Should State Judges be Appointed?
December 15, 2016 § 7 Comments
Phillip Thomas addresses the question of appointed vs. elected judges in a post on his Mississippi Litigation Review and Commentary blog earlier this month. The post was based on a Clarion-Ledger article.
One point of alarm to Mr. Thomas is a survey showing that 50% of judges believed contributions to judicial candidates do influence decisions. As for me, as a state trial judge, I have never been asked to participate in such a survey, or, at least, I have never responded to such a survey if the opportunity were actually presented. So let me say for myself that I do not believe that contributions influence trial court decisions, but I do believe that they certainly do give reasonable people reason to believe that they do. The statistics reported by the Clarion-Ledger bear that out.
One of the many flaws of an elected judiciary is that it forces judges and judicial candidates to have to raise money to run. There is no such thing as a successful election campaign without adequate funds to pay for signs, advertising, and all the other trappings necessary to get one’s name out to the electorate and to energize them to vote. With money comes at least the appearance of influence. Lawyers know and understand that no judicial candidate can solicit or accept contributions directly; that must be done through an independent committee, and the candidate is not supposed to be allowed access to the financial reports. I am confident that the public, however, does not understand this. Some other drawbacks:
- Judicial candidates should only be able to promise to be fair, to be dedicated, and to follow the law. Yet, we hear candidates promising to be tough on crime and criminals, or to be friends of law enforcement, when the job of a judge may demand setting a prisoner loose, or to rule against law enforcement officers. A judge really has no friend other than the law itself when called upon to rule.
- Voters in this part of the world can be swayed to vote against “liberal” judges, and to vote for “conservative” judges without really understanding what those terms imply in practice in our courts. Is a judge “liberal” because he sets aside a clearly erroneous guilty verdict? Or is he doing exactly what the law requires of him? And is she “conservative” because she denies custody to a drug-addicted mother? Or is she doing exactly what the law requires of her?
- PACS have introduced vicious attack ads into our judicial races. Lawyers view them critically and get the misleading and often false accusations. But voters pummeled with attack ad after attack ad often figure that where there’s smoke …
- Our judicial races have become non-partisan in name only. I leave it to you to consider the evidence and draw your own conclusions.
There are other flaws in the judicial election process that you can add for yourself.
So, is the solution to appoint state judges? At first blush, that would appear a viable solution. After all, it works arguably well at the federal level. Life appointment in federal court assures judicial independence. With the advice and consent of the Senate as a check, the federal judiciary remains for the most part balanced. It could possibly work the same way at the state level, but here are some concerns:
- In a one-party system such as we have in Mississippi, the governor pretty much gets to appoint whomever he chooses. A corrupt governor could turn judicial appointments into a cash cow (Note: this statement is purely hypothetical; I am not referring to any past, present, or future governor(s)).
- Favoritism and political affiliation can overrule merit and experience.
- An appointing authority with an agenda can ensure that he or she will have enough votes on the appellate court to enact it. That’s less of an issue at the trial level, but it’s a possibility.
Again, there are other flaws in an appointed system, too.
Some states have tried to neutralize the negatives of appointments by limiting the governor’s appointing authority to a panel of qualified candidates nominated by a blue-ribbon panel. That does not rule out some of the negatives mentioned above.
Other states have tried to strike a medium by providing for initial election or appointment for a term, and then requiring the incumbent to stand for a “retention” election at the conclusion of the term. If the vote is more than 50% to retain, then the incumbent continues in office; if less than 50%, then he or she stands for re-election with likely opposition. An obvious negative is that it replaces one election with two, with all the concomitant equipage of elections.
Still other states have employed variations on the foregoing themes. All have admirable as well as questionable qualities.
Bottom line is that there is no clear-cut, most advantageous approach.
In 1817, when the debate first arose over what form of judicial selection would be most likely to ensure judicial independence and integrity in our Mississippi courts. The decision back then, and in every successive constitutional debate, has been to retain the elected judiciary.
Reprise: Best Ways to Destroy a Child in the Course of Litigation
December 13, 2016 § 6 Comments
Reprise replays posts from the past that you may find useful today.
TOP TEN WAYS TO DESTROY A CHILD IN A DIVORCE OR CUSTODY CASE
April 20, 2011 § 2 Comments
If you have practiced family law any amount of time, you will marvel at the ingenuity of parents and other family members in devising ways to warp, hurt, demoralize and destroy children.
Here are some of the most effective:
- Use the children as pawns. Trash the non-custodial parent’s mail to the child, or hide birthday or Christmas presents. Use denial of visitation or contact as a tool to retaliate. Then tell the child it’s all the other parent’s fault.
