Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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Jackson Jambalaya has the video of the hearing before Hinds County Circuit Judge Tommie Green over Attorney General Jim Hood's helping get the pardon recipients out of jail attempt to block the release of convicts who Gov. Barbour pardoned. I must confess, I didn't watch it. I've never been much on pre-season games. I view the Circuit Court fight as a pre-season skirmish before the Supreme Court decides the issue. 

Procedurally, this reminds me of when Judge Malcolm Harrison had to decide the case that challenged the personhood initiative. Everyone knew that the case involved constitutional issues that the Supreme Court would have to decide. Everyone except the Supreme Court that is. In hindsight, the Supreme Court deciding to not decide was sheer brilliance. But my point is that whatever Judge Harrison ruled, the Supreme Court would have final say. The same appears to apply to Judge Green's decision regarding the Barbour pardons.

One argument being made to uphold the pardons is that the Governor's decision on pardons are final and not subject to review. Cottonmouth was the first site that I saw raise this issue in this post. Anderson cited a dissent from a 1921 Mississippi Supreme Court case that stated that a Governor's decision regarding whether publication was made is not open to judicial review. So far I'm not getting this argument.

The same Mississippi Constitution provision that creates the Governor's right to pardon requires publication before the issuance of the pardon. I don't see where the Constitution grants to Governor the right to pick and choose which provisions have to be followed. Perhaps the Governor does have that right with respect to pardons. But I want to hear it from the Supreme Court before I'm buying it. Or at least get a better justification than I've read so far.  

Finally, I'm against what I perceive to be knee-jerk reaction to Barbour's pardons that the pardon laws should be changed. Getting past the issue of whether that can be done without an amendment to the Constitution, I'm not in favor of throwing out the baby with the bathwater. There are situations where pardons are appropriate and just. I don't want to take away the power to grant the “good” pardons because people don't like how Gov. Barbour exercised that power. People who don't agree with the pardons should be mad at Gov. Barbour—not the law.   

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A great thing about having a blog is that you get to comment on current events. But an active law practice often prevents a blawger from commenting about current events when they happen. That has been the case as the story has unfolded over the last few days involving the approximately 200 pardons that Gov. Barbour granted this week on his way out of office. Since I haven't been able to write a blog post since Monday (many posts are written days in advance of posting), much of what I could say has already been said.

As in many areas, blogs are covering the issue more thoroughly than the main stream press. Among the blogs that I read regularly, NMC, Jackson Jambalaya, Anderson and Cottonmouth have all made significant contributions on the story. The public's revulsion over the pardons is captured on the Victims of Mississippi Pardons Facebook Page. 

Even Frank Corder with the pro-Republican site Ya'll Politics criticized the pardons in this post. I don't agree with everthing in Corder's post, but I agree with most of it. Corder notes that even for Republicans, the way Gov. Barbour handled the pardons was bad policy and bad politics.

In particular, this point by Corder is close to exactly what I planned to blog about the fiasco, if Corder hadn't stated it so well before me:

Barbour’s actions and communication strategy spoke of a political tone-deafness that is uncharacteristic for him. Looking at it truthfully, Barbour would not in a million years have made these pardons en masse were he a presidential candidate at this moment. It just would not have happened.

So, why he does it now is truly a headscratcher. It’s situational politics and for someone who prides himself on his principles, it will leave a small but noticeable mark in his history.

Not only would Barbour not have done this if he were a presidential candidate, this indicates that Barbour has written off Vice President or serving on the cabinet of a Republican presidential administration—both of which were still the subject of at least some speculation. This was not the move of someone who views a return to the public sector as a possibility. It creates way too much heat.  

This is an unbelievable WTF moment for Barbour. Despite the fact that I often disagreed with Barbour, he always looked smart and politically savvy to me. And I appreciated his candor, even when I didn't like what he was saying. I never imagined that Barbour would do something so unwise, while simultaneously handling it so poorly. It is—as Corder says—truly a head-scratcher.    

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There has been a lot of press lately about Mississippi's Public Employees Retirement System (PERS) and the stability of the program. Governor Barbour appointed a special commission to study the system. Here is a recent Clarion-Ledger article on the topic.

Much of the focus—and pretty much all of the Clarion-Ledger's focus—has been on the future stability of the “13th check”, which provides an extra check at the end of the year for a cost of living increase in retirement benefits.

Ted Carter with the Mississippi Business Journal's report on the issue focused on the question of whether the PERS assumed rate of investment return is sustainable. I believe that Carter's focus is correct and the investment return issue is the 600–pound gorilla with PERS—not the 13th check. MBJ's article states:  

The study commission has hired GRS Actuarial and Consulting Services of Southfield, Mich., to help with the panel’s audit recommendations and other proposals.

Schloegel said GRS and the panel will scrutinize PERS projections that the system can maintain returns of 8 percent on investments. “We want to know whether that needs to be looked at and challenged,” he said.

Tim Medley, a speaker and principal of Jackson financial advisory firm Medley & Brown, said 8 percent is “ambitious.”

The PERS Trust, the system’s policy board, should have more investment specialists serving on it and PERS itself should have at least “10” investment analysts rather than the single one it now has, Medley said.

Medley was being nice calling the 8% investment assumption ambitious. A more appropriate term would involve profanity, so I'll call it hog-wash.

Presumably, money paid into PERS by participants is invested in a combination of stocks and bonds. Care to take a guess on the average return of the S&P 500 for January 1, 2000 through December 31, 2010? 2.4%. In fact, the S&P today is at 1162, a level hit first it in 1998. Think about that. $1,000 invested in an S&P index fund in 1998 is now worth....$1,000.  

Stock market returns are fueled by economic growth. If the economy is growing at all—which is up for debate—it's not by much. And experts predict anemic economic growth could be with us for another decade as we recover from the 2008 financial crisis.

