes a judge has acted contrary to or in excess of his or her authority may, however, file a complaint with the Mississippi Commission on Judicial Performance. Newsome, 234 So. 3d at 1225.
¶9. In Stump v. Sparkman, 435 U.S. 349, 355-56, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978), the United States Supreme Court held that “judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly.” In Loyacano, this Court recognized that, in the prior case of DeWitt v. Thompson, 192 Miss. 615, 7 So. 2d 529, 532 (1942), the Court seemingly left for another day the question of whether judicial immunity applies to malicious or corrupt acts. But Loyacano ultimately held that “[t]he doctrine of judicial immunity is fully recognized in Mississippi.” Loyacano, 571 So. 2d at 238. In Newsome, the Court held that, notwithstanding the plaintiff’s allegation that a judge was corrupt in his handling of a conservatorship, the judge was immune from civil liability. Newsome, 234 So. 3d at 1225. So judicial immunity in Mississippi extends even to acts of malice or corruption. The reason is that it is “a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself.” Id.(quoting Stump, 435 U.S. at 355-56, 98 S. Ct. 1099). Further:
It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision- making but to intimidation. Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967).
¶10. Judicial immunity does not extend to acts taken in the clear absence of jurisdiction. Weill v. Bailey, 227 So. 3d 931, 936 (Miss. 2017). However, judicial acts in excess of jurisdiction are subject to judicial immunity. Newsome, 234 So. 3d at 1223. In Newsome, the Court provided the following explanation of this distinction:
In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.
Newsome, 234 So. 3d at 1224 (quoting Stump, 435 U.S. at 357 n.7, 98 S. Ct. 1099 (citing Bradley v. Fisher, 80 U.S. 335, 352, 20 L. Ed. 646 (1871)). We have said that “[i]n order to determine the existence of judicial immunity one must look to whether at the time [the judge] took the challenged action he had jurisdiction over the subject matter before him.” Loyacano, 571 So. 2d at 238 (quoting Stump, 435 U.S. at 356, 98 S. Ct. 1099).