The Immune System
May 2, 2017 § Leave a comment
It’s not often that a judge is sued for some action he or she took in the course of performing official duties. But it does happen, and the most recent case was decided by the MSSC in Weill v. Bailey, on April 6, 2017. In that case, a circuit judge, Weill, was sued by a former employee, Bailey, over language the judge had included about her in a judgment, which language she claimed to be libelous. The special judge assigned to the case refused to grant Weill’s motion to dismiss, and he appealed. The MSSC reversed and remanded for a dismissal judgment.
Since Justice Coleman’s opinion sets out an exposition of the law on the point, I am posting it here because you might find it useful:
¶18. Mississippi has long recognized the doctrine of judicial immunity. Wheeler v. Stewart, 798 So. 2d 386, 392 (¶ 14) (Miss. 2001). The Court has declared that “public policy mandates that a judge should have the power to make decisions without having to worry about being held liable for his actions.” Id. (quoting Loyacono v. Ellis, 571 So. 2d 237, 238 (Miss. 1990)). Indeed, the Court “fully recognizes that the best interests of the people and public order require that judges be immune from civil liability.” Loyacono, 571 So. 2d at 238.
¶19. The Loyacono Court recognized that the United States Supreme Court addressed the doctrine of judicial immunity in Stump v. Sparkman, 435 U.S. 349 (1978). The Stump 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.” Stump, 435 U.S. at 355-56 (quoting Bradley v. Fisher, 80 U.S. 335, 351 (1871)).
¶20. In Loyacono, an attorney filed suit against a circuit court judge contending that, as a direct and proximate result of the willful, intentional, or negligent acts of the circuit court judge, he was falsely prosecuted, arrested, incarcerated, and denied due process. Loyacono, 571 So. 2d at 237. The trial court granted the circuit court judge’s motion to dismiss, finding that the doctrine of judicial immunity protected the circuit court judge even if he was motivated by malice. Id. The Court affirmed. Id. at 239.
¶21. The Loyacono Court acknowledged that, while the holding in DeWitt v. Thompson, 7 So. 2d 529, 532 (Miss. 1942) [Fn 3], seemed to leave open the door as to whether judicial immunity applies in the face of malice, “[p]ublic policy mandates that a judge should have the power to make decisions without having to worry about being held liable for his actions, and, thankfully, most judges do not exhibit the type of behavior we find in this instance.” Loyacono, 571 So. 2d at 238. Accordingly, the “Court fully recognizes that the best interests of the people and public order require that judges be immune from civil liability. There are other remedies [Fn 4] for the correction of such behavior.” Id.
[Fn 3]:
In DeWitt v. Thompson, 7 So. 2d 529, 532 (Miss. 1942), the Court stated:
In [Bradley] the [United States Supreme] Court went farther, and held that courts of general jurisdiction are not liable to civil actions for their judicial acts, when such acts are in excess of their jurisdiction, and are charged to have been done maliciously or corruptly. We do not go that far in this case, because, as stated, there was no showing of either corruption or excess of jurisdiction.
[Fn 4]:
“The primary remedy available to those who believe a judge has acted either contrary to or in excess of his/her authority is to file a complaint with the [Mississippi Judicial Performance] Commission.” Mississippi Comm’n of Judicial Performance v. Russell, 691 So. 2d 929, 947 (Miss. 1997).
¶22. The Loyacono Court stated: “There is a distinction between excess of jurisdiction and a complete absence of jurisdiction.” Id. “Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.” Bradley, 80 U.S. at 351-52. Thus, “[t]he key factor in determining whether judicial immunity exists is whether at the time the judge took the challenged action he had jurisdiction over the subject matter before him.” Wheeler, 798 So. 2d at 392 (¶ 15).
¶23. Bailey argues that Judge Weill is not afforded judicial immunity because his actions were taken in a complete absence of jurisdiction. Bailey contends that Judge Weill had no jurisdictional authority over her individually when he entered the February 2015 orders. However, the question is not whether Judge Weill had jurisdiction over Bailey, individually; the inquiry is “whether at the time the judge took the challenged action he had jurisdiction over the subject matter before him.” See id. (emphasis added).
¶24. The challenged act is the entry of the February 2015 orders disposing of Kelly’s motions to recuse and for clarification in multiple criminal cases. Judicial immunity exists in the present case because at the time Judge Weill entered the February 2015 orders, he had jurisdiction over the multiple criminal matters before him.