- Use the children as spies. Nobody makes as good a spy as an insider. So what if it puts the children in the middle, or makes them feel like traitors, or makes them choose sides. As long as I get what I want, what does it matter, right?
- Deny the other parent access to the children. Very effective, especially when coupled with exagerrated or false claims of physical or sexual abuse. Utilized long enough, this tactic can completely estrange the children from the non-custodial parent. This ploy is so effective that children who grow into adults having experienced it often enjoy years of counselling.
- Make the children feel guilty for loving the other parent. This one is guaranteed to create maximum warpage. “Who do you love the most, me or mommy?” Some parents even punish the child for a “wrong” answer.
- Use the children as messengers. Mommy and daddy won’t talk to each other like adults, so the child is given notes, medical bills, school records, and so on. This is an effective way to put the children right in the middle, and to let them in on adult concerns. Gives them something more to worry about, and shifts the responsibility off of the parents.
- Criticize the other parent to the children. It really feels great to unload all of the hurt and anger you have toward your ex, and who is better than the children to understand exactly where you’re coming from? It feels super to get that off your chest — right onto the children.
- Model vindictive and spiteful behavior. “Do as I say, not as I do” is the motto of parents who engage in this behavior. Only problem is, that philosophy has never worked when raising children. But who cares? It’s worth it to take a swipe at the old ex, right?
- Ignore the children’s stress and negative behavior brought on by the litigation. Tell the children to quit that silly crying, or stop misbehaving or I’ll whip you, or “Quit acting like a baby.” None of that sissy stuff like holding and reassuring them, asking them to share their concerns, or simply devoting some one-on-one attention.
- Try to “win” the children over by relaxing discipline. Parents who want to be the child’s best friend, not an authority figure. Guaranteed to win the child over to that parent’s “side,” and to undermine the authority of the other “mean” parent. The fly in this ointment is that after a while the child won’t mind you no matter what. But that’s okay as long as you’re best buds, huh?
- Use the children as targets to vent your own anger and frustration. What’s wrong with lashing out at junior after a particularly frustrating conversation with your ex? Everything.
As lawyers, you can exercise a lot of influence over your client’s behavior. I can’t think of a more important subject about which you can influence your client than how to keep the children from being hurt in a divorce.
Preserving the Unexpected as an Issue for Appeal
December 12, 2016 § Leave a comment
Andrea and Thomas Taylor went to chancery court in a dispute over college-education language in the PSA that accompanied their 2003 divorce. Andrea took the position that it did not address college education tuition and expenses for their son, Austin. Thomas claimed that the agreement did address the issue, and he sued Andrea for contempt, demanding that she contribute to the more than $70,000 that Austin had incurred as student loans pursuing a commercial aviation degree at Delta State.
The chancellor did find that the PSA obligated both parents to contribute equally to their son’s college education expenses, and he found that those expenses totalled $61,136. He then ordered each party to pay $30,568 toward the judgment.
Here is where things get a little weird. The chancellor rendered the judgment not in favor of Thomas, and certainly not in favor of Andrea. The chancellor awarded the judgment to Austin, who was not a party; no one had requested that relief.
Andrea appealed.
In Taylor v. Taylor, handed down October 6, 2016, the MSSC affirmed. Here is the entire discussion from Justice Maxwell’s opinion:
¶6. “It is a long-established rule in this state that a question not raised in the trial court will not be considered on appeal.” Adams v. Bd. of Supervisors of Union Cty., 177 Miss. 403, 170 So. 684, 685 (1936) (citations omitted); see also Pierce v. Pierce, 132 So. 3d 553, 567 (¶ 37) (Miss. 2014) (citing McNeese v. McNeese 119 So. 3d 264, 267 (Miss. 2013)); In re Adoption of Minor Child, 931 So. 2d 566, 579 (¶ 36) (Miss. 2006) (citing Chantey Music Pub., Inc. v. Malaco, Inc., 915 So. 2d 1052, 1060 (Miss. 2005)); and Burnham v. Burnham, 185 So. 3d 358, 361 (¶ 10) (Miss. 2015) (citing Mills v. Nichols, 467 So. 2d 924, 931 (Miss. 1985)). Here, neither party challenged or objected to proceeding on Austin’s tuition and school expenses, or to the chancellor’s interpreting the underlying property settlement agreement from the couple’s 2003 divorce. Furthermore, after confronting the tuition and expenses issue, Andrea’s attorney asked several questions about the chancellor’s decision and allocation of the judgment. He even offered to prepare the order from which Andrea appeals. So both parties acquiesced in the manner in which the chancellor decided this matter. Because Andrea neither challenged nor objected to the chancellor’s authority to grant an award to her son at trial or in post-trial motions, this issue is forfeited and barred from our appellate review. [My emphasis]
Justice King dissented, joined by Randolph, on the basis that Austin was a necessary and indispensable party who should have been joined. That argument, though, presents a kind of a chicken-or-egg conundrum. The majority obviously went with the chicken (or is that the egg?).
