The Better Chancery Practice Blog

Tom Freeland’s NMissCommentor blog yesterday had a post entitled Judge Primeaux and the Hydra, which referenced my THE BEST DEFENSE IS A BOILERPLATE post immediately below. It prompted a flurry of comments about pleading affirmative defenses.  The comments are worth reading, but the graphic alone is worth following the link.

Looking at the comments on NMC, the humor fault line appears to run a jagged course with the circuit and federal practitioners on the “not funny” or “I don’t get it” side, and the lawyers with chancery experience on the other, humorous, side.  Those with chancery experience recognize that most of those defenses could never have any applicability in a divorce case, no matter what, and raising them is as ludicrous as a defendant raising recrimination or condonation as a defense to an automobile accident complaint, or unclean hands in a slip and fall case.  [A side question … if you did raise those classic chancery defenses in a circuit court case, reckon the lawyer on the other side would file for Rule 11 sanctions? My money says he/she would.]

I recognize that we in chancery inhabit a strange and alien world for those who seldom venture here.  We deal with matters where the shades of gray have their own shades of gray, and in the absence of juries that are always in danger of being infected by legal poisons, we usually take a somewhat more relaxed approach.  That ambiguity unsettles some, I know.  [I was at a rules committee meeting last week discussing some chancery matters with another member and I heard a lawyer next to me say to another, “I’m glad I don’t practice in chancery court.”]  In circuit court the rules are the rules. Period. In chancery, the rules are the rules until they run up against the best interest of a child or ward.  And without juries the rules of evidence can sometimes be like the speed limit in Italy — merely a suggestion.

As for the absurd divorce defenses, we chancery denizens here on the eastern edge of Mississippi civilization have had a good laugh about them over the past few months, and the perpetrators have good-naturedly endured the ribbing about them.  No pleadings were ever in danger of being dismissed. I never really put anyone to a hearing for those ridiculous pleadings.

Tame the hydra and she will be your friend.

Chief Justice Waller has appointed Judge L. Joseph Lee as Chief Judge of the COA.

New Presiding Judges are Judge Tyree Irving and Judge Kenny Griffis.

For: 58

Against: 59

As expected, Governor Barbour appointed Judge Leslie King of the Court of Appeals to replace Presiding Justice James Graves, who has left the Mississippi Supreme Court to serve on the US Fifth Circuit Court of Appeals.

The press release from Chief Justice Waller:

February 23, 2011

Mississippi Supreme Court Chief Justice Bill Waller Jr. welcomed Justice Leslie D. King to the state’s highest court and thanked Gov. Haley Barbour for his appointment.

Chief Justice Waller said, “Judge King has provided strong and effective leadership of the Court of Appeals for nearly seven years. The Court of Appeals reviews hundreds of legal decisions each year, giving prompt and thorough attention to each case. It is essential that matters affecting people’s lives and liberty be addressed quickly, yet thoroughly. Judge King has guided the Court of Appeals in fulfilling its mission.”

“I welcome Justice King to the Supreme Court. His work ethic and extensive knowledge of the law will be a tremendous asset to the state’s highest court,” Chief Justice Waller said.

Justice King will fill the position vacated by Presiding Justice James E. Graves Jr.,who was appointed to the 5th U.S. Circuit Court of Appeals.

Gov. Barbour will appoint a judge to the vacancy on the Mississippi Court of Appeals. Justice Jess H. Dickinson of Gulfport, third in seniority on the Supreme Court, has become a presiding justice of the Supreme Court.

Mississippi has a two-tier appellate court system. The Mississippi Supreme Court is the court of last resort among state courts. The Mississippi Court of Appeals, an intermediate appellate court, hears cases assigned by the Supreme Court. The Supreme Court has discretion over whether to review decisions of the Court of Appeals. If the Supreme Court declines review, the Court of Appeals decision stands.

The judicial pay raise bill was called for a third time today to keep it alive until the ultimate deadline around mid-March.  This is a tactic commonly used when the sense is that there are not enough votes to pass.  It gives more time to marshal votes.

My sources suggest that there was plenty of misinformation floated today. There were astronomical figures circulated about how much the bill will cost the counties due to county court, although only 5 counties would be affected.  DHS weighed in against it due to the increase in filing fees, despite the fact that the chancellors can and do assess costs against the defaulting child support payors.

I hope this turns out all right, but I’m not optimistic.  I look at judges like Mason and Bailey who have served the state faithfully and have done a phenomenal job with only a rare reward of a pay increase, and I wonder what the message is that our legislators are trying to send.  The judge is nearly always the lowest paid lawyer in the room, yet they manage to uphold the dignity and authority of the State of Mississippi day in and day out.

I sincerely believe that if the members of the bar will get behind this and push their legislators, it will pass.

One last request:  Please talk to your legislator.  We need the best government we can afford, not the cheapest we can get by with.  I won’t bother you with this any more.

The judicial pay raise bill comes up for a vote before the full House today at 2:00 p.m.  If you support the bill, and I hope you do, it’s critical that you contact your legislators and tell them how important it is to you for them to vote for it.

As lawyers, you can appreciate the importance of an independent judiciary.  Adequate pay is an important component of independence.  Trial judges in Mississippi have not had a pay raise in seven years, and our pay is the lowest in the United States.  In that seven year period, other state employees have had significant pay increases, some of which have been quite large.  The judges have been told repeatedly to wait.  When we had the money to fund judicial raises, the “time is not right” for one reason or another.  Now that we do not have the money and we are seeking to fund the raise with an increase in our court fees (which will still be the lowest in the southeast after the increase), there are still objections:

• Some argue that the bill does not fund itself.  Justice Waller insists that the numbers do work.  The prosecutors hitched themselves to our bill, and those numbers are being crunched, but the hope is that it will work.  If the bill will not pay for itself, Governor Barbour will not sign it. 
• I am hearing that the board of supervisors association is working against the bill on the basis that it is an unfunded mandate for the five counties whose county court judges are tied to the trial judges salaries.  This is an interesting argument since the supervisors made no such objection to the dramatic increases in justice court judge and county prosecutor pay increases.  I understand from one source that there were brochures being circulated within an hour or so of the bill coming out of Judicial “A” on this issue.  
• DHS has pointed out that the bill will impose additional court costs on its child support filings. 
• Members of the conservative caucus are against any increase of anything.  If your legislators were among those who voted against any funding of the judiciary at all, it would help if you would give them a call and explain why the judicial branch not only needs to be funded, but why the trial judges need pay increases. 

I’ve spelled out these objections so that you can be prepared to meet them when you talk with legislators.  It would also help to arm yourself with the facts from Justice Waller’s message below.

The entire judicial branch budget is not even one percent of the entire state budget.  We say that we have three equal branches of government that balance each other, but our budget does not bear that out. 

This issue is important to your trial judges.  If you feel the same as a member of the bar, I ask you please to exercise your influence with your legislators.  A simple call or email will do the job.  Thanks.

Judiciary A Committee of the House of Representatives will take up the judicial pay raise bill today, and it is expected that the bill will be voted out.  The full house will get the bill either today or tomorrow.  A 3/5 vote is required, since it increases fees.

Please contact your representative and urge support of this measure.  Justice Waller’s presentation on the merits is below.