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

• Email This
• Print
• Comments (4)
• Trackbacks

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.

• Email This
• Print
• Comments (6)
• Trackbacks

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. 

• Email This
• Print
• Comments (2)
• Trackbacks

Charles Griffin is reporting that Justice James Graves' 5th Circuit nomination made it out of the Senate Judiciary Committee this morning. Here is the link.

• Email This
• Print
• Comments
• Trackbacks

Justice James Graves' Senate Judiciary Committee Re-vote will be Thursday January 27, 2011 at 10:00 a.m. That is 9:00 a.m. Jackson time. Here is the agenda. You can also link to a live webcast of the hearing at the same link. But I doubt that it will be very exciting.

The re-vote is necessary because judicial nominations expired with the end of the 2010 Congress. President Obama re-nominated Justice Graves to the 5th Circuit earlier this month. Graves is expected to pass through the committee and the full Senate with no problem.

• Email This
• Print
• Comments (4)
• Trackbacks

The Mississippi Supreme Court issued its first opinions for 2011 today, including an interesting opinion in Loggers, LLC v. 1 Up Technologies, LLC. Here is the Court's opinion.

Justice Graves wrote the Court's opinion. 

The underlying case was a small breach of contract case in the Pearl River County Circuit Court. The case was tried before a special master.

At the close of plaintiff's case-in-chief, defendant moved for a dismissal under Miss. R. Civ. P. 12(b)(6) and 41(b) on the ground that the plaintiff was barred from bringing the suit under Miss. Code Ann. 79–29–1007(1). The statute relates to a foreign limited liability company having to be registered in the state to assert a cause of action.

The special master ruled that the defendant waive the affirmative defense by failing to raise it in its answer and then raising it for the first time during trial. The Circuit Court adopted the special master's report and added that a specific affirmative defense such as this cannot be raised by pleading rule 12(b)(6).

On appeal, defendant cited Howard v. Estate of Harper, 947 So. 2d 854 (Miss. 2006) and another case. In Howard, the Court found that a general Rule 12(b)(6) assertion in a motion to dismiss was sufficient to preserve an issue in a medical malpractice case. The Court rejected the argument, stating:

[defendant] cannot merely assert a general defense in its initial response to preserve any other defenses that might be asserted months or years later.

Chief Justice Waller and Justices Carlson, Kitchens, Chandler and Pierce concurred. Justice Randolph concurred in result only without separate opinion. Justices Dickinson and Lamar concurred in part and in result, without separate opinion.

My Take:

I really wish that the concurring Justices issued opinions. What is their problem with Justice Graves' opinion?  

But at least there is an apparent solid six justice majority (5 if you don't count Graves due to expected departure to 5^th Circuit) that defendants have to specifically plead and timely assert affirmative defenses. Howard kind of made the waiver law a joke. I consider this opinion to overrule Howard, but it does not clearly state that. 

 Cynics will say that this shows that different rules apply for doctors, since Howard was a medical malpractice case.

I'm going to miss some of the the flowery catch-all affirmative defenses I've noticed popping up in answers in the last couple of years.

For earlier posts on the waiver of affirmative defense issue, see here.  

• Email This
• Print
• Comments (1)
• Trackbacks

Today's headlines suggesting that Justice James Graves' nomination to the 5^th  Circuit Court of Appeals is dead are misleading. Judicial nominations not yet approved by the full Senate die as a matter of course when the Senate adjourns for the year. That does not mean that Graves will not be confirmed.

The key statement in the article is this:

Rick Curtsinger, spokesman for U.S. Sen. Roger Wicker, R-Miss., said President Barack Obama can resubmit Graves' name when a new Congress convenes in January.

This was not unexpected. Carlton Reeves barely got confirmed before the Senate adjourned and his nomination was months ahead of the Graves nomination. Barring something unexpected happening President Obama will re-nominate Graves and he will get confirmed by the full Senate in the first half of 2010.

Meanwhile, I'm hearing that Carlton Reeves will take the oath by the end of next week with a formal investiture later in the year.

• Email This
• Print
• Comments (3)
• Trackbacks

On Thursday the Mississippi Supreme Court reversed a $1,855,000 Copiah County jury verdict in a 7–2 decision in Lincoln Electric v. McLemore. Here is the Court's opinion.

Facts:

This was a product liability failure to warn case involving a welder's claim that exposure to welding fumes resulted in a neurological disease called manganism. The appeal turned on the statute of limitations.

The case was tired before Judge Lamar Pickard in November 2008.

Here are some of the key dates:

• September 3, 2002: doctor diagnoses plaintiff with Parkinsonism and tells him it may be related to welding
• February 2004: plaintiff began filing lawsuits claiming neurological injuries from exposure to welding products
• October 2005: plaintiff diagnosed with manganism, which is related to welding
• November 14, 2005: plaintiff filed complaint against defendants, but didn't serve process
• March 3, 2006: plaintiff filed amended complaint
• March 14, 2006: plaintif served process on defendants

Plaintiff argued that since it was agreed that welding does not cause Parkinsons, his action arose when he learned that he had manganism in 2005. Defendants argued that plaintiff knew of his injury on September 3, 2002 when he was told that his Parkinsons may be related to welding.

