Reprise: The Two Types of Lawyers
August 20, 2015 § 1 Comment
Reprise replays posts from the past that you might find useful today.
The Two Types of Lawyers
July 31, 2014 § 3 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.
Double Dipping in Equitable Distribution
August 18, 2015 § 3 Comments
When Michael and Rosie Jackson went through their divorce, the chancellor awarded the former marital residence to Rosie and ordered that she pay the mortgage debt on it. The parties agreed that the value of the home was $78,000, and that its mortgage debt was $50,103, resulting in equity of $27,897.
When the chancellor toted up the assets, he assigned the equity to Rosie. Her share of the marital assets amounted to $31,928, and Michael’s share came to $120,310.64. The difference in favor of Michael was $88,382.64.
Then the chancellor allocated the marital debts between the parties. Michael was assigned $4,950 in credit card debt, reducing Michael’s asset value to $115,360. Rosie was assigned the mortgage debt, which the chancellor found to have reduced Rosie’s asset value to minus $18, 175. In order to equalize the estates based on that arithmetic, the chancellor awarded Rosie lump-sum alimony $57,680.32.
Before going any further, take a moment and ask yourself whether there is any flaw in that arrangement.
In Jackson v. Jackson, handed down by the MSSC on August 13, 2015, the court reversed in part and remanded because the chancellor counted the mortgage debt twice: once by subtracting it from the total value of the property; and a second time by including it in the debts assigned to Rosie. The result was that Rosie’s share of the marital estate was undervalued by $50,103, which in turn affected the amount of lump-sum alimony awarded. The case was sent back to the trial court for a re-do on that issue. All other issues were affirmed.
The COA had affirmed this decision and brushed aside Michael’s complaint about the calculation, noting that our law requires only that the division of the marital estate be equitable, not necessarily equal. The COA’s decision was the subject of a prior post here dealing with homosexual behavior as habitual cruel and inhuman treatment.
Judges do make mistakes when it comes to juggling those numbers in equitable distribution cases. Always check behind the judge for errors in handling debt such as was done here. While you’re at it, check arithmetic and make sure that the figures used match up with the evidence. File a timely R59 motion if you catch an error. Better to let the judge fix it, if she will, than to have to go to the expense of an appeal.
Love and the Family Jewels
August 17, 2015 § 5 Comments
Love, as they say, conquers all, including good judgment in some cases.
Most of us have seen this scenario more than once: Boyfriend, hopelessly in love with girlfriend, proposes marriage; Girlfriend, eyelids batting furiously, says “yes”; Boyfriend slips a rather expensive engagement ring on Girlfriend’s finger; wedding ensues, converting Boyfriend and Girlfriend to Husband and Wife; marital bliss soon gives way to combat; Husband retains attorney; Wife does the same. You represent Husband. Here is the conversation in your office:
H: Oh, and not only do I not want her to get anything, but I want that engagement ring back.
You: Under our law an engagement ring is a gift; the judge will not give it back to you.
H: Oh yes he will because it belonged to my mother. It’s been in the family for 175 years. It was given to my great (etc., etc.) grandmother by Napoleon just after his victory at Austerlitz.
So let’s pause right there while you catch your breath. So it’s an heirloom. And a valuable antique, to boot. What to do?
Well, first off, you were right to point out that if it meets the elements of a valid gift, the judge is not going to take the ring away from her. Those elements are: (1) that the donor was competent to make a gift; (2) that the donation was a voluntary act and the donor had donative intent; (3) that the gift must be complete and not conditional; (4) that delivery was made; and (5) that the gift was irrevocable. In re Estate of Ladner, 909 So.2d 1051, 1053 (Miss. 2004). Those are fact issues, and the burden of proof is clear and convincing.
