Report on the Contest
November 8, 2017 § 14 Comments
Some weeks ago I enlisted your participation in The Expert Institute’s Best Legal Blog contest.
In doing so I expected a few hundred favorable votes, taking into account that I have a few more than 860 followers. Imagine my surprise, then when it was called to my attention that the blog finished first in its category on the closing day, November 3, with 2187 votes, besting the Lawyers Rock blog by some 83 votes.
In fact, TBCPB finished second overall among all blogs in every category, second only to the Workplace, Data Management & Security Report, which received 2371 votes. You can see the vote totals at this link.
Thanks to each and every one who voted, and thanks to all of you who read this. I hope you continue to benefit from it. By the way, last year your votes added this blog to the ABA’s Best Legal Blogs list. So we are on a roll.
The Expert Institute says it is tallying votes and will notify the winners. I presume they are examining hanging chads and will make a definitive ruling soon.
In the meantime, I appreciate the vote of confidence. It helps keep me motivated.
Should Mississippi Have a Class-Action Rule? Your Comments are Invited
November 7, 2017 § 5 Comments
The MSSC has tasked the Supreme Court Advisory Committee on Civil Rules to study whether Mississippi should adopt a procedural rule allowing class actions. The committee is expected to recommend whether or not to do so, and, if the answer is positive, to propose how such a rule would operate.
The impetus for the referral comes from a motion filed with the court by Attorney Richard T, “Flip” Phillips to adopt Rule 23 of the Federal Rules of Civil Procedure.
To refresh your recollection, when the MRCP was adopted in 1982, Rule 23 was omitted. Up until then, equitable principles allowed consolidation of actions into something resembling class actions in chancery. The MRCP put an end to that, and some used Mississippi’s liberal joinder laws to fashion mass litigation that proved to be nightmarish in implementation. The MSSC and venue legislation put the kibosh on that, and so we are left with no tools for anything resembling class actions.
Both sides on the issue point out that Mississippi is the only state that does not have any form of state-court class action. Virginia allows class action in only extremely limited circumstances. All other states have rules allowing class actions.
The committee is gathering information and hopes to be in a position to make a recommendation by the spring of next year.
What do you think? Should Mississippi have a rule allowing class actions? Your comments are invited and will be shared with the advisory committee.
The Right to Confrontation
November 6, 2017 § Leave a comment
I posted here previously about the case of Miller v. Smith, in which the COA had ruled that there was no error when the chancellor excluded the parents from the courtroom during a child’s testimony in a child-custody case. Here is a link to my post.
The MSSC reversed the COA in the latest version of Miller v. Smith, decided October 26, 2017. Here is what Chief Justice Waller wrote for the court on the point:
¶19. The issue regarding Miller’s removal from the courtroom during the testimony of Kristen had relevance only while an issue existed concerning the custody of Morgan. A subsequent custody ruling of the trial court has granted custody of Morgan to Miller. We address the issue, though, because of conflicts in our caselaw as discussed below. See Alford v. Miss. Div. of Medicaid, 30 So. 3d 1212, 1214 (¶ 8) (Miss. 2010) (issue not moot if question concerns a matter “detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.”) (citation omitted).
The Confrontation Clause of the Sixth Amendment
¶20. Miller argues the Confrontation Clause of the Sixth Amendment applies in this case, even though it is a civil case. By its own language, the Confrontation Clause extends only to criminal cases. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with witnesses against him . . . .”) (emphasis added); Hannah v. Larche, 363 U.S. 420, 440, 80 S. Ct. 1502, 1513, 4 L. Ed. 2d 1307 n.16 (1960) (“[The Sixth] Amendment is specifically limited to ‘criminal prosecutions’ . . . .”). As the Court of Appeals correctly observed, “The Confrontation Clause only applies to criminal cases. . . . So [Miller’s] first argument fails.” Miller [v. Smith], 2016 WL 6876509, at *3 (¶ 17) [(Miss. Ct. App. Nov. 22, 2016)].
¶21. According to Miller, the Court of Appeals’ decision is contrary to this Court’s precedent. To support his argument, Miller relies on In Interest of C.B., where we held “[t]his is not a criminal case, but we are of the opinion that the right of confrontation should be accorded to an accused parent in” youth-court cases. In Interest of C.B., 574 So. 2d 1369, 1374 (Miss. 1990). [Fn omitted] In a recent concurrence, though, Justice Beam wrote that our statement in In Interest of C.B. “was nonauthoritative dicta.” In re J.T., 188 So. 3d 1192, 1205 (¶ 71) (Miss. 2016) (Beam, J., concurring in part and result).