What about bonds? The Vanguard Total Bond Market ETF currently yields 3.2%. That number is not going up unless interest rates rise. But the Fed just committed to another 2 years of interest rates close to zero. You simply can't find consistent returns of 8% in this market. Historical returns are just that--historical.

How big of an impact does this have on the PERS system? Here is an example. A $1 million account earning 8% for 11 years will grow to $2,331,639. But if the account earns 2.4%, the total after 11 years is only $1,298,074. That's a difference of $1,033,565. I used the calculator at this website to reach these figures.

What's the bottom line? PERS is not sustainable at current levels unless there is a dramatic rise in interest rates or a huge turn around in the economy. Personally, I don't see either happening in the foreseeable future.

That means Mississippi would have to make up the short-fall by allocating money from the State budget to PERS or cutting benefits. Most likely, there will be a combination of both. This should scare state employees, including those in working in the the judicial system.  

But don't blame Governor Barbour or the special commission chair George Schloegel, Mayor of Gulfport. Barbour should get credit for not sticking his head on the sand on this issue and Schloegel is a good choice to chair the commission. Schloegel is the former president of Hancock Bank, which did not have to take TARP bailout money from the government in the 2008 financial crisis. By comparison, Trustmark took $215 million and paid it back. Regions took $3.5 billion and hasn't paid it back.     

Mississippi's pre-paid college tuition program has a similar problem, as I discussed in this post.  

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A definition of 'propaganda' is “information, especially of a biased or misleading nature, used to promote or publicize a particular cause or point of view.” Last week's Madison County Journal's editorial supporting tort reform damages caps meets this definition. 

Here are some of the gems from the editorial followed by my explanations:

Since tort reform, medical liability insurance premiums have decreased more than 60 percent.

Since tort reform, there has also been a severe recession with record unemployment that was caused by some of the business interests who campaigned for tort reform. But we gave those companies a taxpayer funded bailout and let them return to business as usual.

Also, medical liability insurance premiums decreasing by 60% wasn't caused by damages caps. It was caused by the Mississippi Supreme Court's eliminating Mississippi's mass-joinder law that allowed thousands of plaintiffs to be joined in a single suit.

By removing the incentive of extreme verdicts with exorbitant attorney's fees, Mississippi no longer attracts thousands of out-of-state plaintiffs clogging our judicial system.

Once again, the paper is crediting tort reform for something caused by the Supreme Court's elimination of mass-joinder.

Incidentally, I have never once seen an actual lawyer quoted as saying that caps are responsible for eliminating out-of-state plaintiffs as opposed to rulings by the Miss. Supreme Court. So where is the Journal getting its information? Haley Barbour press releases?

 And when we wonder why all too often the judiciary did not throw out frivolous lawsuits and sanction attorneys for filing them, we simply think back to the words of Dickie Scruggs when he said "the judiciary is elected with verdict money."

The reference to Scruggs doesn't really fit the editorial. But Scruggs was a plaintiff lawyer who went to jail, so they needed to work him into the piece.

Mississippi can't afford a return to "jackpot justice."

How exactly would throwing out the caps return Mississippi to the jackpot justice days? They don't say. They just trust that ole Haley wouldn't steer them in the wrong direction on this.

The fact of the matter is that lifting the caps would not return Mississippi to the jackpot justice days. Those problems were caused by the mass-joinder law, venue law that no longer applies, Mississippi law that required defendants to post a bond of 125% of a judgment in order to appeal and less than 5 state trial court judges who were not doing their jobs. None of these problems exist anymore and none were affected by caps.

How do I know I'm right on this? First, have you ever noticed that none of these pro-tort reform articles ever quote a lawyer or legal expert such as a law school professor? Not even defense lawyers who campaigned for tort reform. Ever wondered why? Go back to the definition of propaganda and think about it. 

Second, since med-mal caps were passed in 2002 and non-economic caps in other cases were passed in 2004 there has not been a single case where the Mississippi Supreme Court had to rule on the constitutionality of the caps. That tells you how few and far between are cases where the caps actually apply.

Tort reform proponents ignore the fact that both the trial court and the appellate court can reduce damages awards that are out of line based on the facts of the case. In the last seven years the Mississippi Supreme Court has reversed most plaintiff verdicts, regardless of the verdict's size. The Court has affirmed some plaintiff verdicts since Alex Alston wrote his article a few years ago pointing out this fact. But plenty of verdicts are still being reversed.

I don't know what the Supreme Court will do with the caps issue. But I do know that there are smart justices on the Court. I'm sure they know that tort reform honks are taking the credit for eliminating jackpot justice that should go to the Court. So whoever the pro-tort reformers are trying to fool, it's not fooling the nine justices who will actually decide the issue.  

Here are my prior posts on tort reform.

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Governor Haley Barbour pulled out of the 2012 presidential race on Monday. Technically, Barbour withdrew before entering the race. The reality is that he has been running since the Fall and is the first serious candidate to withdraw from the race.

There is little speculation in the Mississippi papers as to why Barbour withdrew. That clears the deck for a wing-nut legal blogger to speculate away. From the outfield seats, here's why it looks like Barbour pulled out.

1. Barbour's campaign was not getting any traction.

An article in today's Wall Street Journal made this point:

Richard Quinn, a South Carolina political strategist advising the political action committee of former Utah Gov. Jon Huntsman, another possible entrant to the race, said Mr. Barbour's was struggling in the state, and that his decision underscores Republican voters' dissatisfaction with the current crop of candidates.

Mr. Barbour has spent weeks meeting voters in New Hampshire, Iowa and South Carolina. But his would-be candidacy was not getting any lift in the polls. Hewas seventh in a poll of likely GOP voters in South Carolina released Monday by American Research Group, with support from 2% of those polled.

Without support in a southern state such as South Carolina, there appeared to be no road to the nomination for Mr. Barbour, who would have been pitted against Midwesterners such as former Minnesota Gov. Tim Pawlenty and Minnesota Rep. Michele Bachmann in Iowa and against Mitt Romney, a former Massachusetts governor, in neighboring New Hampshire.