¶25. Bailey’s complaint and amended complaint did not allege that Judge Weill lacked jurisdiction over the criminal matters in which he entered the February 2015 orders. Thus, there is no dispute that, at the time Judge Weill entered the February 2015 orders in his capacity as circuit court judge, he had jurisdiction over the criminal matters before him. Instead, Bailey argues that Judge Weill’s statement that she had been reprimanded forimproper ex parte communications in the February 2015 orders was neither necessary or relevant to the issue before Judge Weill. However, the Court has not recognized a relevance exception to the judicial immunity doctrine. “In 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.” Loyacono, 571 So. 2d at 238 (citing Stump, 435 U.S. at 356). It is of no consequence that the February 2015 orders disposing of a motion in criminal matters properly before him included a factual finding that mentioned Bailey.
¶26. Bailey also argues that Judge Weill lost his judicial immunity because his alleged defamation of her constituted a nonjudicial act made in the clear absence of all jurisdiction. However, the Loyacono Court rejected the argument that allegations of malice remove the protection of judicial immunity.
¶27. We hold that the trial court erred by failing to grant Judge Weill’s motion to dismiss Bailey’s complaint and amended complaint based on judicial immunity.
CONCLUSION
¶28. The Court has held that judges of courts of 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. Loyacono, 571 So. 2d at 238. Here, Judge Weill entered the February 2015 orders disposing of the public defender’s motions to recuse and for clarification in four criminal matters that were properly before him. Even though Bailey alleged that the language contained in the orders contained libelous language, Judge Weill is afforded judicial immunity from Bailey’s civil action because at the time he entered the February 2015 orders, he had jurisdiction over the subject matter before him. See id; Wheeler, 798 So. 2d at 392 (¶ 14). As a result, the Court reverses the trial court’s order and remands the case for further proceedings consistent with the Court’s opinion.
Justice King, joined by Justice Kitchens, specially concurred, agreeing with the result in this particular case but cautioning that in another fact situation the role of malice in the judge’s use of language needs to be addressed.
A Caveat About Joint Custody Arrangements
May 1, 2017 § Leave a comment
When Suresa and Derrium Todd got an irreconcilable-differences divorce, they agreed that they would share joint legal and physical custody. Only thing is, their agreement did not spell out a schedule for how that custody would be shared. Notwithstanding that omission, the chancellor who granted the divorce found the agreement “adequate and sufficient,” and granted the divorce.
Two years after the divorce they were back in court over Derrium’s allegations that Suresa was not properly caring for the child. His proof at trial, however, was that the child was happy and well-cared for. There was no proof of a material change and adverse effect; however, the proof was that the custody arrangement was unworkable absent a specific schedule. So the chancellor conducted an Albright analysis and awarded Derrium sole custody. Suresa appealed.
Now, you can probably guess that the COA reversed. They did, in Todd v. Todd, handed down April 18, 2017. Judge Irving’s opinion reiterated the familiar rule that there can be no modification absent a showing of material change and adverse effect.
What I found interesting was what the COA expects chancellors to do when confronted by a joint custody arrangement that has proven to be unworkable due to the lack of a schedule, or due to a change in the parties’ schedules, or maybe due to the fact that the child was an infant when the agreement was entered into but is now school age. Do we still require a material change coupled with an adverse effect, or do we apply a lesser standard such as we do in visitation cases? Whatever the standard, it is clear in these cases that something has to be done for the best interest of the child.
Judge Irving spoke to the issue:
¶11. One final matter bears discussion. If, on remand, the chancellor finds no merit to Derrium’s complaint or Suresa’s counterclaim [for modification of custody], Derrium and Suresa will still have joint physical custody of their child. It will be necessary to determine a custody schedule, as it was probably error to find that the parties’ agreement was “adequate and sufficient” without one. See Selman v. Selman, 722 So. 2d 547, 554 (¶33) (Miss. 1998) (holding that plain error resulted where a chancellor’s child-support award was ambiguous, and it was necessary to remand the issue for clarification “to prevent friction between the parties”). Derrium and Suresa could resolve the issue through an agreement that the chancellor finds “adequate and sufficient” before incorporating it into an amended divorce judgment. See Miss. Code Ann. § 93-5-2(2) (Rev. 2013). Alternatively, they could allow the chancellor to resolve the issue for them. See Miss. Code Ann. § 93-5-2(3) (Rev. 2013). Under either circumstance, a joint physical-custody schedule should provide each parent with “significant periods of physical custody . . . in such a way so as to assure [their] child of frequent and continuing contact with both parents.” See Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013). But that does not necessarily mean that each parent would have to get equal time with their daughter. See Collins v. Collins, 20 So. 3d 683, 692 (¶44) (Miss. Ct. App. 2008).