In a recent case the COA addressed a similar situation (not involving Napoleon). Here’s how Judge Barnes’ opinion laid out the dispute in Lomax v. Lomax, decided August 11, 2015:
¶11. The main point of contention in the divorce and the determination of marital property concerned the chancery court’s award of the engagement ring to Tara. The chancellor concluded that Tara was entitled to keep the ring, which had previously belonged to Max’s mother, since Max had given the ring to Tara as an inter vivos gift prior to the marriage. Max argues that the parties had an oral agreement that if the marriage did not work out, the ring would be returned to his mother. At the hearing, Max testified that his mother’s ring was given to Tara under the condition that once Max could afford another stone for the ring setting they had purchased, she would return the ring.
¶12. Tara, however, emphatically denied that there was an actual agreement that the ring would be returned, but she acknowledged that after the couple separated, she told her mother-in-law she wanted to be “fair” and return the stone. But she explained at the hearing that when she made that comment to Max’s mother, she “didn’t realize that [Max] intentionally wanted to cost [her] $20,000” to obtain the divorce.
The chancellor awarded Tara the ring. Judge Barnes addressed Max’s claim that the chancellor was in error by letting Tara keep the family jewels:
¶13. In Neville v. Neville, 734 So. 2d 352, 357 (¶19) (Miss. Ct. App. 1999), this Court held that since an engagement ring was a gift that predated the marriage of the parties, it “was not a marital asset subject to equitable division.” “It was, therefore, beyond the chancellor’s authority to order [the wife] to return possession of that item to [the husband] and [the chancellor’s] refusal to do so cannot constitute reversible error on appeal.” Id. Accordingly, we find no error in the chancellor’s decision to award the engagement ring to Tara.
In the Neville case, incidentally, Mr. Neville claimed that the ring was a family heirloom.
A few observations:
- The ring does not just disappear from the marital equation. It is considered Tara’s separate property, and its value will be considered, along with her share of the equitable distribution, in determining whether she has a “deficit” that would justify alimony.
- The fact that it was a family heirloom does not enter into the picture. If the giving of the ring meets all the requirements of a gift under Mississippi law, it belongs to the donee.
- Max might have wanted to memorialize his version of the transaction with a pre-nup that provided that Tara would return the ring in the event of a marital dissolution, particularly if it had monumental value like the Napoleon ring mentioned above.
- I think the outcome would have been different had Tara admitted on the witness stand that the ring was not a gift, but was hers temporarily only until Max could replace the valuable stone in it. The judge believed Tara that the ring was an unconditional gift, and that did in Max’s position. The chancellor is the ultimate determiner of whom to believe.
- Would the outcome before the COA have been different if it were not only a family heirloom, but also a priceless antique with a provenance linked to one of the great figures in world history? We’ll have to wait until our appellate courts are confronted with such a fact situation. Until then, I think it’s safe to conclude that if the ring is gifted, it’s the property of the one to whom the gift is given — divorce or none.
Is Equity Outmoded?
August 13, 2015 § Leave a comment
I pointed out here not too long ago that there is a significant distinction between the systems of law and equity in civil actions. Law courts (except in the case of an injunction action) grant money judgments and common-law remedies such as writ of habeas corpus. Equity (chancery courts) craft a remedy that will solve the underlying problem by crafting a remedy that may include coercion, prohibition, possession, dispossession, imposition of a trust or lien, money judgment, and any other action or combination of actions deemed appropriate to the situation.
Yet, as fundamental as that distinction is, I have posited here before that it seems more and more to be a challenging concept to our appellate courts.
Even in states that have merged law and equity, the distinction between legal and equitable remedies is important, because in those states, equitable remedies may not be imposed until the court finds that legal remedies are inadequate. UCLA Law Professor Samuel Bray has written a paper pointing out that the classification of some remedies as equitable is alive and well in jurisprudence across the nation, and that equitable remedies are actually part of a system that must not be dismantled unless and until something better replaces it. I believe his piece helps illuminate how vital equity, and chancery court, is in the scheme of our jurisprudence.