Majority Opinion:

Justice Chandler wrote the majority opinion. The Court ruled that the decision was controlled by Angle v. Koppers, which I previously discussed in this post. In Angle the court ruled that an action accrues when the plaintiff learns of the injury, not the discovery of the injury and its cause.

The Court concluded that plaintiff knew that he had an injury in September 2002 when the doctor informed him that he had Parkinsonism that might be related to welding.

Dissent:

Justice Kitchens dissented in an opinion joined by Justice Graves. The dissent pointed out that the jury found that the plaintiff could not have discovered his injury until October 2005. Therefore, the case was timely filed according to the dissent.  

My take:

I'm not real enamored with the majority's opinion. Was it proper for the trial court to submit the issue of when the plaintiff discovered his injury to the jury? The majority doesn't say. I would have liked for the Court to address this question.

If it was proper to submit the issue to the jury, what is the basis for substituting the Court's opinion for the jury's on a question of fact? The majority doesn't say.

Did everyone agree that Parkinsonism is not caused by welding fumes? If so, is it fair that a cause of action accrues when a doctor incorrectly tells a plaintiff that an illness may be related an activity that would give a plaintiff a claim? That seems odd.

So a plaintiff should file an action to preserve a possible claim based on an opinion from a doctor that the plaintiff knows is wrong? Wouldn't that create Rule 11 issues?

Maybe I am missing something here.

• Email This
• Print
• Comments
• Trackbacks

The Senate Judiciary Committee did not act on any pending judicial nominations today. This included the 5th Circuit nomination for Justice James Graves. Here is the link.

The Point of Law blog noted in a post today that conservatives are trying to stall on all nominations for the entire lame duck session. 

President Obama may be about to learn why he should have pushed these nominations through a year ago.

• Email This
• Print
• Comments
• Trackbacks

On Thursday a divided (5–3) Miss. Supreme Court reversed and rendered in favor of the defense in Gardner Denver, Inc. v. Pittman. Here is the Court's opinion, which Chief Justice Waller wrote. Justice Graves wrote a dissent joined by Justices Kitchens and Chandler.

Facts

This was an asbestos case in Hinds County Circuit Court before Judge Winston Kidd. The plaintiff filed suit in 2002. But he was dead at the time.

For anyone who wonders how this happens—it happens. It typically happens when the plaintiff hires the attorney and then dies before suit is filed. Sometimes the deceased person's family does not report the death to the plaintiff's attorney. Plaintiff's attorney files the suit and later learns about the death when they attempt to communicate with the plaintiff about a discovery issue. It's not a huge deal unless statute of limitations issues are in play, which was the case in Gardner.    

In 2004 the plaintiff moved to substitute plaintiff's widow as the plaintiff under Miss. R. Civ. P. 17(a). Plaintiff later filed an amended complaint with the widow as the plaintiff. In 2007 Defendants filed a motion for summary judgment. Defendants' motion for summary judgment was denied and the case was appealed.

Tim Porter and Johnny Givens with Porter & Malouf represented the plaintiff. Fifteen mass tort defense lawyers represented the Defendants.  

Decision

The Court reversed and rendered. The Court ruled that the original complaint was a nullity and that, therefore, substitution was not proper under Rule 17(a). The lengthy dissent disagreed and argued that the cases cited by the majority were distinguishable and that substitution should have been allowed.

The majority also rejected plaintiff's waiver of affirmative defense argument even though the motion for summary judgment was filed nearly two years after the filing of the amended complaint.

My Take

My only comment on this decision is on the issue of waiver of affirmative defenses. I'm just going to repeat what I wrote in this February 2010 post:

The Court is slowly developing an irreconcilably inconsistent body of law on the issue of waiver of affirmative defenses. In some cases the court finds a waiver based on the passing of a certain amount of time. In other cases, it finds no waiver for similar or longer amounts of time. Efforts to distinguish the different cases are un-persuasive. It appears that what the Court is really doing is basing its waiver decisions on subjective feelings about who should win the case. I’m not saying that is what the Court is actually doing. But that is how it’s starting to look—and that’s a problem.  

• Email This
• Print
• Comments (2)
• Trackbacks

This Politico article from last week discusses the Republican political strategy of delaying votes on all President Obama's federal judiciary nominations.

The linked article includes this picture of Sessions:

 

Is it just me, or does Sessions look like an elderly Mickey Mouse? Seriously. 

Anyway, the article mentions Democrats whining about the delays and goes on to state:

Both sides acknowledge that Obama has been relatively slow to nominate judges for the more than 100 vacancies in federal courts. Democrats said it is partially a result of the amount of resources it requires to find and vet qualified nominees. The GOP, however, said the White House’s slow pace accounts for his low confirmation rate compared with Bush’s; so far, Obama has nominated 85 judges compared with 127 nominations Bush had made at a similar point in his presidency.