    2.    Health Issues.

Barbour is 63 years old and had back surgery last week. It's possible that he did not believe that he was physically up to campaigning for the next 18 months. There is no shame there if that is the case. I don't see how presidential candidates do it. And John McCain is an exception. McCain is a former POW who could probably eat nails. Barbour is a mere mortal like the rest of us.

    3.     Obama Will Probably Win Re-election.

The question of whether President Obama will win re-election is a fluid issue. Last Fall I would have said no. Now, it looks like he will win re-election. Does Haley Barbour really want to campaign for 18 months to suffer a Bob Dole-like loss? Probably not.

   4.     The Nut-job Factor.

There is a nut-job factor in the Republican nomination process that I believe works against Haley Barbour. Speculation in the national media is that Republicans who want to get the nomination will have to pander to the large base of nut-job Republicans. Like the birthers. To his credit, I can't see Governor Barbour going on TV and trying to look as dumb as possible on some issues so he will play better with the nut-job crowd.

Conclusion

I am a little sad that it's already over for Mississippi's first serious presidential candidate. Who knows when we will have anyone else who is even in the discussion.

Barbour is a force who is respected by allies and opponents alike. As one person once told me: “I may not like what Haley Barbour tells me he is going to do, but at least he is not going to say one thing to my face and then go do the opposite.”

It will be very interesting to see what Governor Barbour does when his term expires in January. No doubt he will be on the campaign trail in 2012 beating the drum for Republican candidates and accumulating IOU's.  

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As Governor Haley Barbour continues his nation-wide pre-announcement presidential campaign, he is starting to look like one of the GOP front-runners. If not the GOP front-runner.

A couple of weeks ago conservative columnist George Will pegged Barbour as one of only 5 real Republican contenders:

  Let us not mince words. There are at most five plausible Republican presidents on the horizon - Indiana Gov. Mitch Daniels, Mississippi Gov. Haley Barbour, former Utah governor and departing ambassador to China Jon Huntsman, former Massachusetts governor Romney and former Minnesota governor Tim Pawlenty.

Meanwhile, with Japan fighting off a full-scale nuclear meltdown, nut-job outspoken “conservative” columnist Ann Coulter espouses the benefits of radiation. But back to Haley.

The national press is treating Barbour like the frontrunner. The Clarion-Ledger had a front page story today about a Texas businessman's large donation to Barbour's PAC. The reporter who wrote the story is with the Nashville paper.

Today's Wall Street Journal had an article discussing GOP contenders' split on military budget cuts.  One contender got their photo in the article. Guess who?

Barbour breaks ranks with some Republicans by saying that spending cuts should include cuts to the nation's military:

Mississippi Gov. Haley Barbour this week told an audience in Iowa that any effort to balance the federal budget must include cuts in defense spending.

"We can save money at the Pentagon," Mr. Barbour told a group of about 200 GOP activists in Davenport. "If we Republicans don't propose saving money on defense, we lose credibility."

Barbour's take on defense spending is spot on. In order to meaningfully reduce spending, the U.S. will have to cut spending on the military, Social Security and Medicare. Everyone in Washington knows it. Many Republicans are afraid to admit it, since its a triple crown of bad news for the Republican base. 

Companies that benefit from defense spending fill campaign coffers. In states like Mississippi many Republican voters want less government spending, but not cuts of their own Social Security and Medicare benefits. Spending cuts without cutting military and entiltlement spending is like a diet where you get to eat all you want. It may be what you want to hear, but it isn't going work. Barbour gets points for not sticking his head in the sand on this issue.

The national media is learning what political observers in Mississippi and Republican insiders have known for a long time. Barbour is smart and he's for real. So is he going to win? Who knows. He may not even officially enter the race. But right now he's campaigning and looking like a contender.  

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Governor Barbour's appointment yesterday of Court of Appeals Chief Judge Leslie King to replace Justice James Graves on the Supreme Court was anticlimactic. It's a bit like hiring an assistant coach on your current staff to replace your head football coach. It may be the best move, but it's not very exciting for the fan base.

Many people predicted King would get the position from the day that President Obama appointed Justice Graves to the 5^th Circuit Court of Appeals. Gov. Barbour admitted that King was the only candidate who he considered. It is a safe pick and a smart pick.

So who does Barbour appoint to replace King on the Court of Appeals? This is more interesting because there is no one obvious candidate. The people who always predicted King would get promoted to the Supreme Court believe that Barbour will appoint a current African-American state court judge. But there are four judges in Hinds County alone who fit this profile even if you only consider circuit and chancery judges. And the district is much bigger than just Hinds County.

Judge Denise Owens is a name I hear a lot and would be a popular choice. But unlike with the Supreme Court position, Barbour promises to run this pick through his judicial advisory committee. That would seem to make it a more wide open race. And a more interesting appointment from the fans' point of view.

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With the U.S. Senate approving Justice James Graves' appointment to the 5^th Circuit Court of Appeals on Monday, attention turns to who Governor Barbour will appoint to replace Graves on the Miss. Supreme Court. I posted on this issue in this post last June. I've had lines in the water for weeks on this issue and do not really have any fresh information on this topic.  

Speculation in Jackson legal circles continues to center on Barbour appointing Graves' replacement from the Mississippi Court of Appeals. Under this theory Barbour will appoint Court of Appeals Chief Judge Leslie King to the Supreme Court, a sitting trial judge to the Court of Appeals and an attorney to replace the trial judge. Hinds County Chancery Judge Denise Owens is a name that I hear as the favorite to replace King on the Court of Appeals if it this happens. Others speculate that Owens could replace Graves on the Supreme Court.

I've gotten mixed signals on the possibility of Jackson attorney La'Verne Edney getting the Supreme Court appointment. I've heard that she does not want the position. And I've heard that she is campaigning for the job. So I've got no idea.