So, yes, the chancellor, short of modification of custody, may proceed to clarify the original custody arrangement so as to eliminate friction between the parties.
But note Judge Irving’s caution that “it was probably error to find that the parties’ agreement was ‘adequate and sufficient’” without a custody schedule. To that, I say Amen. But in saying that I am not being critical of the chancellor who granted the divorce. I have been in those shoes many times, with lawyers imploring me that “these are good people, judge; they will work it out.” Or, “Judge, we had a hard time reaching a final agreement, and there was a lot of give and take; we had to leave this the way it is or we would not have an agreement at all.”
Hindsight is always cataract-free and eagle-eyed. It always sees in sharp focus what a thoughtful person either (a) should have seen at the time, or (b) deluded himself or herself into thinking all would turn out peachy keen despite the flaws in the agreement.
When you bid your client farewell after the judgment is entered, that client believes that you covered all the bases and protected him or her from further litigation. If you kick the can down the road, it does not mean that the can has disappeared. It’s still there for someone to trip over later and get cut on the rough edges.
Reprise: Lawyers Who Can be Trusted … or not
April 25, 2017 § Leave a comment
Reprise replays posts from the past that you might find useful today …
The Two Types of Lawyers
July 31, 2014 § 4 Comments
There are as many ways to categorize lawyers as there are lawyers, I suppose.
Just off the top of my head, here are a few that come to mind, presented as dichotomies: professional and unprofessional; learned and ignorant; court room and office; courtly and obnoxious; prepared and unprepared; rich and poor; pit bull and diplomat; tenacious and doormat; zealous and lazy; melodramatic and understated; scholar and street smart; and so on.
Lawyers and non-lawyers alike can come up with an almost unlimited number of similar categories.
To a judge, though, there are really only two types of lawyers: those the judge can trust, and those the judge can not trust.
If you think about it, much of our legal system rests on the trustworthiness of a lawyer in his or her dealings with the court. The judge relies on the lawyer to be candid and truthful in pleadings, evidence, legal citations, and statements.
The trustworthy lawyer never knowingly makes a false representation to the court, and promptly notifies the judge when he or she discovers that something presented proves to be untrue. He or she is timely and accurate in probate and fiduciary matters, and stays in contact with the fiduciary. The trustworthy lawyer’s pleadings are in order and are accurate. When the trustworthy lawyer cites a case, it is on point. The trustworthy lawyer distinguishes unfavorable law, and acknowledges the weaknesses of his or her case, suggesting how the court can and should address them to the client’s advantage. The trustworthy lawyer is never caught in a lie because she or he never lies. If the trustworthy lawyer has overlooked a court appointment, he or she apologizes and acknowledges the mistake, rather than fabricating a half-baked, incredible excuse. The trustworthy lawyer is in control of his or her case, and never lets a client dictate strategy and tactics. He or she will withdraw from representing a client before allowing that client put him or her in a position of dishonesty, trickery, craftiness, or misrepresentation. A trustworthy lawyer’s word is his or her bond.
A lawyer who can not be trusted is one who has proven that his or her word is worthless. The untrustworthy lawyer tells the court things that prove to be untrue, and bends the truth to the client’s advantage. His or her pleadings are full of allegations that can not be supported by any facts. The untrustworthy lawyer tries to hide the truth from the court, citing only law that is favorable, suppressing what is unfavorable. When caught in a lie, he or she persists in falsehood and makes up flimsy explanations. He or she files incorrect, incomplete and false accountings in probate matters, and regularly loses contact with the fiduciary. The untrustworthy lawyer can not be relied on to be on time or prepared; the judge worries that the client is being prejudiced by poor representation. The untrustworthy lawyer does what the client wants her or him to do, even if it is underhanded and unethical.
There are lawyers who present probate matters to me whose pleadings and orders I can skim and sign off on, confident that all is in order and proper. There are other lawyers who have proven that I must read every word and carefully consider what has been presented before I sign.
