How Cases are Decided at the COA: Part Four
May 19, 2014 § 4 Comments
Continuing with Judge Griffis’s paper …
4. Full Court Consideration
a. Circulation
Each panel opinion is circulated to the non-panel judges (i.e., the “Full Court”) for consideration and vote. The briefs are not circulated with the final panel opinions.
When a panel opinion is in Full Court circulation, each non-panel Judges decides what materials they need to review to vote on the opinion. Each Judge may obtain the briefs, the record, the transcript or any other document filed in the case for their review and consideration. Each Judge may also talk to the panel Judges about the facts, issues, or the panel’s decision. With electronic filing of briefs, the briefs will be available for each non-panel Judge to access.
Each non-panel Judge is expected to vote to concur, specially concur, concur in result only, concur in part and in result, dissent, or concur in part/dissent in part. Just like a panel Judge, each non-panel Judge may also write a separate opinion or ask that the case be considered by the Court’s en banc conference. Each non-panel Judge may also offer suggestions or modifications to the opinion-writer.
b. Separate Opinion
If a non-panel Judge indicates the intent to write a separate opinion, the Judge is expected to prepare a separate opinion promptly. When the separate opinion is finished, it is sent to the majority opinion-writer to allow for revisions in the original opinion. The writing Judges then finalize their opinions.
c. Re-circulation
The majority and separate opinions are then circulated to all Judges for a vote. If the majority does not change, the final opinions are ready to be handed down.
If the majority changes (flips), the author of the separate opinion becomes the opinion-writer and must promptly produce a majority opinion. The other Judge may then change their opinion to a separate opinion. The flipped opinions are again circulated for a final vote to determine the Court’s final opinion.
The circulation and recirculation of opinions are an effort to arrive at a final decision of the Court. Although it does not occur often, an opinion may be circulated three or more times, with three or more opinions.
If the Court’s vote is tied at five-five, the trial court is considered to be the tie breaking vote. On a tie vote, the Court’s decision is to affirm the trial court. The Supreme Court has no obligation to consider a case that resulted in a tie at the Court of Appeals, but this is certainly a reason that favors consideration of the case by the Supreme Court.
5. Hand Down
The Court of Appeals’ final decisions are released or “handed down” every Tuesday at 1:30 p.m. on the Court’s website.
D. Rehearing
A motion for rehearing may be filed within fourteen days of the decision. MRAP 40(a). The motion shall state with particularity the points of law or fact which the court has overlooked or misapprehended and shall contain such argument in support of the motion as movant desires to present. The motion should be used to call attention to specific errors of law or fact which the opinion is thought to contain; the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court.
A response to the motion for rehearing may be filed within seven days of the motion. The failure to file a response within this time period waives the right to respond but does not confess the arguments made in the motion.
There is no oral argument on a motion for rehearing. A party can only file one motion for rehearing.
A motion for rehearing must be filed before a party may petition the Supreme Court for certiorari review of the Court of Appeals decision.
A motion for rehearing is limited to the consideration of whether the Court (1) overlooked a material fact in the record or controlling authority that would require a different result, and (2) misapplied or erroneously construed controlling authority.
E. Certiorari
The Supreme Court may consider the appeal of a Court of Appeals decision on a writ of certiorari. The grant of certiorari is discretionary and requires the vote of at least four Supreme Court Justices. Certiorari is to be granted to resolve “substantial questions of law of general significance.” MRAP 17(a).
A petition for a writ of certiorari must be filed and served within fourteen days of the Court of Appeals’ decision on the motion for rehearing. The petition can have a maximum of ten pages and must state the “precise basis on which the party seeks review by the Supreme Court.” MRAP 17(b). A response may be filed within seven days.
The Supreme Court must decide whether to grant certiorari within ninety days of the response. MRAP 17(e).
Note: The second part of Judge Griffis’s paper is “How Opinions are Written and Circulated,” which will be posted soon.
How Cases are Decided at the COA, Part Three
May 16, 2014 § Leave a comment
Continuing with Presiding Judge Griffis’s paper …
3. Panel Consideration
a. Preparation
Before the panel conference, the assigned Judge is expected to have thoroughly reviewed the briefs, the record, the transcript and controlling legal authorities. The other panel Judges are expected to have reviewed the briefs, the record excerpts and controlling legal authorities. The record and the transcript are available to the other panel JUdges upon request.
A Judge may assign a law clerk to work on each case. A law clerk for the assigned Judge often prepares an initial draft opinion for review, checks the citations to the record or case authority, or researches various issues. Some Judges circulate draft opinions prior to the panel conference, while others may use a draft opinion to present the case to the panel conference.
b. Discussion
At the panel conference, the assigned Judge presents the case. The presentation includes a detailed discussion of the case’s procedural history, the facts, the issues in controversy, the standard of review, the relevant legal authorities, and a recommendation for the decision.