One interesting scenario would be for Barbour to appoint former Hinds County Circuit Judge Malcolm Harrison to one of the available positions. Word on the street is that Barbour was upset with Judge Bill Gowan for running against—and unseating Harrison. Appointing Harrison to another slot would at least put Harrison back into public service.

With Barbour still in the 2012 Presidential race, expect the position to go to an African-American. If Barbour appoints a white person to the Supreme Court, then he's not running for President.

At this point, I have no prediction on what's going to happen here. Let me know if you've heard any interesting rumors on the Supreme Court seat. If requested, I do not reveal the identity of sources. 

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It's funny how stories on Gov. Barbour's foot-in-mouth statement about the white supremacy Citizens Council include statements that “liberal” blogs have cried the loudest. Technically, this may be true. But it's not the whole story.

Non-conservative bloggers are more apt to publicly criticize a Republican presidential candidate's stupid remarks. But don't believe for a second that other Republican presidential candidates are not sharpening their knives to stab Barbour in the back over the statement.

Raising money has as much to do with getting elected president as anything. It doesn't matter how great of a candidate you are. If you can't raise money, then you can't win.

Primary candidates are often forced out of the election because they run out of money. At this point in Barbour's candidacy, garnering support within Republican ranks—primarily by raising money—is the most important measure of his candidacy. It dwarfs anything that liberals are saying about Barbour.

So the immediate problem with Barbour's statement is that it gives something for Romney, Huckabee, Palin, etc. to attack Barbour on behind the scenes in Republican circles. Statements to big-money Republicans like: “give your money to me. Barbour can't win because of his statements about race” are the immediate threat to Barbour.

If Barbour gets the Republican nomination, then Democrats will revive his Citizens Council comment. But at this point, Democrats are the least of his concerns. Those Republicans with smiles on their faces and knives behind their backs are the threat to Barbour.        

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I'm stunned by Gov. Haley Barbour's recent comments defending the Citizens Council. Here is the Clarion-Ledger article on the story. Tom Freeland has excellent posts about it here and here.

Here is what Barbour said:

You heard of the Citizens Councils? Up north they think it was like the KKK," Barbour said. "Where I come from it was an organization of town leaders. In Yazoo City they passed a resolution that said anybody who started a chapter of the Klan would get their ass run out of town. If you had a job, you'd lose it. If you had a store, they'd see nobody shopped there. We didn't have a problem with the Klan in Yazoo City."

The Clarion-Ledger article provides an accurate description of the Citizen's Council:

The white Citizens Council was "the uptown KKK," Dittmer said, citing the former Delta Democrat Times editor Hodding Carter. Bankers and businessmen were members, Dittmer said.

"They had the power. They didn't have to go kill people to keep from desegregating the schools. They could get them fired from their jobs," Dittmer said.

The Citizens Council and the Klan had the same goals. The Citizens Council was not ok because—unlike the Klan—it didn't get its hands dirty. The Citizens Council was just as nefarious as the Klan and would have had more influence than the Klan on things like preventing the integration of Ole Miss.

For more on the integration of Ole Miss, read Charles Eagles' book The Price of Defiance, which I reviewed here. In my review I stated:

But by 1960 white supremacy was probably more about power and money than racist ideals. Thinking whites had to know that once African-Americans could vote and had equal access to education that whites would lose their monopoly on political offices and patronage. Putting it bluntly, a bunch of dumb rednecks were going to be out of a job. Plus, the "help" might balk at continuing to work for slave wages.

That's where the Citizens Council came in. They were the thinking whites who thought that they could quietly do what the Klan did, without the violence and blood. But make no mistake about it, the purose of the Citizens Council was to maintain white supremacy.

If I had to guess, it would be that Gov. Barbour is ignorant on the Citizens Council. That's not unusual. A lot of people do not know much about our state's history.

But his comment that glorifies the Citizens Council like the movie Birth of a Nation romanticized the Klan? OMG. That's just inexcusably stupid.

I thought—apparently incorrectly—that Barbour was smarter than this. Statements like this place one foot over the edge of a political cliff and the other foot on a banana peel. Think Trent Lott at Strom Thurmond's birthday party.

The Governor needs a governor on his mouth. He needs someone—and it needs to be someone under the age of 45 who knows a little history–-to follow him around and make sure he doesn't make old-white-guy dumb-ass comments like this.

I don't know if Barbour's presidential aspirations can survive this. Seriously. It may be over before it got off the ground.

But I do know that Barbour's presidential aspirations cannot survive any more of this. He simply cannot be the stereotype of an old white guy who romanticizes white supremacy because it was the way of life when he was a boy and it seemed great to him at the time. He's got to be smarter than that.  

Otherwise, we'll get comments like this:

You heard of slavery? Up north they think it was bad. Where I come from it was an institution that provided jobs to African-American immigrants. We didn't have a problem with slavery in Yazoo City. The slaves were happy to have the job. Heck, Granny Barbour even said that slaves sang in the fields.

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On the heels of my post this week predicting a February 10 Presidential bid announcement for Governor Haley Barbour, the Wall Street Journal ran an article today that exposes my analysis as poor.

The Journal article points out that early contests have been pushed back from January to February of 2012:

The first four nominating contests—in Iowa, New Hampshire, South Carolina and Nevada—have been pushed to February 2012, a month later than in 2008. But potentially more significant was the Republican National Committee's August ruling that any primaries the following month—including those in the normally pivotal Super Tuesday cluster—can't be winner-take-all. Instead, those states will have to award their delegates proportionally to the candidates' vote share, which could make it harder for one candidate to rack up large totals early in the campaign.

Haley Barbour is mentioned in the article with speculation that he wants to wait until the 2011 Mississippi Legislative Session is over before announcing.

I don't expect Barbour to be the last into the field where he would have to come from the back of the field as far as organization.

Once any of the Republicans announce that they are in the race, it could be a stampede to get in by the rest. I will be surprised if that happens later than March or early April.