In the course of a chancery bench trial, every issue presented and heard by the court serves as a basis for appeal, with or without a post-trial motion, assuming you timely object to unfavorable rulings. You do not even need to file a post-trial motion when the judge rules against you on the merits within the bounds of the relief prayed for.
BUT … when the chancellor reaches out beyond the scope of the pleadings and proof at trial and acts as the chancellor did here, you must preserve the issue for appeal by making a timely objection. So, how doe you do that?
You file a timely R59 motion not later than ten days after the date of entry of the judgment. Andrea could have done that, pointing out to the judge that it was error to award the judgment in favor of Austin, since he was not a party, and that the judge’s action was beyond the scope of relief sought by either party. By not giving the chancellor an opportunity to address her objections she waived them and lost her right of appellate review.
Discovery on Steroids
December 9, 2016 § 5 Comments
I know things can get tense out there, friends, but I hope it doesn’t come to this here in Mississippi:
A San Diego lawyer disbarred in a default judgment after walking out of his disciplinary trial says he plans to sue state officials involved in the proceedings.
The former lawyer, Douglas James Crawford, was accused of bringing pepper spray and a stun gun to a deposition, threatening to use them on opposing counsel if things got out of hand, and discharging the stun gun while pointing it toward opposing counsel, according to a summary of his case in the California Bar Journal. He was disbarred in September.
Crawford tells the San Diego Union-Tribune that he plans to sue for civil rights violations. He says he walked out of the disciplinary trial because he believed lawyers for the State Bar of California misrepresented facts and improperly kept him from presenting witnesses and evidence.
“As far as the disbarment, I could care less,” Crawford told the Union-Tribune. “It’s not really a group of people I want to associate myself with.”
A state bar court had found Crawford culpable in four of eight misconduct charges against him, according to the California Bar Journal summary and a July 2015 decision by the bar court hearing department. The bar court found he engaged in moral turpitude in the pepper spray and stun gun incident.
Crawford told the Union-Tribune that he brought the stun gun and pepper spray to the deposition because someone had brought a gun to another deposition and he felt unsafe. He said he displayed the stun gun and pepper spray to disclose that he was armed, but he never threatened anyone with them.
People bringing guns to depositions? People feeling unsafe at depositions? My Lord. And the disbarred lawyer is planning to sue for “civil rights violations.” Really.
I didn’t make this up. You can read the article at this link.
Communicating: Improving a Basic Skill
December 7, 2016 § 1 Comment
At its heart the legal profession is all about communicating, which consists of at least several elements:
- First, one must understand that which must be communicated. This entails analysis of the situation to break it down into its legal elements, and then application of the law to those elements.
- Second, the analysis has to be translated into understandable words.
- Third, the understandable words have to be presented in an organized, understandable, persuasive manner.
You can probably improve on that, but it suits my purposes for now.
At the trial level, effective communication involves well-written pleadings and briefs or memoranda of law, and oral argument, as well as the way you examine witnesses. At the appellate level, brief-writing and oral argument depend heavily on how well the lawyer can communicate.
Some things that get in the way of effective communication are poor grammar and spelling, improper word choice and usage, and disorganized thinking. And, it should go without saying that your communication is for naught if your legal analysis is flawed.
Here are a few tools to help you craft your communications effectively:
- The Elements of Style, by William Strunk and E.B. White. This little gem at fewer than 100 pages (at least in the worn edition I have), is crammed with useful insights into effective writing. Here you will find such usage solutions as how to create the possessive plural of names ending in s, proper use of semi-colons with clauses, whether to use a singular or plural verb forms with words such as “or” or with linking verbs, and the proper case of pronouns, all presented in clear language with easy-to-grasp examples. There are other sections on principles of composition, matters of form, misused words and expressions, and suggestions for improving your style of writing.
- Fowler’s Dictionary of Modern English Usage, by H.W. Fowler, Jeremy Butterfield, editor. When should one use italics? What is the difference between reciprocal and mutual, or apprehend and comprehend, or unless and until? Why the word “literally” conveys the opposite sense of what you intend? Do we still observe rules such as avoiding split infinitives and ending sentences with a preposition (hint: it’s usually okay to)? You will find answers to these and many, many other questions that routinely pop up as you write in this useful book that is arranged by subject alphabetically.