Here is the abstract:
The conventional wisdom is that the distinction between legal and equitable remedies is outmoded and serves no purpose. This Article challenges that view. It argues that the existing equitable remedies and remedy-related doctrines can be seen as a system. The components of the system fall into three categories: (1) equitable remedies, (2) equitable managerial devices, and (3) equitable constraints. These components interact subtly and pervasively. Together, they make the system of equitable remedies well suited to controlling a defendant’s behavior, especially in ways that are open-ended and adverbial. The system of equitable remedies is a useful and integrated whole.
This argument offers some support for an emerging body of Supreme Court cases that have sharply distinguished between legal and equitable remedies — cases such as Great-West Life & Annuity Ins. Co. v. Knudson, eBay v. MercExchange, and Petrella v. MGM. Moreover, this argument helps explain why there has been so little merger between law and equity in remedies, even as merger has happened in other aspects of American law. Finally, this argument offers a new perspective on the adequacy requirement, showing that it helps maintain the system of equitable remedies.
You can reach his article at this link. You might find his research handy next time you have a chancery appeal involving equitable remedies.
Thanks to Professor Bray for bringing this to our attention.
Maxwell’s Maxim of Equity
August 11, 2015 § 3 Comments
“It has been said: ‘[E]quity must follow the law. But where the law provides no remedy, equity may do so.’ To that we would add: Since ‘equity must follow the law,’ where the law prohibits a remedy, equity may not do so.”
That is the first sentence (footnote omitted) of the COA’s opinion in Mosley v. Triangle Townhomes, LLC, penned by Judge Maxwell, and decided July 28, 2015.
In that case, Harold Mosley had filed suit in chancery court for specific performance against Triangle Townhomes, LLC, who, he alleged, had promised to pay him “a fair and equitable finder’s fee if he found a buyer” for that company’s apartment complex. Mosley did find a buyer, who paid $6 million. Mosley, who was not a licensed real estate broker, claimed that he had repeatedly demanded that Triangle pay him, but the entity refused. He wanted the chancery court to award him a finder’s fee of between 3% and 5% ($180,000 – $300,000), since a licensed realtor would have charged 6% to 10% ($360,000 – $600,000).
Now, this would seem on the surface to be the quintessential case for equitable relief. A promise, upon which another acted in good faith, producing monetary benefit to the promisor, followed by a refusal to pay. Equity to the rescue, right?
Not so fast.
Triangle filed a R12(b)(6) motion to dismiss for failure to state a claim because MCA 73-35-33(1) prohibits any person without a license from filing suit to recover a real estate broker’s fee. Judge Maxwell described how the chancellor ruled:
¶6. The chancellor agreed that no equitable doctrine or quasi-contract theory could prevail over the clear public policy that anyone performing real-estate-broker services, even just one time, must be duly licensed. See Miss. Code Ann. § 73-35-1 (Rev. 2012); Miss. Code Ann. § 73-35-3(1), (3) (Rev. 2012). Mosley was not a licensed real estate broker. Nor did he fall under a statutory exception. See Miss. Code Ann. § 73-35-3(8) (Rev. 2012). So because section 73-35-33(1) prohibited him from suing for any fee connected with real-estate-broker services, the chancellor dismissed Mosley’s action.
Mosley appealed, and in an eight-page opinion, the COA affirmed, concluding essentially the same as had the learned chancellor.
This case illustrates that equity does, indeed, follow the law. The law prohibited Mosley from bringing his suit, and the chancellor followed the law that dictated that result. In doing so, the chancellor followed one of equity’s most ancient and keystone maxims. Judge Maxwell’s corollary: ” … where the law prohibits a remedy, equity may not do so (i.e., provide a remedy)” is the flip side of that maxim.
I’m always heartened when I see maxims and equitable principles at the heart of our appellate court decisions. I take it as a sign that maybe equity is still viable, after all. So in honor of the occasion, I propose adoption of a new maxim of equity, which I will call Judge Maxwell’s Maxim: “Where the law prohibits a remedy, equity may not provide that remedy.” Hear, hear!