The other panel Judges may inquire about matters included in the record and may, of course, discuss the relevant facts and law. At the conclusion of the discussion, each JUdge is expected to say whether they agree with the recommendation and why or why not.
The purpose of the panel conference is to make an initial decision as to the ultimate ruling and decide who will write the first opinion to be circulated.
c. Opinion Preparation and Circulation
Once a panel decision is made, the panel makes a formal writing assignment. In most case, at least one other Judge will agree ith the recommendation of the assigned Judge. The assigned Judge will then be designated as the opinion-writer and is expected to prepare and circulate a draft opinion to the other panel Judges.
If the assigned Judge is not in the majority, the Chief Judge or Presiding Judge will assign an opinion-writer from the JUdges who are in the majority. The newly designated opinion-writer will then be expected to prepare and circulate a draft opinion to the other panel Judges.
A panel opinion is prepared and circulated to all panel Judges for a vote. The vote may be to concur, specially concur, concur in result only, concur in part in result, dissent, or concur in part/dissent in part. If a panel Judge’s decision is anything other than to concur, the Judge is expected to write a separate opinion to address the reasons that they do not concur with the panel opinion.
Each panel Judge may write a separate opinion or ask that the case may be considered by the Court’s en banc conference. Each panel Judge may also offer suggestions or modifications to the opinion-writer.
d. Separate Opinions
At any time during the panel conference or circulation of opinions, a panel Judge may indicate the intent to write a separate opinion. The Judge is then expected to prepare a separate opinion promptly. When the separate opinion is finished, it is sent to the original opinion-writer to allow for revisions. The writing judges then finalize their opinions.
e. Re-circulation
The majority and separate opinions are then circulated to the panel for a vote. If the majority does not change, the final panel opinions will then circulate to non-panel Judges. If the majority changes, the author of the separate opinion becomes the opinion-writer and must promptly produce a panel majority opinion. (This is commonly referred to as a “flipped” opinion.) The other Judge may then change their opinion to a separate opinion. The flipped opinions are again circulated for a final vote to determine the final panel opinion.
Next: Full Court Consideration Through Petition for Cert.
How Cases are Decided at the COA, Part Two
May 15, 2014 § 1 Comment
Continuing with COA Presiding Judge Griffis’s paper:
C. The Decision Process
1. Initial Assignment
A case is assigned to the Court of Appeals by a notice of assignment. The Clerk prepares the notice and sends a copy to the parties. The Clerk also provides the Court with a list of cases assigned.
The case assignment list identifies each case assigned and makes an initial writing assignment to a Judge. That assignment is based on a random assignment protocol. The protocol tries to balance the workload among the Judges.
The case assignment list is sent to each Judge. If a Judge decides to recuse, the case is reassigned on a random rotation.
After the case asssignment list is circulated, the Clerk’s office delivers the appellate materials to the assigned Judge’s chambers. The appellate materials include all of the copies of the briefs, the record excerpts, the record, the transcript, the exhibits, and the Clerk’s file. The assigned writing Judge then initiates the review of the case.
2. Panel Conference
a. Sittings
The Court divides its work into six “sittings.” A sitting is similar to a term of court. Each sitting lasts for two months.
During a sitting, the Judges are divided among three panels. A panel includes at least three Judges, assigned by the Chief Judge. The Chief Judge or a Presiding Judge presides over each panel. The panel assignments are not disclosed.
Each panel considers the cases assigned to the panel by the panel Judges. Before the sitting begins, each JUdge decides which of the cases assigned will be submitted to the panel. On average, each Judge assigns ten cases to each sitting. The assigned Judge delivers each panel Judge a ccopy of the briefs and record excerpts for each case. The assigned Judge retains the record, transcript and the clerk’s papers.
The Docket Calendar is a published list of the cases assigned to each sitting. The Docket Calendar is disclosed on the Court’s website at the beginning of each sitting.
b. Oral Argument
The panel decides whether to grant oral argument. The panel’s decision is final and is not subject to review. The Court Administrator notifies the counsel of record when an oral argument is set.
The assigned Judges will participate in the oral argument. Non-panel Judges do not attend the oral argument but often watch the internet broadcast.
The internet broadcast of Supreme Court and Court of Appeals oral arguments may be accessed through the “Oral Argument Webcast” link on the Court’s website — www.court.ms.gov.
Oral arguments take place in the Court’s main courtroom, located on the first floor of the Carroll Gartin Justice Building. The Court also regularly hears oral argument at other locations.
