Self-Appendectomy

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.

Some thoughts:

  • 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.

The (Judicial) Immune System

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).

What it Takes to be a Judge

May 16, 2018 § 2 Comments

In my 45 years in the legal profession, I have never seen so many contested judge races. There are eighteen chancellors retiring out of 52 total; that means we are losing 37% of our chancellors to retirement, among them some of the most experienced and wisest.

There are vacant chancery judge posts scattered around the state, and lawyers are vying to fill them. If you’re wanting to become a chancellor, you might want to give some thought not only to what are the duties of the job, but also what are some of the nuances.

Here are some of my personal, random thoughts on the role of a chancery court judge, first posted in May, 2015:

  • The judge’s first duty is to the law. The judge has to be blind to who the parties are, and to who represents them, and let the facts lead him to a decision consistent with the applicable law. That sounds obvious, but it can be difficult to do.
  • The judge has to be dispassionate, but understanding of the foibles of human nature. A wrathful judge who hurls moralistic thunderbolts at the parties is, in my opinion, an ineffective judge. It’s better to craft an effective solution to a problem than to dispense punishment with judgmental platitudes. People come to court hoping for a pragmatic, wise solution, not another layer of problems laid on by the court.
  • What lawyers and the public want most is a judge who is fair and follows the law. Fail on either count, and you fail as a judge. A chancellor can never pick a side or a conclusion and reason back through the facts and law to get to that preconceived notion. The facts and law of the case dictate a ruling, not vice versa.
  • It takes a sure, confident, competent command of the rules of evidence to be a judge. If you have tried enough cases, you know what I mean. In fact, if you have little or no trial experience, I really don’t see how you could pull off being a chancellor. Lack of evidentiary skills will show in the work product. A judge who is usually wrong in evidentiary rulings or who waffles on every ruling will lose respect of the lawyers, and probably develop a history of reversals.
  • Speaking of reversals, two things apply. One is that a consistent history of reversals is a symptom of not following the law and/or not paying attention to the facts. Two is that the chancellor must rule based on what the facts and law dictate, and never with a concern to avoid reversal.
  • Those two may sound inconsistent, but the common thread is to follow the law and to apply it appropriately to the facts in evidence.
  • The judge must always be vigilant to see that justice is done. That may require a sua sponte appointment of a GAL, or inquiring behind a PSA, or scrutinizing actions of executors, guardians, conservators, and lawyers.
  • The judge must make sure that probate matters are being handled diligently, and free of any misconduct.
  • The chancellor must not let lawyers, particularly old lions, push him or her around. The judge controls the conduct of the case, and absolutely controls the courtroom. That does not mean that the judge is a tyrant, but firm, assertive behavior is required, and when the lawyers get accustomed to it, respect ensues.
  • Ethics are critically important. Even the appearance of impropriety is forbidden. It requires a thorough knowledge and observance of the Canons of Judicial Conduct to be a successful judge.
  • One of the side-effects of ethical behavior is isolation. The old camraderie with lawyers comes to an end.
  • A crucial thing to remember is that demeanor is vitally important. A judge should be rational, wise, kind, understanding, respectful, and even-handed. A judge should try never to be impatient, rude, sarcastic, or erratic. Lawyers who appear before you are still your colleagues who deserve your respect. The lawyer you mistreat and humiliate in the courtroom may likely be your next opponent.
  • Another reason that demeanor is important is that people in the courtroom are observing you closely. There is not a judge’s frown, grimace, smile, nod, sigh, or rolling of the eyes that someone does not note.
  • One of the hardest things to do consistently is to be patient. That is not easy when a lawyer is stumbling and fumbling through some routine matter, or must be shown the proper way to handle estate matters time and again.
  • Dishonesty can never be tolerated, and must be dealt with swiftly and decisively.

Other judges may have a different take, and I welcome their input.

Contested Appellate Races

May 15, 2018 § 1 Comment

There are three contested appellate judiciary races, all for seats on the Court of Appeals.

In District 2. (Tunica, Panola, Quitman, Coahoma, Bolivar, Sunflower, Leflore, Carroll, Humphreys, Washington, Sharkey, Issaquena, Holmes, Yazoo, Warren, Claiborne, Jefferson, and parts of Tallahatchie, Panola, Grenada, Montgomery, Attala, Leake, Madison, and Hinds). Place 1 (being vacated by the retirement of Presiding Judge Tyree Irving) Eric Charles Hawkins, Ceola James, and Deborah McDonald.

In District 4. Copiah, Simpson, Adams, Wilkinson, Franklin, Amite, Lincoln, Pike, Walthall, Lawrence, Jefferson Davis, Marion, Covington, and parts of Jones and Hinds. Place 2 (being vacated by retirement of Chief Judge Joe Lee) Byron Carter, Brad Clanton, Laura McKinley Glaze, David McCarty, and Jeff Weill, Sr.

In District 5. Wayne, Lamar, Forrest, Perry, Greene, Pearl River, Stone, George, Hancock, Harrison, and Jackson. Place 1 (being vacated by the retirement of Judge Eugene L. Fair, Jr.) Anthony N. Lawrence, III and Michael W. McPhail.