The Practicality of Joint Custody
August 10, 2015 § 7 Comments
We are seeing joint custody arrangements more and more frequently in ID divorces. And recent cases out of our appellate courts have signaled not only that joint custody may be awarded in a contested case, but that it should be considered in every case.
When MCA 93-5-24 was first adopted to provide for joint custody arrangements, it was frowned on by many chancellors who believed it was in the best interest of the child “to know where his home is,” and because once it was imposed, it was devilishly difficult to get out of because it required the same showing as modification of custody (material change in circumstances + adverse effect + best interest).
Over time, experience taught us that stability for a child arises more out of a loving, safe, attentive home environment than out of a particular place, and that there were plenty of parents who could provide that kind of environment, even when living apart in separate households.
Another change that made joint custody more attractive was the amendment of MCA 93-5-24(6) to provide that: “Any order for joint custody may be modified or terminated upon the petition of both parents or upon the petition of one (1) parent showing that a material change in circumstances has occurred.” That’s significantly easier to modify than sole custody.
Just because your client wants to agree to joint custody, however, does not mean that it should be adopted. A recent case shows how the practicality of the custody arrangement must be taken into account.
Debra and Christopher Thames separated in 2013, when Debra left Mississippi and moved to San Antonio, Texas, taking the parties’ one-year-old daughter with her. Christopher filed for divorce, and the parties entered into a consent for the judge to adjudicate custody. The chancellor ordered that the parties share joint physical and legal custody, alternating one-month periods of physical custody between them. Debra appealed.
In Thames v. Thames, handed down July 28, 2015, the COA reversed and remanded. Judge Lee, for the court:
¶11. “[T]he polestar consideration in child[-]custody cases is the best interest and welfare of the child.” Albright v. Albright, 437 So. 2d 1003, 1005 (Miss. 1983). To that end, chancellors must conduct an Albright analysis, weighing each of the applicable factors. Id. Where both parties consent in writing to submit the issue of custody to the chancellor for his determination, and the chancellor finds both parents fit, joint custody may be awarded. Crider v. Crider, 904 So. 2d 142, 143-49 (¶¶3-17) (Miss. 2005). “[J]oint custody should not be awarded[, however,] where it is impractical or burdensome to the children.” Jackson v. Jackson, 82 So. 3d 644, 646 (¶9) (Miss. Ct. App. 2011). The parents must also be capable of cooperating if joint custody is to be awarded. Crider, 904 So. 2d at 148 (¶16).
¶12. Debra does not attack the soundness of the chancellor’s Albright analysis, but argues that the chancellor failed to consider whether the joint-custody arrangement was practical due to the distance Sofia had to travel every month. Debra also claims the chancellor failed to consider whether the parties were capable of cooperating. Because we find that the joint custody arrangement is impractical, we decline to address whether the parties are capable of cooperating.
¶13. “There have been prior decisions regarding initial joint-custody arrangements that became impractical after one or both parents moved.” Massey v. Huggins, 799 So. 2d 902, 906 (¶11) (Miss. Ct. App. 2001) (citations omitted). In McRee v. McRee, 723 So. 2d 1217, 1218-19 (¶4) (Miss. Ct. App. 1998), this Court affirmed the chancellor’s decision to modify custody based on the father’s relocation to Houston, Texas. The chancellor found that “[t]he joint-custody agreement, which provided for the child to stay with each parent on alternating months, was impractical once [the father] moved to Texas.” Id. at 1219 (¶6). He found that a modification was inevitable and that the question to be answered was who was to have primary custody. Id. The parties to that suit agreed. Id. In Massey, 799 So. 2d at 905-06 (¶¶6-13), this Court agreed with the chancellor that joint physical custody was impractical where one party moved to Long Beach, Mississippi, and the other to Petal, Mississippi. The chancellor was quoted as saying, “as I view the situation, the biggest change that has occurred, as far as these parties are concerned, is that their joint[-]physical[-]custody arrangements are not possible now because they live in different areas of the state.” Id. at 906 (¶13). He stated that there would “have to be a change of [physical] custody” and that the issue was “whether it’s going to be with the mother or father.” Id. The initial custody arrangement in Massey had four exchanges between the parents each week, and both parents sought sole custody upon modification. Id. at 905-06 (¶¶5-13).