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With most people now recognizing that Haley Barbour is running for President in 2012, speculation turns to when he will announce that he is running. Look for the announcement around February 10, 2011.

How do I know this? I looked at when people announced in 2007 for the 2008 race. Here is when major candidates announced:

• Edwards: Dec. 26, 2006
• Dodd: Jan. 11, 2007
• Clinton: Jan. 20
• Biden: Jan. 31
• Huckabee: Jan. 28
• Obama: Feb. 10
• Romney: Feb. 13
• Giuliani: Feb. 15
• McCain: Feb. 28

They have a name for candidates who screw around, get coy and "test the waters": Fred Thompson. Thompson waited all the way until Sept. 5 to announce. Don't look for anyone to make that mistake again.

So for Barbour (and other serious candidates) it could be as early as mid-January ,or as late as the end of February. A good guess is in between. Feb. 10 seems like a good a date as any, since it worked for Obama. At least that's how I see it.

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Incumbents--many unopposed--were the big winners in Tuesday's judicial elections in Mississippi. The best site I found for vote totals in all the races was on the Northeast Mississippi Daily Journal's website.

Judge Donna Barnes defeated challenger Kelly Mims for the Court of Appeals. Mims ran a hard race, but voters did not have much of a reason to vote Barnes out of office.

In local judge races, Jeff Weill won Swan Yerger's seat on the Hinds County Circuit Court with over 60% of the vote. Whoever Governor Barbour appoints to replace Justice James Graves on the Mississippi Supreme Court should fear Weill. I believe that Weill can beat anyone else who runs for the seat.

Bill Gowan defeated Malcolm Harrison by 700 votes for the other contested Hinds County Circuit Court seat. Gowan won on the strength of a bunch of Malcolm McMillan TV commercials. Harrison had been appointed to the position by Governor Haley Barbour. Rain on Tuesday may have been the deciding factor in Gowan's win.

On the Coast, Gulfport native Jennifer Schloegel beat four other candidates to win the Chancery Judge seat being vacated by Margaret Alfonso, who won a county court judge seat. Schloegel, her husband Mark, and both their families are well known and popular on the Coast. Schloegel's father-in-law is mayor of Gulfport.

Like Weill, Schloegel probably could also win an election for the Court of Appeals or Supreme Court. She would also be a candidate for an appointment to replace Justice Mike Randolph on the Mississippi Supreme Court if he ever acts on rumors that he is interested in running for state wide office.

There will be an interesting runoff between Melvin Priester and Brent Southern for Hinds County County Court judge. Priester got over 5,000 more votes than Southern. But Southern will pick up all Frank Farmer's supporters and a lot of Trent Walker's in the runoff. I expect the runoff to be close and would not be surprised to see Southern win based on better voter turnout by his supporters.

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Book it. He's running.

Ya'll Politics reports on the latest announcement that Governor Barbour hasn't decided whether to run for president in 2012. Let me translate the political-speak.

What he said:

I'm not giving serious thought to running for president until after the November election,” Barbour said at a breakfast sponsored by The Christian Science Monitor.

What he meant:

Of course I'm running. Why do you have to ask? Are you stupid? What do you think I'm doing up this early speaking at this breakfast? I've been running for a good year. By "serious thought" I mean leaking it to the press and making a formal announcement. That will come after the November elections when the Democrats get killed due to the economy.

Can Haley win:

Yes. No question. The 2012 presidential election will be decided based on what voters think of Obama and the economy. Whoever gets the Republican nomination can win, with the possible exception of Palin. But I don't think she will get the nomination.

Getting the nomination is a crap shoot. But Haley has a good a chance as anyone. I would not bet against him.

I also disagree that Haley is positioning himself for the vice-president slot. Since when does Haley want to play second fiddle? Vice-president would be a consolation prize.

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Today's Wall Street Journal contained an article on plans that states have to recover oil spill related losses from BP. Mississippi Attorney General Jim Hood seems to have a handle on the scope of the possible litigation:

Mississippi Attorney General Jim Hood has sought advice from state university researchers, economists and lawyers to assess the environmental and economic damage the spill has caused to the state.

Mr. Hood said the process could take three or more years before he could present BP with the final bill because the issues aren't straightforward. For instance, hotel capacity along the coast may be similar to last year's but rooms now are occupied by clean-up workers instead of money-spending tourists.

Mississippi has already received $25 million from BP to pay for costs from the spill and another $25 million for its local governments that are grappling with an array of economic issues brought on by the slick that has washed ashore.

"We're first going to ask BP to pay what we can come up with and hopefully we can negotiate with them," Mr. Hood said. "But I'm losing faith quickly."

His advance planning includes strategies for a lawsuit against BP in state court. "I certainly don't want to be thrown into the mix with thousands of other claims" in federal courts, Mr. Hood said.

General Hood: (1) is consulting experts to assist in quantifying damages; (2) has a realistic estimate on the length of the impact (3 or more years); (3) is trying to first resolve the issue through negotiation; and (4) is planning litigation strategy in the event that negotiations with BP fail.

Hood's handling of the situation looks very good. And much better that Governor Barbour's, whose failure to publicly recognize the scope of the disaster is facing growing criticism. 

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 With Governor Haley Barbour downplaying the signficance of the oil spill, MLR located this rare video footage of Barbour from his college days (play video):

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Governor Haley Barbour plans to sue to bolster his presidential aspirations challenge the constitutionality of the new health-care reform. He’s going to have to take a number and get in line.

As reported by the Clarion-Ledger, State Senator and attorney Chris McDaniel (R) and Hattiesburg attorney Doug Lee beat Barbour to the punch on Friday by filing this Class Action Complaint in federal court in Hattiesburg seeking to have the bill declared unconstitutional. Plaintiff Richard Conrad and McDaniel explained the action to the C-L:

"To be an American citizen and be forced to do anything is kind of contrary to our nature," Conrad said. "If I understand the constitution correctly, we've never been made to purchase or buy a product or service from a private entity."