Contested Chancery Races

May 14, 2018 § 6 Comments

The qualifying deadline for chancery judge races was this past Friday. Here are the races, including any unopposed for replacement of a retiring chancellor:

District One (Alcorn, Itawamba, Lee, Monroe, Pontotoc, Prentiss, Tishomingo, and Union). Place 1 (being vacated by retirement of Chancellor John A. Hatcher, Jr.) Nathaniel Clark, Lisa Ann Koon, William Smith, Brad Tennison, and Daniel K. Tucker.

District Two (Jasper, Newton, Scott) (being vacated by retirement of Chancellor H. David Clark, II) Robert M. Logan, Jr. is unopposed.

District Five (Hinds).

Sub 5-2 (being vacated by retirement of Chancellor Patricia D. Wise) Reginald Harrion and Crystal Wise Martin.

Sub 5-4 (being vacated by retirement of Chancellor William H. Singletary) Monique Brown-Barrett, Ottawa E. Carter, Tiffany Grove, and Steven P. Nixon.

District Six (Attala, Carroll, Choctaw, Kemper, Neshoba, Winston) Place 2 (being vacated by retirement of Chancellor Edward C. Fenwick) Rosalind H. Jordan and Kiley Kirk.

District Seven (Bolivar, Coahoma, Leflore, Quitman, Tallahatchie, Tunica) Sub 7-2 (being vacated by retirement of Chancellor Jon Barnwell) Katherine Tackett Mills, Willie J. Perkins, Sr., and Richard W. Ryals.

District Eight (Hancock, Harrison, Stone) Place 3 Incumbent Chancellor Sandy Steckler is facing Diane Herman Ellis and Margaret Alfonso.

District Nine (Humphreys, Issaquena, Sharkey, Sunflower, Warren, Washington)

Sub 9-1 (being vacated by retirement of Chancellor Marie Wilson) Bennie L. Richard is unopposed.

Sub 9-2 Incumbent Chancellor Jane R. Weathersby is opposed by Debra M. Giles.

District Ten (Forrest, Lamar, Marion, Pearl River, Perry)

Place 3 (being vacated by retirement of Chancellor Johnny L. Williams) Bob Marshall and Sheila H. Smallwood.

Place 4 (being vacated by retirement of Chancellor M. Ronald Doleac) Stacy S. Barber, Christopher M. Howdeshell, Vanessa Jones, Harry R. Lane, Chad Smith, and Joseph L. Turney.

District Twelve (Lauderdale, Clarke) Place 1 (being vacated by retirement of Chancellor Jerry G. Mason) Charles E. Smith and Frances S. Stephenson.

District Thirteen (Covington, Jefferson Davis, Lawrence, Simpson, Smith) Place 1. Incumbent Chancellor David Shoemake is facing John Allen Bufington.

District Fourteen (Chickasaw, Clay, Lowndes, Noxubee, Oktibbeha, Webster)

Place 1 (being vacated by retirement of Chancellor Kenneth M. Burns) Elizabeth Fox Ausbern, Gene Barton, R. Todd Bennett, Rodney Faver, and Lee Ann Turner.

Place 2 (being vacated by retirement of Chancellor H. James Davidson) Gary S. Goodwin, Carrie A. Jourdan, and Joseph N. “Joe” Studdard.

Place 3 (being vacated by retirement of Chancellor Dorothy W. Colom) Paula Drungole-Ellis and Roy A. Perkins.

District Fifteen (Copiah, Lincoln) (being vacated by retirement of Chancellor Edward E. Patten) Renee H. Berry and Joseph Durr.

District Sixteen (George, Greene, Jackson)

Place 2 (being vacated  by retirement of Chancellor Jaye A. Bradley) Robert “Bob” Briggs, Tanya Hasbrouck, Gary L. Roberts, and Ashlee C. Trahern.

Place 3 (being vacated by retirement of Chancellor Michael L. Fondren) David C. Frazier, Mark A. Maples, and Stacie E. Zorn.

District Eighteen (Benton, Calhoun, Lafayette, Marshall, Tippah) Place 1 (being vacated by retirement of Chancellor V. Glenn Alderson) Carnelia Fondren, Sarah J. Liddy, and Lawrence L. Little.

District Twenty ( Rankin) Place 2 (being vacated by retirement of Chancellor John S. Grant) Tameika C. Bennett, Mel Coxwell, and Troy F. Odom.

Five Came Back Alive

April 13, 2018 § 2 Comments

In April, 2007, five newly-minted Mississippi jurists descended on the unsuspecting National Judicial College (NJC) in Reno, NV, for the General Jurisdiction Course required by Mississippi law. They returned home after two weeks, and NJC has never been the same.

Front row, L to R: Chancellor Edward Fenwick (6th), Chancellor Neil Harris (16th) Back row, L to R: County Court Judge Allen Couch (DeSoto); County Court Judge Derrick Parker (Yazoo); Chancellor Larry Primeaux (12th)

 

 

 

Off to the Races!