¶14. There are also prior decisions that discourage the use of alternating custody arrangements. Case v. Stolpe, 300 So. 2d 802, 804 (Miss. 1974); Brocato v. Walker, 220 So.2d 340, 343 (Miss. 1969); Daniel v. Daniel, 770 So. 2d 562, 567 (¶15) (Miss. Ct. App. 2000). See also Lackey v. Fuller, 755 So. 2d 1083, 1088-89 (¶¶27-29) (Miss. 2000). In Daniel, the child was alternating custody back and forth between Arkansas and Mississippi every two weeks. Daniel, 770 So. 2d at 563-66 (¶¶2-14). This Court, noting that this type of arrangement was to be discouraged, declined to make any changes because the child was nearing the age of five-year-old kindergarten, at which time the father was to exercise primary physical custody. Id. at 563-67 (¶¶2-15). We declined to interrupt what had become the child’s regular routine. Id. at 567 (¶15).
¶15. After conducting an Albright analysis, the chancellor in this case found that joint custody was in Sofia’s best interest, irrespective of the distance she would have to travel to spend time with each parent. We do not agree. Given the distance between San Antonio, Texas, and Brandon, Mississippi, a monthly alternating custody arrangement is not in Sofia’s best interest. The distance between San Antonio and Brandon renders this custody arrangement impractical. In McRee, we agreed with the chancellor that an alternating monthly custody arrangement that shifted the child between Houston, Texas, and Jackson, Mississippi was impractical. See Massey, 799 So. 2d at 906 (¶13). The distance between San Antonio and Brandon is even greater. We, therefore, reverse the chancellor’s judgment and remand this case for a reconsideration of the Albright factors and a determination of who is to have primary custody of Sofia.
That’s a nifty review of the law of joint custody in a nice block of research that you can copy and paste into a motion or even a brief.
This decision should remind you that you have got to advise your clients about what is and is not workable as a joint custody arrangement. Practicality is a significant consideration.
One quibble: Are we going to keep talking about “primary physical custody” or “primary custody” when the MSSC has told us in no uncertain terms that the word “primary” when used in conjunction with any form of custody has no meaning in the law? Porter v. Porter, 23 So.3d 438 (Miss. 2009). I posted about Porter and its pitfall at this link.
“Quote Unquote”
August 7, 2015 § Leave a comment
“There is no old age. There is, as there always was, just you.” — Carol Matthau
“Once the game is over, the king and the pawn go back into the same box.” — Italian Proverb
“If you don’t know how to die, don’t worry; Nature will tell you what to do on the spot, fully and adequately. She will do this job perfectly for you; don’t bother your head about it.” — Michel de Montaigne
An Exception to the Slayer Statute
August 6, 2015 § 1 Comment
Only yesterday I posted here about the danger posed by the untreated mentally ill in society.
Last week the MSSC handed down a decision in a case involving a “severely mentally ill man,” a homicide, and an adjudication at the trial level that he was not to inherit from his victim. The court reversed and remanded.
Here is the brief statement of grisly facts from the opinion by Justice Randolph in Estate of Armstrong: Armstrong v. Armstrong, handed down July 30, 2015:
¶2. On August 7, 2010, Joan Armstrong was contacted by several of her son’s neighbors, who were worried about their children’s safety, after they noticed John acting erratically. John had a long history of serious mental illness, having been treated since 1989. [Fn omitted] Joan picked up John at his apartment and brought him back to her condominium. Joan had invited some of her friends to come over to the condominium swimming pool. Worried that his mother was leaving him, John went upstairs and retrieved a crochet-covered brick, which he used to hit Joan repeatedly over the head. He then moved her body to the bathroom and repeatedly stabbed her. He informed law enforcement officers from the Ocean Springs Police Department (OSPD) that he was preparing her body to be buried by bleeding her.