I think most reasonable people would assume that a trustworthy lawyer’s client has a head start in every case, because her lawyer is not having to overcome the judge’s skepticism about her case. Vice versa for the lawyer who can not be trusted.
The lawyer’s reputation with the court is built over time with hundreds of tiny building blocks of trust. One lie can destroy it, but so can a pattern of inaccuracies and questionable acts.
When a lawyer presents case after case as emergencies demanding urgent attention, and those cases prove to be anything but, that lawyer’s trustworthiness takes a hit.
When a lawyer’s accountings in probate matters are full of inaccuracies and miscalculations, and loses track of the fiduciary, that lawyer’s trustworthiness takes a hit.
When a lawyer files motion after motion asking the court to address minutiae and praying for sanctions to rain down on the opposition, that lawyer’s trustworthiness takes a hit.
When a lawyer wastes the court’s and everyone else’s time with frivolous matters that have no chance of success, that lawyer’s trustworthiness takes a hit.
Your reputation for trustworthiness with the court is like a treasure of precious gold. If you spend it wisely and build on it, it will stand good for you the length of your career. If you squander it over time on trifles, or blow it all in one monumentally bad act, it is gone, and you may never get it back. It’s your choice to make.
Attorney’s Fees Sans McKee
April 18, 2017 § Leave a comment
It’s fundamental that the chancellor is required to consider the McKee factors in making an award of attorney’s fees.
But it’s not always fatal if the judge doesn’t. The latest incarnation of that principle is in the case of Baswell v. Baswell, handed down by the COA January 31, 2017. In that case, Bobby Baswell had been ordered to pay his ex, Elizabeth, attorney’s fees of $1,500, in the final divorce judgment. On appeal the COA affirmed. Judge Carlton wrote for the court:
¶21. Bobby also asserts that the chancellor erred by awarding Elizabeth attorney’s fees up to the amount of $1,500 because Elizabeth never submitted evidence of her attorney’s fees. With regard to attorney’s fees, this Court recently stated:
An award of attorney’s fees is appropriate in a divorce case where the requesting party establishes an inability to pay. However, if a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate. As the issue of whether to award attorney’s fees in a divorce case is a discretionary matter left to the chancellor, this Court is reluctant to disturb such a finding.
Williams v. Williams, 179 So. 3d 1242, 1254 (¶42) (Miss. Ct. App. 2015) (internal citations and quotation marks omitted). “Unless the chancellor is manifestly wrong, his decision regarding attorney[’s] fees will not be disturbed on appeal.” Gaiennie v. McMillin, 138 So. 3d 131, 137 (¶15) (Miss. 2014) (citation omitted).
¶22. “In order to determine the amount of attorney’s fees, a chancellor must look to the factors enumerated in McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982).” Branch v. Branch, 174 So. 3d 932, 945 (¶57) (Miss. Ct. App. 2015). In Branch, this Court recognized:
The court in McKee stated: We are also of the opinion the allowance of attorney’s fees should be only in such amount as will compensate for the services rendered. It must be fair and just to all concerned after it has been determined that the legal work being compensated was reasonably required and necessary. The specific factors include[:]
[T]he relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the case. Further, where the record shows an inability to pay and a disparity in the relative financial positions of the parties, there is no error in awarding attorney’s fees.
Branch, 174 So. 3d at 945-46 (¶58) (internal citations and quotation marks omitted).
¶23. In Branch, the chancellor found that the ex-wife lacked the ability to pay her attorney’s fees. Id. at 946 (¶59). This Court stated that, although the chancellor never “explicitly consider[ed] the individual McKee factors, the chancellor found the [ex-wife’s attorney’s] fees reasonable in accordance with McKee.” Id. Despite some omissions in the chancellor’s findings and the lack of a factor-by-factor analysis under McKee, we concluded that the chancellor accurately relied on the ex-wife’s financial position and correctly awarded attorney’s fees. Id. at (¶¶59, 61). We therefore found no manifest error in the chancellor’s decision to award reasonable attorney’s fees. Id. at (¶61).