¶22. This Court cannot ignore the plain language of the Sixth Amendment, which limits its own application to “criminal prosecutions.” To the extent we held in the case of In Interest of C.B., 574 So. 2d at 1374, that the Sixth Amendment applies in civil proceedings, today we overrule it.
Article 3, Section 25 of the Mississippi Constitution
¶23. Miller argues his removal from the courtroom violated Article 3, Section 25 of the Mississippi Constitution. “No person shall be debarred from prosecuting or defending any civil cause for or against him or herself . . . by him or herself, or counsel, or both.” Miss. Const., art. 3, § 25. The Court of Appeals rejected Miller’s argument, finding no violation “[b]ecause [Miller’s] counsel was present during Kristen’s testimony . . . .” Miller, 2016 WL 6876509, at *4. However, the provision prohibits debarment of the individual “by him or herself.” Miss. Const. art. 3, § 25. The presence of Miller’s counsel did not cure the error that Miller, individually, was removed from the courtroom. As a result, a violation of Article 3, Section 25 occurred.
Harmless-Error Analysis
¶24. While the removal of Miller was error, the issue may be reviewed under harmless error analysis. Smith v. State, 986 So. 2d 290, 300 (¶ 30) (Miss. 2008); see also United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007).
¶25. First and foremost, while Miller was absent, his attorney was present during the entire questioning. And Miller fails to explain how the examination would have changed had he been present alongside his attorney. See Jones v. State, 912 So. 2d 973, 977 (¶ 16) (Miss. 2005) (“Assertions of error without prejudice do not trigger reversal.”).
¶26. While a Sixth Amendment case, the decision in Rollins v. State is instructive on the issue of removing a defendant from the courtroom. Rollins v. State, 970 So. 2d 716 (Miss. 2007). In Rollins, the grand jury returned a multicount indictment charging the defendant with crimes related to sexual battery of children. Id. at 717 (¶ 2). The trial court allowed the children to testify through closed-circuit television. Id. at 717 (¶ 3). The defendant was removed from the courtroom to watch the television screen alone. Id. at 719 (¶ 5). However, technical difficulties arose, and the defendant was unable to view the witnesses on the screen. Id. at 721 (¶ 11). Because of the inability to see the witnesses and view their demeanor, the defendant raised confrontation issues, claiming a violation of his right required reversal. Id. at 722 (¶ 13). However, this Court held, “in order to receive a new trial, [the defendant] must show the denial of his right to view the demeanor of the minor witnesses prejudiced him.” Id. The Court continued: “[S]ince [the defendant] does not argue that he was prejudiced or demonstrate how he was prejudiced, this argument is without merit.” Id.
¶27. This Court finds that the same reasoning in the Sixth Amendment cases of Jones and Rollins should apply to Miller’s objections under Article 3, Section 25 of the Mississippi Constitution. Smith [sic] must show how he was prejudiced by the procedure used by the trial court. See Goins v. State, 155 Miss. 662, 124 So. 785, 786 (1929) (holding a constitutional error “did not require a reversal, because it did not result in any injury to the defendant . . . .”).
¶28. The trial court should have provided a mechanism, such as closed-circuit TV, for Miller to observe witness testimony when he was removed from the courtroom. However, as the U.S. Supreme Court has held, “most constitutional errors can be harmless.” Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263, 113 L. Ed. 2d 302
(1991)). We hold that, due to the lack of prejudice to Miller, Miller’s erroneous removal was harmless.
So, Article 3, Section 25 of the Mississippi Constitution requires that the parents, in cases such as this, be provided with means such as closed-circuit tv to observe the testimony of the child(ren) if the court decides that it is not in the child’s best interest for the parents to be present during the testimony. I imagine the 21st century equivalents FaceTime and Skype would suffice.
If your client is excluded over your objection, be prepared to explain how it prejudiced your client.
“Quote Unquote”
November 3, 2017 § Leave a comment
“Love is the motive, but justice is the instrument.” — Reinhold Niebuhr
“What doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?” — Micah 6:8
“Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.” — Frederick Douglass
November 1, 2017 § Leave a comment
Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”
The contest is underway and ends on November 3, 2017, at midnight. Happy voting!
An Extremely Useful UCCJEA Tool
October 31, 2017 § Leave a comment
Figuring out which state has jurisdiction in a UCCJEA case can be baffelizing, confuserating, miserizing, and flusterating.