The “Court on the Road” program has held oral arguments at Mississippi State University, the University of Southern Mississippi, Mississippi College School of Law, and the University of Mississippi School of Law. The Court has also held arguments at Mississippi Valley State University, William Carey College, Jones County JUnior College, and the Lamar County Courthouse, to name a few. Requests for Court on the Road programs to be held in your area may be made to the Court Administrator.
c. Panel Conference Dates
The Chief or Presiding Judge coordinates with the other Judges on the panel to set the conference dates. At a panel conference, all panel Judges meet to discuss each case. The panel conference makes a preliminary decision on the case, establishes the writing assignment, and starts the clock on internal deadlines to produce an opinion.
The Chief or Presiding Judge ensures that each case moves forward to a decision and preparation of an opinion without unnecessary delay. The Chief or Presiding Judge sets the dates for panel conferences and presides over the discussion. Panel conferences are normally set weekly for the first five or six weeks of each sitting.
Next: From Panel consideration through Circulation of the Opinion
“Pay no Attention to That Man Behind the Curtain”: How Cases are Decided at the COA, Part One
May 14, 2014 § 5 Comments
Like the great and mighty Wizard of Oz, appellate judges wield immense power from on high, and their ways are shrouded in mystery.
COA Presiding Judge Kenny Griffis set out to de-mystify how the court goes about its business, and put the details in a paper he delivered to the judges’ meeting last Fall. I’ve gotten his permission to republish it here, for your benefit, verbatim. Due to the length, it will take several posts to get through.
Here’s Part One:
A Texas appellate judge once noted the perception “that appellate judges watch from on high the legal battle fought elow, and when the dust and smoke of battle clear they come down out of the hills and shoot the wounded.” Black v. State, 723 SW2d 674, 677, n.1 (Tex.Crim.App. 1986)(Opinion, P.J. dissenting). Lawyers hear this and laugh, nervously. Trial judges hear it and laugh out lud, some even shout “amen.”
More than one trial judge has told me that they do not understand how appellate courts decde cases. This article should help you understand how the Mississippi Court of Appeals decides a case and writes the opinion.
I. How a decision is made at the Court of Appeals
A. Background
The Court of Appeals was created in 1993 to address the heavy workload of the Supreme Court. The purpose of the Court is to reduce delays in the resolution of appeals.
The Court consists of ten judges elected from five designated Court of Appeals districts. The judges are elected from a district, but they exercise statewide authority. Judges serve eight year terms, and their elections are staggered. The Chief Judge is selected by the Chief Justice of the Mississippi Supreme Court and serves a four year term.
Of the current judges, five were initially elected, and five were initially appointed. The current judges have also served as: chancellors (2), circuit judge (1), county judge (1), municipal judge (2), justice court judge (1), prosecutor (3), and supreme court law clerk (2).
B. Jurisdiction
Every appeal is filed with the Mississippi Supreme Court. The Supreme Court then decides which cases to assign to the Court of Appeals. The Supreme Court may assign a caseto the Court of Appeals at any time. There is no limit on the time that a case may be assigned to the Court of Appeals.
The jurisdiction of the Court of Appeals is limited to cases that are “deflected” or assigned by the Supreme Court. The Court of Appeals is often considered an “error correction” court. The Supreme Court may not assign cases that involve: (1) the imposition of the death penalty; (2) utility rates; (3) annexations; (4) bond issues; (5) election contests; or (6) a statute held unconstitutional by the trial court.
Miss. Code Ann. §9-4-3(1). The Supreme Court must retain all cases involving attorney discipline, judicial performance, and certified questions from federal court.
MRP 16(d). The Supreme Court will also retain cases that involve: (1) a major question of first impression; (2) fundamental and urgent issues of broad public importance requiring prompt or ultimate determination by the Supreme Court; (3) substantial constitutional questions as to the validity of a statute, ordinance, court rule, or administrative rule or regulation; and (4) issues on which there is an inconsistency in the decisions of the Court of Appeals or the Supreme Court or conflict between the decisions of the two courts.
The Supreme Court has a process to decide which cases to assign to the Court of Appeals. The Supreme Court retains about one of every five cases that are eligible for assignment. The Supreme Court routinely assigns cases within certain clearly defined categories. For example, the Court of Appeals will be assigned all cases that involve workers’ compensation, domestic relations, post-conviction relief, and adminidtrative agency decisions.
THe decision to assign a case to the Court of Appeals is final. No motion to reconsider an assignment may be filed. Only the Supreme Court can change the assignment of a case, and this happens rarely. When it does, the assignment is changed because the case was assigned to the Court of Appeals in violation of section 9-4-3(1).