¶3. Joan’s death certificate listed her cause of death as “contusion of brain with subdural and subarachnoid hemorrhage [due to] multiple blunt force injuries of head.” Joan also sustained multiple stab wounds and rib fractures. Joan’s death was listed as a homicide due to the multiple strikes to her head.
John, who experienced delusions and hallucinations and had been diagnosed as paranoid schizophrenic, admitted to the police and his sister that he had killed his mother. He was found by the circuit court not to be competent to stand trial, and was sent to Whitfield until he might become competent to stand trial.
Joan’s testate estate was opened, and John, along with his siblings, were beneficiaries. The executor filed a motion to declare John’s devise void, pursuant to MCA 91-5-33, known as the “Slayer Statute,” which provides in part as follows:
If any person shall wilfully cause or procure the death of another in any manner, he shall not take the property, or any part thereof, real or personal, of such other under any will, testament, or codicil. Any devise to such person shall be void and, as to the property so devised, the decedent shall be deemed to have died intestate.
A guardian ad litem was appointed. She defended the motion on several grounds, but primarily on the basis that the executor failed to show that John had willfully caused Joan’s death as prescribed in the statute. The chancellor found that willfulness as provided in the statute had to be interpreted in a civil, not criminal, context, and that John’s willfulness was evidenced by:
1. John was discovered at Joan’s home with Joan’s body by law enforcement. John was covered in Joan’s blood.
2. In the immediate aftermath of the homicide, John confessed to law enforcement. This confession was witnessed by John’s sister-in-law who offered testimony at this motion hearing.
3. OSPD, at the conclusion of their investigation, issued a Complaint alleging John, “feloniously, willfully and unlawfully with deliberate design” caused the death of Joan.
4. A Jackson County Grand Jury returned an indictment against John for the willful and felonious murder of Joan.
The chancellor granted the motion, and John’s GAL appealed.
In a case of first impression, the MSSC reversed and remanded the case to the chancery court for a determination whether John was insane at the time of the killing:
¶22. It is clear from well-established precedent that willful is synonymous with intentionally, knowingly, deliberately, and purposely. In order for the Slayer Statute to apply to this case, John must have acted willfully in killing his mother. The record reveals that John has suffered from hallucinations and delusions for more than two decades. He has been diagnosed as a paranoid schizophrenic. John’s thoughts are disorganized and very difficult to understand, and he often speaks in “word salad,” which means that he uses words that are unrelated and disconnected. However, the record is silent as to John’s mental state at the time of the killing.
¶23. In this matter of first impression, this Court concludes that Mississippi should follow the majority of states and holds that the Slayer Statute requires a finding of willful conduct to preclude a person from inheriting from his or her victim. Because an insane person lacks the requisite ability willfully to kill another person, the Slayer Statute is not applicable in cases where the killer is determined to be insane at the time of the killing.
[T]he words used by Mr. Justice Nelson, when Chief Justice of New York, said that “self-destruction by a fellow being bereft of reason can with no more propriety be ascribed to the act of his own hand than to the deadly instrument that may have been used by him for the purpose,” and “was no more his act, in the sense of the law, than if he had been impelled by irresistible physical force.”
Great S. Life Ins. Co. v. Campbell, 148 Miss. 173, 114 So. 262, 263-64 (1927) (quoting Manhattan Life Ins. Co. v. Broughton, 109 U.S. 121, 132, 3 S. Ct. 99, 105, 27 L. Ed. 878 (1883)).
¶24. While this result is grounded in legal precedent, it may prove to be unsettling to some. However, it is not the duty of this Court to determine public policy. If the law as it now exists is in need of change, that task is for the Legislature.