To the rescue comes Attorney David A. Blumberg, who has devised a set of brilliant flow-charts that help analyze the law and apply it to your case. You can access them at this link. The charts include an intro that will send you to the chart applicable to your case. Charts include: initial orders; modification; enforcement; and decline jurisdiction. You can print the charts on a color printer.
I have played with them, and each appears quite accurate under Mississippi’s UCCJEA. Before you invest too much in them, however, I urge you to vet them for yourself.
Mr. Blumberg is a Wisconsin attorney who specializes in child custody jurisdiction and enforcement cases. His website includes resource material about the UCCJEA that you might find useful.
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Thanks to Attorney William Wright, who introduced this to the chancery judges at our Fall Conference
The Ups and Downs of Modification
October 30, 2017 § 2 Comments
Modification of child support can get confusing. In one case, you ask for upward modification retroactive to the date of filing and you get modification beginning at the date of judgment. In another the judge grants upward retroactivity to the date of the parent’s increase in income. And in yet another the court does order upward retroactivity to the date of filing. What is the rule?
A good starting point is MCA 43-19-34(4), which reads:
Any order for the support of minor children, whether entered through the judicial system or through an expedited process, shall not be subject to a downward retroactive modification. An upward retroactive modification may be ordered back to the date of the event justifying the upward modification.
Downward: never retroactive. This comports with long-standing Mississippi law that each child support payment vests when and as it comes due, and it can not be forgiven. In Howard v. Howard, 968 So.2d 961, 977 (Miss. App. 2007), the court said:
¶ 41. Child support payments vest in the child as they become due. Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992). Each payment that becomes due and is unpaid becomes a judgment against the supporting parent. Id. A court cannot modify or forgive vested child support obligations. Id. Accordingly, when a payor moves for downward modification of child support, the payments due continue to vest during the pendency of the motion. Cumberland v. Cumberland, 564 So.2d 839, 847 (Miss.1990). Any modification granted will take effect on the date of the judgment granting the modification. Id. However, when an appellate court reverses and remands a child support modification appeal to the chancery court for redetermination of the issue, the effective date of any downward modification granted is the date of the judgment from which the appeal was taken. Setser v. Piazza, 644 So.2d 1211, 1216 (Miss.1994) (reversing and remanding the chancellor’s denial of abatement of child support for further consideration and holding that the effective date of any downward modification granted would be the date of the order that erroneously denied modification.); Cook v. Whiddon, 866 So.2d 494, 500(¶ 22) (Miss.Ct.App.2004) (stating that the chancellor could make any order entered on remand that reduced child support retroactive to the effective date of the judgment cleansing the payor’s hands and reviving the modification issue); Lane, 850 So.2d at 127(¶ 14) (noting that the Court was not at liberty to modify child support retroactively, and stating that on remand, if modification was granted, it would be retroactive only to the date of the judgment from which the appeal was taken).
Howard pre-dates 43-19-34(4).
What about emancipation? It sometimes happens that a modification action has to be filed to terminate a withholding order or for some other reason. Do those support payments that come due after emancipation vest so that they can not be undone, or does the liability continue to accrue while the action is pending? “Child support payments vest when due, and retroactive termination is an impermissible form of ‘downward retroactive modification….’ See Howard v. Howard, 968 So.2d 961, 977 (Miss.Ct.App.2007).” AML v. JWL, 98 So.3d 1001, 1016-17 (Miss. 2012)
In my opinion, if the emancipation is automatic by statute, such as attainment of age 21 or marriage or conviction of a felony, then the obligation terminated at that event, and no further obligation existed or vested, so it is not truly a retroactive modification but rather a judicial recognition of the termination as of the date of the event. MCA 93-11-65(9) is consistent with this reasoning.
If, on the other hand, the emancipation turns on a finding of fact, such as whether the child established independent living, then the obligation continues until the court’s order is entered.
Upward: In the court’s discretion. Id. at 1017 (¶43). The modification may be made retroactive to the event that triggered the modification action, such as a raise in pay. There are no cases of which I am aware interpreting this 2009 statute. My interpretation of the statute is that upward retroactivity may be to any point between the triggering event and the date of judgment. If you really want retroactivity, you should put on some persuasive proof about why it should be.
October 24, 2017 § Leave a comment
Some reader(s) apparently have had too much time on their hands and nominated this blog for the Expert Institute’s Best Legal Blog Contest. In honor of whoever did this, I’m passing on this link where you can vote in the “Niche and Specialty Blog category.”
The contest is underway and ends on November 3, 2017, at midnight. Happy voting!