January 3, 2018 § 1 Comment

The qualifying period for judicial elections is now open, and will be until the first Tuesday in May, 2018. General election is in November, 2018.

I am hearing that there will be a significant number of positions that will come open by retirement or resignation. In my local courts, for instance, one chancery position will be open due to Judge Mason’s retirement at the end of the year, as will one circuit position due to Judge Williamson’s retirement. Another circuit court slot is being held by an appointee who must stand for election, as is one county court position. Of course, all trial judges in office stand for election this year and may face opposition.

We are not unique over here in East Mississippi. I understand that there will be openings and contested elections across the state. In one district, the 14th, all three chancellors are stepping aside (unless there is a change of heart).

There is a saying: “May you live in interesting times.” It’s a pleasant-sounding but ironic statement actually intended to be a curse, the subtlety being that interesting times are often dangerous, fraught with uncertainty, and full of often unpleasant surprises.

2018 will be an interesting time for Mississippi’s judiciary.

Musical Appellate Chairs

October 9, 2017 § Leave a comment

Catching up on the MSSC and COA news …

  • Justice Jess Dickinson left the MSSC September 15, 2017, to take over the Department of Child Protective Services. Dickinson served on the high court for nearly 14 years.
  • Judge David Ishee of the COA became Justice David Ishee of the MSSC on September 18, 2017, replacing Dickinson.
  • Governor Bryant tapped Senator Sean Tindell of Gulfport to take Ishee’s place on the COA, effective November 2, 2017. Tindell was an assistant district attorney for the Second Circuit Court District from 2002 to 2007, and has been in private practice since then. He was elected to the legislature in 2012, and served as Chairman of the Senate Judiciary A Committee.

In other news, former COA Judge Larry Roberts was appointed to serve temporarily as Circuit Judge in the Tenth District, taking the place of Judge Justin Cobb, who died September 9, 2017. Roberts is expected to serve until Governor Bryant names a replacement.

I May Not Always be Right, but I’m Never Wrong

July 31, 2017 § 3 Comments

That title up there is a quote from Samuel Goldwyn, he of Hollywood studio fame.

A lawyer recently introduced himself to me and, after telling me that he read this blog every day, said to the effect that he thought I was not always right, but he enjoyed reading it.

Well, I totally agree with him. You see, what you have here is my unvarnished opinion on whatever I choose to write about. My opinions may not always be right, but they might send you off on your own quest for something more solid.

As for what I do in court, the appellate courts may not agree with my opinion (if they care), other chancellors may not agree, and even lawyers may not agree. But in my court I’m never wrong until the COA or MSSC says I’m wrong, or until I change my mind. And I think my opinions, as do yours, and those of other lawyers and judges, have some value in themselves.

Seriously, you should regard this blog as a starting point. As one reader said, he searches here first on chancery issues and then uses what he finds to search on Westlaw. That’s in keeping with what I have said here many times: this is a starting point. Where you go from here with further research and analysis may take you in a different direction.

I am never offended when someone challenges my conclusions and judgments. That is what the law is all about. That is how the law grows and develops. That is what lawyers and judges do. Out of the controversy we hope that truth will emerge, and I think in most cases that is what happens.

What, Me Jury?

June 12, 2017 § 1 Comment

We all know that the chancellor is required to impanel a jury when requested to do so in a will contest, and that the jury’s verdict in such a case is binding unless the court directs a verdict otherwise or grants a new trial. At one time the same was true in paternity suits, but that was changed.

Not long ago a lawyer jokingly told me that he was going to request a jury trial in a divorce case. That got us wondering whether the old “advisory jury” that predated the MRCP was still available in cases other than will contests.

Well, actually, it is. MCA § 11-5-3 says that “The chancery court, in a controversy pending before it, and necessary and proper to be tried by a jury, shall cause the issue to be thus tried and made up in writing.” In modern parlance, that translates into “the chancery court may impanel a jury in a case pending before it.” The cases have broadly interpreted that “necessary and proper to be tried to a jury” language to extend to a wrongful death action in chancery via pendant jurisdiction, an action for accounting by a bankruptcy trustee, partition, and “conflicting claims to realty.”

The catch is that the chancellor is not bound by the jury’s verdict, and the verdict is purely advisory. As Griffith explained, “Because … (1) of the delay, (2) of the additional public expense, and (3) because the verdict of a jury in chancery is purely advisory and the chancellor may disregard it, such a submission in an equity case is seldom allowed or desired.” Griffith, Mississippi Chancery Practice, 2d Ed., 1950, § 597. Griffith goes on to point out that, if the chancellor accepts the verdict and incorporates it into a decree, on review the decree is regarded by the appellate court as if it were the findings of the chancellor, just as if there had been no jury.

An interesting wrinkle is MCA § 11-5-5, which states that, if the request for a jury trial is granted and afterward there is a change of venue, then the receiving court is required to impanel a jury to try the case.

Now, I am not advocating for or encouraging anyone to make routine demands for jury trials in chancery, particularly since they are advisory only. I just thought that all the law nerds out there would enjoy this tidbit of really trivial trivia.

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