A few thoughts about this case:
- Does this case forebode a shift in the standard for criminal responsibility?
- My hat is off to attorney Stacie Zorn for her work as GAL. She did exactly what a GAL in that role is supposed to do, and she accomplished a change in the law in the process.
- Operation of the “Slayer Statute” is a subject I have posted about here before.
- I had written yesterday’s post about mental illness week before last and scheduled it for publication yesterday. The MSSC’s Armstrong Estate decision came down in time for the resulting juxtaposition.
People in the Shadows
August 5, 2015 § 9 Comments
Ghandi is often quoted as having said that “A civilization is measured by how it treats its weakest members.” Hubert Humphrey said, “the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped.”
It’s fashionable today to emphasize personal responsibility over governmental (and taxpayer) responsibility when it comes to the poor, the needy, the elderly, and even children. Government keeps looking for ways to stint on spending on people at the margins.
What those people have in common is that they are our weakest members, and arguably the weakest among them, “in the shadows of life,” are our mentally ill.
If it is true that we are to be measured by how we treat the mentally ill among us, and the moral test of our government is how we treat our mentally ill, then, I must tell you, we fail to measure up, and we fail the moral test.
Our mental heath system in Mississippi is not just broken, it is broke. It is underfunded and not up to the task.
It happens all too often that a chancellor will order a person to be committed to a state hospital one day, only for that same person to be released days or at most a couple of weeks later. The hospital does not have the resources for long-term care. Instead, the patient is admitted, then given enough medication to alleviate the symptoms, resulting in a finding that the patient is no longer a danger to himself and others, and thereby resulting in his release back into the general public. Once back on the street the person stops taking his medication and soon lapses again into being a true danger to himself and others, requiring yet another commitment proceeding, usually at the expense of the family.
Many of the unkempt, confused people you see wandering the streets are mentally ill. They are the castaways who, due to mental illness, have exhausted the support, financial resources, and patience of families and friends, leaving them nowhere to go but the streets. Mental illness impairs judgment and insight. It impairs one’s ability to take care of oneself.
More significantly, the mentally ill can be dangerous. Paranoid schizophrenics can be extremely dangerous, and even murderous. Ask the folks in Lafayette, Louisiana, whether the indisputably mad man who gunned down two innocent women in a cinema was not dangerous.
I once represented parents who had committed their paranoid-schizophrenic son to the state hospital system nearly a dozen times. He threatened to kill them, other family members, and neighbors whenever he was off of his medication. Once in the hospital, with his medication regulated, the voices in his head became more benign, and he calmed down. Then he was released, stopped taking his medication, and the demons soon returned from where the medications had banished them, more furious than ever. The parents feared for their lives, and all our system could offer them was a revolving door. Perhaps a greater level of protection would have been available if the young man actually killed or seriously maimed someone.
Let me be clear that I am not trying to stigmatize or demonize the mentally ill. Not all are dangerous. But we do have to recognize that some are, and that those do pose a threat to public safety.
It is the responsibility of the state to protect the safety of the citizenry, and to provide adequate systems for taking care of those who are so impaired that they can not care for themselves. Yet, we do not do either in Mississippi when it comes to the mentally ill.
The mentally ill have no PAC or voting bloc, as far as I know. They are not invited to, much less welcome at, $500-a-plate political fundraising dinners. We live in a pay-to-play political world, where political clout gets results. The mentally ill have no political clout, and it shows in how we prioritize their needs in our state budget.
Years ago, the standard treatment for such undesirables was to buy them a bus ticket to somewhere far away. Nowadays, we don’t buy the ticket; we simply turn them out onto the street with the hope that they will go somewhere else and be someone else’s problem.
It does not have to be this way. We can fund our mental health system at a level where it can provide an acceptable level of service. It’s the 21st century, after all. We should be at that point.
Or, we can buy bus tickets.
[This post was written before the 60 Minutes piece on this subject was aired last Sunday.]