The plaintiffs say they oppose a mandate, effective in 2014, that would require citizens to purchase health-care insurance or pay a fine.

"Basically, the petitioners are seeking a declaration that the Health Care Act's individual mandate requiring them to purchase health insurance from an insurance company is a violation of congressional authority under the Commerce Clause of the United States Constitution," McDaniel said.

McDaniel said the Commerce Clause gives Congress the authority to regulate commerce but does not give it unlimited power.

I don’t know about you Gregg, but I’m not going to sit here while they bad-mouth the United States of America. Gentlemen.

McDaniel’s Complaint is a hefty twenty-eight pages in length and cites a lot of cases. It’s kind of dry, so you might want to start it with a full cup of coffee. Drafting a twenty-eight page complaint is not easy, so someone put some work into it or one similar.

I am not really getting why Mississippi needs to file a lawsuit over the bill. Fourteen states already filed a lawsuit and McDaniel and Lee are taking a shot at the bill for Mississippians. I’m not sure what there is to be gained from a Barbour led action, other than political capital and attorney’s fees for the outside counsel lucky enough to get hired by Barbour. 

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To be honest, I did not closely follow the debate over health care reform. It seemed to me like most articles and broadcast media stories focused on all the name calling by politicians and their supporters rather than the content of the legislation. But now that its passed and newspapers have been printing the actual new provisions, it looks pretty good to me.

But I hate the current state of politics in the United States. It’s so divisive and there is so little respect shown between Democrats and Republicans. Our nation’s leaders should be setting a good example of how our government works, not screaming “liar” and “baby killer” from the floor of the House of Representatives. 

And it seems that the current slate of partisan “news” shows are part of the problem. When the Rush Limbaughs, Glenn Becks and Keith Olbermanns (to a lesser extent) of the media get so worked up at people who disagree with their view, it sends the message to Americans that they should also attack people who disagree with their view.

Reasonable people can disagree about health care and other political issues. The fact that someone disagrees with me does not mean that they are a socialist, fascist, idiot, etc…. But that seems to be how many Americans think. And they are being led there by the politicians and the news media that covers them.

The whole scene makes me want to tune out of political debates altogether. I suspect that many other people feel the same way.

As soon as the health care reform passed, Governor Barbour and politicians in many other states announced plans to sue the federal government to try to have the new law held unconstitutional. At least least they didn’t announce plans to secede from the Union.

Will Bardwell and Tom Freeland have commented on the prospects of these lawsuits. I don’t understand how Congress can enact social security, Medicare and a national income tax, but not health care legislation. But I don’t have a problem with the filing of lawsuits. Sure they appear designed to ingratiate certain politicians with potential voters, as opposed to legitimate legal disputes. And why aren’t the same politicians suing to do away with social security and Medicare? I mean, can we really afford them? Of course, it would be political suicide to challenge them.  

The judicial system is in place to resolve disputes and if anyone wants to challenge a law, that is the place to do it. So good luck with the lawsuits. The suits will probably lose and the American people could turn on those who file them if they decide that they actually like green eggs and ham, but I’m sure that they have thought about that. 

But in the meantime, as Rodney King said: “can’t we all just get along?”   

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On Friday a unanimous Mississippi Supreme Court entered this Order that prevents Governor Barbour from further reducing judicial appropriations as part of budget cuts caused by dismal revenue collections by the State. Since Friday I’ve eagerly awaited the Governor’s response, which came today in a meeting between Governor Barbour and the Clarion-Ledger’s editorial board [who knew they still had one?]:

  "It's not the way I read that statute," Barbour said, "but there's no use appealing it to the Supreme Court, would be my view."

At least the Governor has kept his sense of humor during the budget crisis.

As far as the Supreme Court’s Order, I side with the Court. That should not be surprising, since I work in the judicial arena. If the Governor can cut the judicial branch’s budget what would prevent a Governor deciding that we don’t need the judicial branch and cutting its budget to zero?

And the Court’s Order shows that the Court recognizes the severity of the State’s budget crisis:

….the appellate and trial courts of this state are fully aware of the economic difficulties facing our state and its people.

The Court goes on to state that it has and will continue to do all that it can to reduce expenditures without compromising its constitutional mandate to administer justice fairly and efficiently. The judicial branch cannot do that without adequate funding.

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Governor Barbour appointed Malcolm Harrison Circuit Court Judge for Hinds County today to fill the term of Judge Bobby DeLaughter. Harrison is currently the County Attorney for Hinds County. Here is Harrison's bio:

Hinds County Attorney, S. Malcolm O. Harrison is a native of Jackson, Mississippi and graduated with honors from Jackson State University in 1991. Attorney Harrison attended Cumberland School of Law, Samford University in Birmingham, Alabama graduating in 1994 with his Juris Doctor degree. Attorney Harrison was admitted to the Mississippi Bar, April of 1995. Attorney Harrison is licensed to practice law in all Courts in the State of Mississippi, including the Supreme Court of Mississippi as well as the Fifth Circuit Court of Appeals in Louisiana.

Attorney Harrison is a member of several legal associations including, the American Bar Association, Mississippi Bar Association, Magnolia Bar Association, Mississippi Trial Lawyers Association, and American Trial Lawyers Association.

Attorney Harrison is involved and holds many offices in civic organizations, including Leadership Jackson; City of Jackson, Mayor's Youth Initiative, NAACP; Salvation Army; Trustee Board Member, Farish Street Missionary Baptist Church; 7th District Scholarship Chairman; Omega Psi Phi Fraternity, Inc.; T.C. Almore Lodge #242 F&AM; and Jackson State University, National Alumni Association.

On November 2,1999, Attorney Harrison was elected County Attorney for Hinds County Attorney for Hinds County, Mississippi. Attorney Harrison was the first African American elected County Attorney for Hinds County, Mississippi. Attorney Harrison also serves as the City Prosecuting Attorney for Bolton, Mississippi.