- Any good thesaurus. When you say the same thing over and over using the same words, your words have no impact.
- A good dictionary. Before you use that word, you might want to look it up (takes three seconds) to make sure it means what you think it does.
- The Law Prose blog. A gold mine of information on proper and potent use of legal terminology. This is one you should bookmark.
- Adams on Contract Drafting offers guidance on how to draft contracts in ways that avoid ambiguity and clearly state the intent of the parties. Even if all of your drafting practice consists of property settlement agreements, you can learn something here about how precision in the use of language can make a big difference between success and failure of your instruments.
- Here’s a link to an article in the ABA Journal Online on How to Bring a More Conversational Tone to Your Writing, which is meritorious in its own right, but illustrates also that there are resources all over the internet that you can bring to bear in your quest to be a more productive communicator.
You may be surprised how, when you concentrate on making your language more concise, correct, and powerful, you will simultaneously discover weaknesses in your legal analysis and thought process that you can shore up and strengthen before you ever dispatch that communication to counsel opposite and the court. That’s the kind of strength that distinguishes a really good lawyer from a mediocre one.
Excluding a Party from the Court Room During Trial
December 5, 2016 § 6 Comments
NOTE: The MSSC reversed the COA in Miller v. Smith, decided October 26, 2017. The Supreme Court’s decision held that a party may not be excluded from the courtroom, per Article 3, Section 25 of the Mississippi Constitution.
When it comes time for children to testify in a chancery court trial, there is a host of factors to take into account. Is it in the child’s best interest to testify? Is the child competent? Is it really necessary to subject the child to that experience?
Once the decision is made to allow the child to testify, the question arises as to how the testimony should be taken. Should the parents be present?
That question arose at trial in the case of Miller v. Smith, decided by the COA on November 22, 2016. In that case, the chancellor had excluded both the father and the mother from the court room in a contested child-custody modification case where an adolescent step-child offered testimony of sexual abuse. In an opinion affirming the trial judge, Judge Fair wrote for the COA:
¶18. At trial, Jessica’s daughter Kristen testified to several instances where Dale sexually harassed and/or abused her. The chancellor stated that due to the nature of the testimony, she preferred to clear the courtroom for Kristen’s interview, having present only the lawyers and the court reporter. The testimony was recorded, and a transcript appears in the record on appeal. Kristen testified that she went to the police to report one of the incidents (the police report was in evidence and part of the GAL’s report), but the police did not investigate further because there was no physical evidence of abuse. Also, the Mississippi Department of Human Services (MDHS) conducted an investigation (the report was also in the record and part of the GAL’s investigation) but found no physical evidence of sexual abuse. Kristen was cross-examined by Dale’s attorney, and Dale gave rebuttal testimony to his version of the events.
¶19. Dale argues the chancery court erred in allowing Kristen to testify outside of his presence. He specifically argues that doing so violated the confrontation clauses of both the United States and Mississippi Constitutions. He further argues that his forced absence from the courtroom violated Mississippi Rules of Evidence 615 and 617.
¶20. The Confrontation Clause only applies to criminal cases. “In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him . . . .” Miss. Const. art. 3, § 26 (emphasis added). So Dale’s first argument fails.
¶21. Article 3, Section 25 of the Mississippi Constitution simply provides that “[n]o 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.” Because Dale’s counsel was present during Kristen’s testimony, there was no violation of Article 3, Section 25.
¶22. Further, Dale’s argument that the chancery court violated Rule 617 is misplaced. No interview was taken using closed-circuit television, as provided in Rule 617. [Fn 7]
[Fn7]
Rule 617 provides:
(a) Grounds. On the motion of a person named in subdivision (b), or on its own, the court may order that a child’s testimony be taken outside the courtroom and shown in the courtroom by means of closed-circuit television if the court determines that:
(1) the child is under the age of 16 years;
(2) the testimony is that an unlawful sexual act, contact, intrusion, penetration, or other sexual offense was committed on the child; and
(3) there is a substantial likelihood that the child will suffer traumatic emotional or mental distress if compelled to testify:
(A) in open court; and
(B) in a criminal case, in the presence of the accused. (Emphasis added).
¶23. Dale asserts that Rule 615, commonly known as “the Rule,” and occasionally more properly “the exclusionary rule,” deprived him of due process. Rule 615 states:
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person . . . .
