January 5, 2012 § Leave a comment

I was concerned that, up until Tuesday, there was no mention of Judge Gene Fair’s invesiture, much less appointment, on the Supreme Court’s web site. My chancery-court paranoia kicked in, and I wondered whether this was some new specie of persecution for us on the equity side.

My fears (exagerrated for this post, I assure you) were allayed by an anonymous insider, who reassured me that the silence had more to do with the holiday schedule than with an agenda. Whew.

If you can make Judge Fair’s ceremony tomorrow, I encourage you to do so. I plan to be there. Here’s the announcement:

December 29, 2011

An investiture ceremony for Judge Eugene L. Fair Jr. of the Court of Appeals of the State of Mississippi is scheduled for 10 a.m. Friday, Jan. 6, 2012, at the Gartin Justice Building, 450 High Street in Jackson.

The investiture will be webcast on the State of Mississippi Judiciary web site, www.courts.ms.gov. Members of the bench, bar and the public are invited.

Gov. Haley Barbour appointed Judge Fair to the District 5, Place 1 seat on the Court of Appeals. Judge Fair will replace Judge William H. Myers, who is retiring Dec. 31. The appointment is for one year. A special election will be held in November 2012 in the Court of Appeals district which includes Forrest, George, Greene, Hancock, Harrison, Jackson, Lamar, Pearl River, Perry, Stone and parts of Wayne counties.

Judge Fair, 65, of Hattiesburg, said, “I’m both honored and humbled by the appointment of the Governor.”

Gov. Barbour, his Chief of Staff Paul A. Hurst III, and Supreme Court Chief Justice Bill Waller Jr. will speak at the investiture. Former Mississippi Bar President George R. Fair, Judge Fair’s brother, will speak and will introduce special guests. Court of Appeals Chief Judge L. Joseph Lee will preside over the investiture ceremony.

Senior U.S. District Judge William H. Barbour Jr. will administer the oath of office.

Judge Fair’s wife, Dr. Estella Galloway Fair, will assist with the enrobing. Rev. Dr. Stephen Ramp, Judge Fair’s pastor at Westminster Presbyterian Church in Hattiesburg, will give the invocation. Rev. Dr. John C. Dudley of Hattiesburg, Administrative Presbyter of the Presbytery of Mississippi and Judge Fair’s former pastor, will give the benediction.

Judge Fair served for five years as a chancellor on the 10th Chancery Court. The district includes Forrest, Lamar, Marion, Pearl River and Perry counties.

Former Supreme Court Chief Justice Neville Patterson appointed him to the Mississippi Ethics Commission in 1984. Fair served on the commission for 20 years, including 19 years as vice-chair. He was board attorney for the Pat Harrison Waterway District 1988-1992.

Judge Fair grew up in Louisville. He earned a Bachelor of Arts degree from the University of Mississippi and a law degree from the University of Mississippi School of Law. During college, he was editor of The Mississippian for two years, and wrote for the Mississippi Law Journal. He helped pay his way through college with freelance writing for newspapers. He began working as a newspaper stringer at age 15, calling in sports scores and writing obituaries. He did freelance work for the Clarion-Ledger, the now defunct Jackson Daily News, the Meridian Star, the Associated Press and United Press International. He called his work as a news reporter and photographer “wonderful preparation to be a lawyer.”

He helped screen and recommend lawyers to fill judicial vacancies as a member of Gov. William Winter’s Judicial Nominating Committee. A similar group, Gov. Barbour’s Judicial Appointments Advisory Committee, recommended Fair to fill the vacancy on the Court of Appeals.

Fair ran unsuccessfully for election to the Supreme Court in 1988, and for the Court of Appeals in 1994. The 1994 race was for Position 1, District 5, the same position to which he has been appointed. He said, “I have thought about it (serving on an appellate court) for a long time. My uncle was Supreme Court Justice Stokes V. Robertson Jr., and I was greatly influenced by his dedication and love of the law. My cousin Charles Fair, having the same characteristics, had a similar influence on me.” His grandfather, also named Stokes Robertson, served as the first member of the House of Representatives from Forrest County and as Clerk of the House for four years. He was also Revenue Agent of the state of Mississippi, a statewide elective office later renamed State Tax Collector and abolished when William Winter held the office. His great-grandfather, G. C. Robertson, was the last Justice of the Peace of District 2, Perry County, before the county was split to form Perry and Forrest counties.

He served for four years on active duty with the U.S. Navy Judge Advocate General’s Corps during the Vietnam War, attaining the rank of Lieutenant Commander, and spent five years as a reservist in the Jackson Naval J.A.G. Reserve Unit.

He practiced law in Hattiesburg from October 1972 to December 2006. During that time, he tried cases in 57 courthouses across the state. He was admitted to practice law in all state courts, the U.S. District Courts for the Northern and Southern Districts of Mississippi, the Fifth U.S. Circuit Court of Appeals, the Supreme Court of Texas and the U.S. Supreme Court.

He served on the Mississippi Supreme Court Committee on Technology in the Courts 1988-1990, and on the Judicial Advisory Study Committee Technology Consulting Group 1993-1994.

He served as treasurer, secretary, vice-president and president of both the Young Lawyers Section of the Mississippi Bar and the South Central Mississippi Bar Association.

He held numerous leadership positions in the Mississippi Bar. He is a former member of the Board of Bar Commissioners, and is a Fellow of the Mississippi Bar Foundation and a Charter Fellow of the Young Lawyers.

He is a trustee, elder and Sunday School teacher at Westminister Presbyterian Church.

He is a former chairman of deacons, and was church treasurer for 18 years.

He is an Eagle Scout.