Attorney Harrison is married to the former Tammiko Walker and they have two sons, Khari and Kiland.

You can read my prior posts speculating about Harrison getting this seat here. I view this as a smart appointment by Barbour, who appears to be positioning himself for a possible presidential bid. He recently came under criticism for not appointing African-American judges, which I discussed here. Look for Barbour to appoint more black judges over the next couple of years in order to repair his image on this issue.

Harrison will probably have opposition in the next election, but he stands a good chance to retain the seat if he campaigns hard.

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In August I posted about a Clarion-Ledger article discussing Governor Barbour's failure to appoint a single African-American judge to the state court judiciary since taking office in 2004. According to this new article in the Jackson Advocate, Barbour's record in minority appointments to the state judiciary is now 0-24. To put it in perspective, if Barbour's next appointment is African-American it will raise his batting average for minority appointments from 0% to 4%.

The African-American population in Mississippi is 37%. In order for Barbour to raise his appointment batting average to over 37%, he will need to appoint fifteen African-Americans in a row without a single white. Needles to say, that is not going to happen.

There are currently two open positions in Mississippi where Barbour will make an appointment: Judge DeLaughter's seat in Hinds County Circuit Court and the late Judge Middleton's seat in the Chancery Court for the Seventeenth District (Claiborne, Jefferson, Adams and Wilkinson counties). Appoint two African-Americans here and Barbour can raise his average to 7.6%. While 2 out of 26 is still ridiculously low, it would not have the same ring as zero. 

It does not take a rocket scientist to see that Barbour is positioning himself for a presidential run. But his record on minority judicial appointments will be fodder for those voices, many from within conservative circles, who say that a white Mississippian cannot be elected president. While I disagree with that general statement, I do agree that a white Mississippian who can be portrayed as stuck in the 1960's cannot be elected president. 

I'm not a big Haley Barbour fan, but it would be pretty cool to see a Mississippian president. Governor Barbour has some work to do on his minority appointments if it's going to be President Barbour.  

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Point of Law has this post about Governor Barbour speaking about the judicial bribery scandal in Mississippi. The original question appeared to be about tort reform, but Barbour worked in the scandal:

BARBOUR: I don't think it was related to the tort reform, but as you know, some of the more prominent plaintiffs' lawyers in my state got into trouble. ...

I hate it. It's bad for the court system, it's bad for everybody. One of the things I really believe is, the public has to think the legal system is on the up and up. I mean, that's just really, really important.

Once in my career, I was the deputy chairman of the International Democrat Union, which despite its name - Democrat and Union - is the organization of conservative parties of the world that President Reagan started with Mrs. Thatcher and Chancellor Kohl. And I was struck by how much people in other parts of the world realized the importance of the rule of law in America. And it is not that way everywhere. There are advanced countries that are very prosperous that don't have nearly the confidence, faith and commitment to the rule of law that we do.

And for us, an advantage for us is the little guy generally believes that the court system is on the up and up.

All of sudden we get judges getting convicted of taking bribes and lawyers, good lawyers - they may have been plaintiffs' lawyers and they may be on the other side from me, and politically and everything else - but they're good lawyers. To me it's sad, 'cause it's bad for what we all ultimately want in America, and we do want the rule of law, and we want a system that let's us progress. 

But the tort reform battle and the actual enactment of tort reform I don't think had any role in that. It was other stuff. Most of the litigation had actually started before.

MEESE: I understand that. I have always felt that, to some extent at least, the tremendous amount of money that came to be involved, and the way that the trial lawyers were holding their seminars and dealing themselves, led to the arrogance that led to people like Dickie Scruggs and Bill Lerach to have the bribes and so on...that the money in effect was so great for these trial lawyers that it almost corrupted the system and that's what led to some of these things that we've talked about.

BARBOUR: It's maybe a monetary takeoff on "Power corrupts and absolute power corrupts absolutely."

I don't always agree with Barbour, but he is dead on with his comments that it is important that the public believe in the integrity of the judicial system. The same applies for the bar. As a litigator, I realize that my client will not always win. But it is imperative that we be able to trust the process. Of course, according to DOJ there is no public interest in the judicial bribery scandal.

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Matt Eichelberger at Ipse Blogit has this outstanding post taking issue with Governor Barbour's latest tort reform scare tactic that I wrote about here.  Eichelberger notes:

Now, having practiced in the civil arena before, I can assure you that pre-suit notice, in reality, does nothing more to help settle a case than the filing of a complaint does. It's just a trap to ensnare unwary citizens and keep them from getting justice when they are harmed by a state actor. Period.

and:

Here are the number of physicians in Mississippi by year from 1998 through 2007:

1998 - 5,133
1999 - 5,232
2000 - 5,399
2001 - 5,544
2002 - 5,680
2003 - 5,820
***TORT REFORM ENACTED***
2004 - 5,872
2005 - 5,872
2006 - 5,890
2007 - 5,961

Anyone notice anything odd? For all the hue and cry from tort reform proponents about doctors leaving Mississippi and the health care crisis that would ensue, we had growth in the number of physicians in Mississippi during the 6 years leading up to tort reform, and in fact, we have had less growth since tort reform.

Meanwhile, yesterday the Clarion-Ledger proved what a joke it is as a newspaper with this editorial, which takes Barbour's bait hook, line and sinker, without being able to explain why Barbour is right. Having a good outdoors writer, cartoonist and sports writer does not make a good newspaper.

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The Clarion-Ledger reported in this story on Monday about Governor Barbour's attempt to politically scare the Mississippi Supreme Court into reversing a near-unanimous opinion. Here is the Governor's amicus brief filed with the Mississippi Supreme Court. Here is the Supreme Court's opinion in Price v. Clark. As an initial comment, the Court's decision in Price that filing a lawsuit tolls the running of the statute of limitations was clearly correct and is consistent with the laws of civil procedure in states throughout the nation. The Court's decision in Price has nothing to do with the merits of the case. The defendants can still win on the merits through a summary judgment motion or as the result of a trial.