¶24. The chancellor disregarded Dale’s objection to being forced to leave the courtroom during Kristen’s testimony. Because Dale was a party, he argues that, under a strict interpretation of the Rule, the chancellor did not have the authority to exclude him from being present. The procedure used by the chancellor in this case (excluding parents and/or stepparents in basically an “in camera” proceeding) is common, either by agreement or without objection of parties, in custody cases. See Robison v. Lanford, 841 So. 2d 1119, 1121 (¶21) (Miss. 2003) (holding that, as a matter of first impression, records of in-chambers interviews with children during child custody modification proceedings were required to be made).
¶25. There are exceptions to the Rule. For example, in Rule 617, parties who are alleged to be guilty of sexual abuse of a child may be excluded from the personal presence of children ages sixteen and under. M.R.E. 617. There is not, however, reported precedent of enforced exclusion of a party under the present circumstances of testimony by a seventeen year-old stepchild.
¶26. In a number of criminal cases, our supreme court has found that failure of enforcement of the exclusionary rule does not automatically result in reversal, holding that prejudice must accompany failure to exclude. See Avery v. State, 119 So. 3d 317, 320 (¶9) (Miss. 2013); Woulard v. State, 832 So. 2d 561, 565 (¶13) (Miss. 2002). Here, Dale has failed to show how he was prejudiced from the chancellor’s error. Not only was his attorney present during Kristen’s testimony, he cross-examined Kristen. The chancellor also allowed Dale to give rebuttal testimony to factual assertions by Kristen. Consequently, we find that no reversible error has been shown under this issue.
The situation described here is, as Judge Fair notes, fairly common in chancery court. In my experience, the parties often agree that they will leave the court room during the child’s testimony, as long as their attorneys can remain and participate. Most parents do not want to appear to be trying to pressure the child or to be putting their own interests ahead of the child’s, so they agree. In those cases where they both do not agree, however, and the chancellor finds that it would be in the child’s best interest for them to be excluded, this case is authority to support that action.
“Quote Unquote”
December 2, 2016 § 9 Comments
” … What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen erecting a spiritual tyranny on the ruins of Civil authority; in no instance have they been seen the guardians of the liberties of the people. Rulers who have wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries. A just Government instituted to preserve and perpetuate it [public liberty] needs them not. Such a government will be best supported by protecting in every Citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of others.” — James Madison
” … this would be the best possible world if there were no religion in it.” — John Adams (quoted by Jefferson in a letter)
“In every country and in every age the priest has been hostile to liberty. He is always in alliance with the despot. … they have perverted the purest religion ever preached to man into mystery and jargon, unintelligible to all mankind, and therefore the safer engine for their purpose.” — Thomas Jefferson
[I came across these quotes and thought they were share-worthy as a counterpoint to the school of thought that our founding fathers intended this to be a Christian nation. Madison, Adams, and Jefferson were three of the most prominent founders. Madison is considered by many scholars to have been a Deist, and Jefferson definitely was so. Jefferson revered the teachings of Jesus, but believed Christianity had subverted and corrupted His teachings. Adams, who was a Congregationalist and later a Unitarian, considered himself a Christian, but shared Jefferson’s views on Christianity.
Two other founding fathers, Thomas Paine and Benjamin Franklin, were also Deists. Paine’s Age of Reason is a scathing denunciation of religion. Franklin considered himself both a Deist and a Christian. Franklin made a motion at the 1787 Constitutional Convention that every session begin with a prayer for God’s guidance; the motion was defeated.
What the founders shared was an abhorrence of any state-sponsored religion such as the Anglican Church in England. They also recognized that there were many different religions planted in and taking root in the new nation, and that any persecution for religious beliefs would be too much like the English system, which the rejected. Hence the First Amendment.
When the French were looking for a model for their post-royalty nation, they admired the new United States Constitution, and used it as a template for their own recognition of the rights of citizens. After consultation with several of our founders, they were persuaded to make their own government a purely secular one, which, with a few deviations, it has remained to this day.]
BCPB Earns Spot in ABA Journal’s Blawg 100 Listing
November 30, 2016 § 3 Comments
Thanks to you, the Better Chancery Practice Blog has elbowed its way onto the ABA Journal’s Blawg 100, which is the publication’s annual list of the best blogs about lawyers and the law.
You can access the full list at this link.
I consider this quite an honor, since only the best 100, of the more than 4,000 legal blogs recognized by the ABAJ, are listed.
My sincere thanks to everyone who participated in the nomination process, and to everyone who takes valuable time from their day to entertain my musings.