He has two daughters and four grandchildren. Melissa Fair Wellons M.D. is assistant professor at the University of Alabama Birmingham (UAB) School of Medicine. Julia Fair Myrick is a screenwriter and producer in Pasadena, Calif.

The 10-member Court of Appeals of the State of Mississippi is the state’s second highest court. The Supreme Court assigns cases to the Court of Appeals, and has discretionary review of its decisions. The Legislature created the intermediate appellate court in 1993 to speed decisions and relieve a backlog of appeals. The Court of Appeals began hearing cases in 1995.


May 25, 2011 § 3 Comments

Governor Barbour appointed Circuit Judge Ermea “E.J.” Russell of Hinds County, effective May 23, 2011, to fill the unexpired term on the COA formerly held by Judge Leslie King, who was earlier elevated to the Mississippi Supreme Court.

Judge Russell, who was Hinds County’s first black, female Circuit Judge, is the COA’s first black, female judge.  She has been a member of the judiciary since her appointment by Governor Fordice in 1998.

The State Judiciary website press release on her swearing in is here.

The appointment continues the trend of excluding chancery judges from the appellate courts.


December 17, 2010 § Leave a comment

In the case of Reed and Daniels v. Fair, decided December 14, 2010, the court of appeals once again addressed the issue of the proper legal standard to apply when the unmarried parents of a child born out of wedlock face off over custody of the child.

Theresa Reed and Marvin Fair had a relationship that resulted in the birth of their son, M.T.F, in 1997. The parents never married each other, but Fair did acknowledge paternity. For most of the next twelve years, the child lived with his maternal grandmother, Irene Daniels. While in the grandmother’s care, M.T.F. was molested by another grandson.

Fair filed an action for custody, and Reed and Daniels counterclaimed in turn for custody. At trial, Reed and Daniels argued that, because of the length of time that M.T.F. was in Daniels’ care, the court should apply a modification standard. The chancellor found that, since there had never been a judgment awarding custody, it was not proper to apply a modification standard, and he adjudicated the case by application of the Albright factors. The chancellor awarded custody to Fair, and both Reed and Daniels appealed, complaining that the court should have analyzed the case as one for modification.

Justice Maxwell wrote the majority opinion, and it is such a concise exposition of the law on the subject that I have excerpted it here:

Generally, in an initial custody proceeding, the parties are “deemed on equal footing,” and custody is awarded based on the best interest of the child under the Albright factors. See Brown v. Crum, 30 So. 3d 1254, 1258 (Miss. App. 2010) (quoting Law v. Page, 618 So. 2d 96, 101 (Miss. 1993)).

But there are situations where certain legal presumptions prevent the parties from having an equal claim to custody. For example, the father of a child born out of wedlock would not stand on equal footing with the mother where the father does not acknowledge the child as his own. Hemphill-Weathers v. Farrish, 779 So. 2d 167, 172 (Miss. App. 2001). Absent other factors, all jurisdictions recognize that the mother of a child born out of wedlock, if a suitable person, possesses the primary right to the child’s custody where the father has not acknowledged the child. Smith v. Watson, 425 So. 2d 1030, 1033 (Miss. 1983), at 1033 (citing N. Hand, Jr., Mississippi Divorce, Alimony and Child Custody 271 (1981) (“upon acknowledging the child as his own, the father has an equal claim . . . to the parental and custodial rights of the child”).

While chancellors must also consider the Albright factors in modification proceedings, “the movant carries a heavier burden[.]” Romans v. Fulgham, 939 So. 2d 849, 852 (Miss. App. 2006). In a modification action, the party seeking custody must prove that since the original custody award, there has been a material change in circumstances adverse to the child, and a modification in custody would be in the child’s best interest. Tucker v. Tucker, 453 So. 2d 1294, 1297 (Miss. 1984).

In Law, the Mississippi supreme court held that “The ‘material changes’ standard used in modification proceedings is dependent on there being a prior determination of custody.” 618 So. 2d at 101. Relying on Law, the court of appeals has consistently held that where no previous custody determination has been made, the relevant standard is the child’s best interest under the Albright factors — not a “material change” modification standard. See Brown, 30 So. 3d 5 at 1258; , 990 So. 2d 774, 776 (Miss. App. 2008); Romans, 939 So. 2d at 853; C.W.L. v. R.A., 919 So. 2d 267, 271 (Miss. App. 2005); S.B. v. L.W., 793 So. 2d 656, 659 (Miss. App. 2001).

The court of appeals also rejected the theory that a modification standard applies by virtue of one parent’s receipt of child-support payments. Brown, 30 So. 3d at 1257-58; Romans, 939 So. 2d at 852.

The majority opinion rejected the appellants’ argument that because Fair had waited longer than parties in other court of appeals decisions to seek custody, that this case should be distinguished from the earlier decisions. The court refused to establish a “length of time” rule because (1) the resulting legal standard would likely be nebulous, and (2) no case law, including Mississippi supreme court precedent, supports hinging the applicable legal standard solely on the timeliness of the request for custody. See Romans, 939 So. 2d at 853. The majority declined to create a new rule or to overturn the established line of authority. Nonetheless, the opinion emphasized that its holding in no way prevents chancellors from considering the length of a parent’s delay in asserting a claim for custody when determining the best interest of the child. See Brown, 30 So. 3d at 1259 (“Although delay in asserting custody may be a factor to be considered in determining the best interest of the child, it is not the controlling factor.”).

So the state of the law at this point is that a father who acknowledged an out-of-wedlock child as his own stands on an equal footing with the natural mother in a custody determination, which will be treated as an original proceeding, and not as a modification.

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