The shocking aspect of the Governor's brief is the fact that the Governor admits that the real purpose of the pre-suit notice requirement is to impose a penalty on plaintiffs who do not successfully navigate the pre-suit notice mine field:

The Legislature cannot have intended to establish a pre-suit notice requirement but virtually no penalty for non-compliance.

This is a bombshell. The Governor of Mississippi is stating that the state's tort reform laws contain a designed trap to eliminate cases on behalf of unsophisticated plaintiffs who do not properly jump through a set of hoops before filing suit. That was not supposed to be a reason for the notice requirements. Previously, the only reason given to justify the pre-suit notice requirements was that it would give a defendant a chance to investigate a case and settle it before incurring the expense of defending the lawsuit. This reason was already suspect, since defendants never actually try to settle a case after receiving notice, but before suit is filed. Representative Ed Blackmon correctly observed in  the Ledger's article:

The current law requires people who are injured to provide parties certain information with the hopes of settlement before litigation is filed, he said. "I don't know of a single case settled during that time. It's once in a blue moon."

What's happening instead, he said, is Mississippi is reverting to "the dark days when it was a crap shoot whether parties could even get in the courthouse."

What really happens is medical defendants wait to see if the plaintiff navigates the pre-suit notice mine field. In many instances, the defense starts the case by filing a ridiculous motion to dismiss asserting a twisted and absurd reason that the statutory notice provisions were not complied with. The pre-suit notice requirements are complicated and trip up competent lawyers. Regular people who try to assert a lawsuit on their on behalf don't have a prayer. Only after the initial motion to dismiss is resolved will a defendant even think about trying to settle the case--regardless of the merits of the case.  

Now we know as a result of Governor Barbour's brief that the real reason for pre-suit notice requirements in Mississippi is to obtain dismissal of cases with merit. Indeed, a case without merit is destined to be thrown out by the court anyway. This is sordid and wrong. Justice is supposed to be blind and everyone is supposed to have a fair shot in the court system. Govenor Barbour, on the other hand, wants the deck stacked in favor of insurance companies and big business.   

As I discussed in this post back in March, the Supreme Court's changes to multi-party joinder laws had a huge impact in reducing the number of cases against doctors where the doctors should not have been named as defendants. The other major factor with tort reform was the caps on non-economic damages. Pre-suit notice provisions were not a factor at all in reducing lawsuits. They have simply become a mechanism for cases with merit to be dismissed--a mechanism that Govenor Barbour wants to preserve.

If the Supreme Court revisits its decision in Price it should rule that the pre-suit notice requirements are unconstitutional and unenforceable. As support for its ruling the Court should point to the statement in Governor Barbour's brief.

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The U.S Census Bureau web site states that thirty-seven percent of Mississippians are black. According to this article in Sunday's Clarion-Ledger, Governor Barbour has appointed twenty state court judges in his tenure with all twenty being white. That's a really bad statistic for a man positioning himself for a presidential run. The Republican Party's Southern Strategy appears dead after the last presidential election. Getting most of the white votes in the South isn't enough anymore. Anyone who wants to be president is going to need to pick up minority votes somewhere. With a stat like this, blacks are out as potential Barbour supporters. And are Hispanics going to think that Barbour will be a good president for them with a stat like this? Probably not. This is the type of statistic that will get major national media attention should Barbour run for president. I am on record as stating that Barbour has a legitimate shot in 2012, but stuff like this could kill him.

With disgraced Judge Bobby DeLaughter's seat now open Barbour could begin to rectify this horrible record by appointing a black lawyer to fill DeLaughter's seat. But the leading candidates rumored to be on Barbour's list are all white. Given the importance of the seat it would be shocking if Barbour appointed a black to the position and would be the clearest signal yet that Barbour is positioning himself for a 2012 presidential bid.

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Several recent newspaper articles and columns speculate on a possible Haley Barbour presidential run in 2012. Here are links to an A.P. article, a short Washington Post article, and a David Hampton column in the Sunday edition of the Clarion-Ledger. The Washington Post story contains the following quote:

As one GOP operative who forwarded today's invitation to the Sleuth put it, "Here's Haley Barbour making some 2012 moves. When you start going to Iowa and New Hampshire, the writing's on the wall."

Speculation is growing about whether Barbour could win the Republican nomination in 2012 and, if so, whether he could win the general election. While I am not laying the odds on either happening, he looks like a viable candidate for several reasons. First, look at history. Jimmy Carter, Bill Clinton and Barack Obama all arguably came more out of nowhere to win the presidency than Barbour would. Barbour looks more plugged in with his party than Carter or Clinton and faces less competition than Obama in getting the nomination.

My second point is Barbour himself. People criticize his heavy southern drawl, but unlike our last two term president, no one ever says that he sounds or is stupid. He is smart and interviews well. He looked and acted like a leader in the days following Katrina--unlike Louisiana and federal leadership.  

Third, look at the competition. Palin? Gingrich? Romney? You can make just as good a case against everyone else as against Barbour. 

Finally, look at how the parties select their nominees. It's a crap shoot. Win Iowa and New Hampshire and everyone else winds up broke and goes home. McCain looked dead as the nominee for months and then he wiped out the field. Most states don't even have a real say in the nomination. Last year the democratic primary was the first time I can remember it not being over by the time Mississippians got to vote.

The nomination process is like a football game decided mid-way through the first quarter. Arkansas State might score an early touchdown and take the lead over Florida, but the game isn't called with Arkansas State declared the winner. But that's basically how the nomination process works. If Haley Barbour--or anyone else--is winning early, then they can win the nomination. And while it's true that not anyone can be in the lead early, Barbour is among the people who can be. So I don't see how you can discount Barbour as a real possibility.  

Win the nomination and Barbour can win the presidency. The 2012 general election will likely be about the nation's feelings about the Obama presidency. The Republican nominee will not matter nearly as much as how the nation feels about Obama.