¶24. In the present case, Elizabeth testified as to the severity of her overall financial situation. Like in Branch, the record here fails to reflect that the chancellor explicitly considered the McKee factors or conducted a factor-by-factor analysis under McKee. Instead, based on the evidence and testimony before him, the chancellor appears to have simply concluded that Elizabeth had proven her inability to pay her attorney’s fees. The chancellor stated in his order that Elizabeth had incurred attorney’s fees but that she had a “gross inability” to pay the fees. As a result, the chancellor ordered Bobby to pay Elizabeth’s reasonable attorney’s fees not to exceed $1,500 at an hourly rate of $175 an hour, plus actual, necessary, and reasonable expenses. The chancellor further stated that, “[I]f challenged in regard to the issue of attorney’s fees and expenses, [Elizabeth’s] attorney shall submit an itemized bill for same at the hourly rate he did charge, not to exceed that set by the [c]ourt . . . .” However, the record reflects no evidence that Bobby ever requested, or that Elizabeth’s attorney ever provided, an itemized bill for attorney’s fees.
¶25. Upon review, we find no abuse of discretion in the chancellor’s conclusion that Elizabeth lacked the ability to pay her attorney’s fees based on the evidence and testimony of her overall financial situation. We therefore find no manifest error in the chancellor’s decision to award Elizabeth reasonable attorney’s fees. Accordingly, this issue lacks merit.
If there’s one thing that is hard and fast … it’s that there is no hard and fast rule when it comes to award of attorney’s fees in a divorce and need to make a McKee record. You can never go wrong by addressing the McKee factors in your proof, and asking the court to make findings, either in the course of the trial or via R 59.
Here, there was a waiver issue that probably had some influence on the ultimate outcome, and the modest amount of the award likely influenced it as well.
Another One for the Graveyard
April 17, 2017 § Leave a comment
As I have said here before, R54(b) is the graveyard of appeals. Here is one of many posts about it.
The latest iteration is the COA’s decision in Jeffers v. Saget, decided March 21, 2017. In that case, a jury trial in a will contest ended in a mistrial. The chancellor nonetheless entered a “Final Judgment” denying Jeffers’ petition to recover some investment accounts, and Jeffers appealed.
Predictably, the COA pointed out that the chancellor’s ruling disposed of fewer than all of the issues in the case, since the validity of the will had still not been adjudicated. The chancellor had not certified the case per R54(b), and no petition for an interlocutory appeal was filed. Appeal Dismissed.
I get it that it’s better to appeal early and get dismissed than to be told you’re dismissed because you’re late. Yet, the boneyard is filling up.
Lying in Wait
April 13, 2017 § Leave a comment
You represent the estate. A creditor timely probates a substantial claim against the estate. You study the claim and realize that it is meritorious. So, should you just go ahead and pay it? After all, MCA 91-7-155 directs that executor to “speedily pay” the probated claims.
There is another option. Professor Weems describes it:
One might conclude that if a creditor validly probates his or her claim, the creditor would not have to do anything else to protect it, but this is not always the case. The administrator may, through deliberation or procrastination, fail to pay the claim. If the administrator does not pay it, the creditor may have to take judicial action to compel payment. Administrators may not be sued for 90 days after taking office [MCA 91-7-239], and there is a four-year statute of limitations with regard to the action against administrators to recover claims against their decedent [MCA 15-1-25]. Consequently, actions to compel payment of such claims must be brought within four years and 90 days of the qualification of the administrator, even though the claim may have been probated. [Rogers v. Rosenstock, 117 Miss. 144, 77 So. 958 (1918); Toler v. Wells, 158 Miss. 628, 130 So. 298, 300 (1930)].
Weems, Wills and Administration of Estates in Mississippi, 3d Ed., § 2.31.
What about MCA 91-7-153, which states that registration of a probated claim, ” … shall stop the running of the general statute of limitations as to such claim …” Doesn’t that insulate the creditor from operation of MCA 15-1-25? No, I don’t think so, because MCA 91-7-153 specifically refers to the “general statute of limitations,” which is MCA 15-1-49, as opposed to the more specific MCA 15-1-25.
An interesting side note arises from the Toler case. There, although the administrator acknowledged the debt and promised to pay it, he was not later precluded from asserting the four-year and 90-day statute of limitations.
So, if you represent a creditor with a probated claim, you would do well to set the matter for hearing at an early date some time after the administrator has been qualified for more than 90 days. Get an order of the court for the administrator to pay the claim and then you can rest easy. The estate can not be closed unless and until the claim is paid. Don’t rely on MCA 91-7-155; the duty imposed by the statute must be enforced by the creditor.
On the other hand, if you represent the estate, you just might, “through deliberation or procrastination,” find it best to lie in wait.