The decisions of the Court of Appeals are final. The Supreme Court may review the Court’s decisions only by writ of certiorari. MRAP 17. Certiorari may be granted upon the vote of at least four Supreme Court Justices. Miss. Code Ann. §9-4-3(2).
Next: The Decision Process from initial Assignment Through Oral Argument
POST-TRIAL MOTIONS: ROUND THREE
March 23, 2011 § 3 Comments
I’ve posted here about the necessity to file post-trial motions to preserve error in chancery court, and how the COA’s January 25, 2011, decision in Robinson v. Brown may have changed our traditional practice. Then the COA stayed the mandate and we awaited a new decision.
The new Robinson v. Brown opinion was issued yesterday, March 22, 2011, and in my judgment we are back exactly where we started: You’d better file those post-trial motions if you expect to raise an issue on appeal.
Although the new opinion actually addresses and analyzes the sufficiency of the chancellor’s findings, the court states at ¶ 23 that, “In this case, we likewise find the challenge of the chancellor’s findings in the instant case procedurally barred.” The two cases cited in support of the point are distinguishable both on their facts and their procedural posture, but no matter. The COA is determined to interpret MRCP 52(b) in its own way.
I have other fish to fry, so I don’t really have the time or energy to devote to breaking this down further. Besides, I am out of the appeal business. It’s lawyers like you who have to deal with this.
If the supreme court will take this case on cert and look closely at it, perhaps our supreme chancellor, Justice Pierce, will be afforded the opportunity to elucidate this for us. If I were still practicing law in chancery court I would certainly want the point clarified for the sake of my clients and my malpractice insurance premiums.
In the meantime, I stand by my earlier suggestion to file those post-trial motions raising every conceivable point possible that you may wish to raise on appeal. If you don’t you may find yourself “procedurally barred” in the COA.
THE LATEST ON ROBINSON V. BROWN
February 16, 2011 § 4 Comments
The COA case of Robinson v. Brown, handed down January 25, was the subject of a previous post in which I alerted chancery lawyers that the case appeared to change the law that post-trial motions were not required in chancery court to preserve error for appeal. I also pointed out that MRCP 52(b) specifically excepts non-jury trials from the post-trial motion requirement.
In the COA’s handdowns on February 15, this entry appeared:
EN BANC
2009-CA-01599-COA
Mary Elizabeth Brown Robinson v. Paul Arthur Brown
Lee Chancery Court; LC Case #: 02-0518(41)H; Ruling Date: 08/06/2009; Ruling Judge: John Hatcher; Disposition: The Court on its own motion stays the mandate and grants rehearing. Order entered.
Is the COA going to circle back to where we were pre-January 25? Stay tuned.
YOU’D BETTER FILE THOSE POST-TRIAL MOTIONS AFTER ALL
January 27, 2011 § 9 Comments
Back on November 16, 2010, I posted here that you don’t have to file a motion for a new trial in chancery non-jury trials to preserve error for an appeal. As I pointed out, it has never been the law in chancery court that such a motion was necessary, and MRCP 52(b) would appear to dispose of the issue. I do believe that was an accurate statement of the law in chancery court.
Until Tuesday, January 25, 2011.
On that date, the court of appeals handed down its decision in Robinson v. Brown, in which the appellant attempted to argue that it was error for the chancellor to assess her with child support because she claimed that he had failed to make the appropriate findings of fact. Justice Carlton’s opinion, to which there was no dissent, holds at ¶ 18 that the appellant:
” … failed to assert this alleged error post trial to the chancellor, and such failure waived her right to now complain as to this issue on appeal. Mississippi Rule of Civil Procedure 52 allows the court to amend its findings, or make additional findings, upon motion of a party filed not later than ten days after the entry of a judgment or entry of findings and conclusions of law. Watts v. State, 492 So.2d 1281, 1291 (Miss. 1986) (appellant was procedurally barred from raising an issue on appeal where he failed to raise it in his post-trial motion).”
The only case cited to support the point is a criminal case from circuit court, presumably from a jury trial.
The opinion does not mention MRCP 52(b), which specifically states:
When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.
Would that exact language not apply in this case since the appellant was complaining that the trial court’s ruling was not supported by sufficient evidence? And, as with nearly all chancery court cases, this was a case “tried by the court without a jury.”
The lone justice with chancery experience on the court of appeals, Justice Myers, is listed as “not participating.”
Practice Tip: For chancery practitioners, I believe that this decision means that from now on you had better file a post-trial motion in every case if you have any thought of an appeal, and you’d better list every error you think might be in the record.
For chancellors, this will mean an abundance more work, on top of the lengthy opinions we are required to write to pass scrutiny of the appellate courts.
There’s a lot I could say about this, but I guess I’d better not. If you want my views, drop by my office and we’ll talk.
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