The Republican delay isn't surprising at all. This is why I was bitching about Obama's slow pace at making nominations months ago. Why couldn't Obama see this coming? Many of us did—despite not having Ivy League degrees.

Democrats seem to always be behind the Republicans in politics. I could see Democrats advocating a cavalry charge against German tanks in WW II. 

Caught up in the delay are Carlton Reeves (nominated for U.S. Dist. Court) and Justice James Graves (nominated for 5^th  Circuit Court of Appeals). The fact that Reeves and Graves are not controversial and have the support of Mississippi Republicans does not matter. The Republicans have political gamesmanship to play.

Reeves and Graves will be confirmed by the full Senate once they get their votes. But I have no idea when that will be. It doesn't look like it will be anytime soon.  

• Email This
• Print
• Comments (1)
• Trackbacks

Will Bardwell attended Justice Graves' Senate confirmation hearing on Wednesday and wrote this account for the Northeast Mississippi Daily Journal. The hearing opened with softballs from Senator Al Franken. Franken reminded Graves that “you're good enough, you're smart enough, and dog-gone it, people like you.”

Then it was time for the Republican attack. Except the Republicans implemented a French battle plan and questioned Graves about something they couldn't beat him on: the death penalty. Bardwell reports:

Each time, Graves parried by assuring Sessions that, as a member of a lower court, he would bind himself to the decisions of the U.S. Supreme Court. As evidence of that deference, Graves told the stridently pro-death penalty senator that he had voted to affirm capital sentences in no fewer than a dozen cases.

But fears raised earlier in the week about a real attack on Graves proved unfounded.

After writing this post about Eugene Volokh's blog raising questions about Justice Graves, I received an email from Mr. Volokh that explained how he knew about the Mississippi Supreme Court decisions that he wrote about. The email explained:

Dear Mr. Thomas:  I read with interest your post that mentioned my post about Justice Graves, but wanted to make one small factual point – though I do often learn about stories because readers send me links, in this case (as I recall) I learned about the Wilkerson and Osborne opinions myself, when they were decided.  The Wilkerson case was reported in Westlaw Bulletin, and I have a daily WestClip query on that; the Osborne case, I think, likely came up in a daily WestClip query I have for new First Amendment cases.  My main scholarly field is First Amendment law, so I track free speech cases closely.

 

Whoops, forgot to make explicit one thing:  I am certain that no-one contacted me about the cases after, or even not long before, the Graves nomination; rather, it was the Graves nomination that reminded me about the cases that I had read earlier.

Volokh's explanation makes sense, particularly given this sentence that was in the first paragraph of his post:

And while I know only one small corner of Justice Graves’ work, I hope the Committee asks him a question about this corner.

By the way, I apologized to Volokh for misreading the tea leaves and he was very gracious. His blog has a national following that will include me in the future.

• Email This
• Print
• Comments (4)
• Trackbacks

Blogs were burning up on Friday over this blog post by a California law professor (Eugene Volokh) that suggested that 5^th Circuit nominee and current Miss. S. Ct. Justice James Graves (who is African-American) is racist. Volokh's blog has a national following.

In support of the theory, Volokh contrasted Graves' voting record on several appeals In which Graves did not explain the reason for his votes. Volokh states:

Unfortunately, Justice Graves did not offer any explanation for his different conclusions about the hostile-to-gays speech and the hostile-to-whites speech. Nor did her offer any explanation for the different approaches that the opinions he joined used in those cases.

Will Bardwell believes that the attack is part of a Republican attack on Graves, whose Senate confirmation hearing is on Wednesday.

Bardwell may be right, but it's an odd attack. Following Graves' nomination to the 5^th  Circuit, Gov. Haley Barbour, and Senators Thad Cochran and Roger Wicker all endorsed Graves' nomination. All three are Republicans who have little or nothing to gain from supporting Graves.

I do not believe that Graves is racist

Graves is a black judge who was elected to the Miss. S. Ct. in a majority white district in a race against a white candidate who many people thought played the race card. He did it by convincing many white Republicans to vote for him. That's already impressive. It would be amazing if Graves pulled that off while secretly hating white people.

I can't recall hearing any lawyer who appeared in front of Graves theorize that he is a racist. I can't say that about every African-American judge in Mississippi. When Graves was a Circuit Court judge, the lawyers who had to fear him were those making bad arguments.  

Volokh's article quotes no one from Mississippi and there is nothing in the article to suggest that someone from Mississippi told him that Graves may be racist. Of course, someone fed the story to Volokh.

Appellate Judges Should Explain their Votes

While I have not heard Justice Graves criticized as a racist, I have heard criticism about his frequent dissents without written opinions. I've also heard that it could become an issue in his confirmation process. It appears that it has, though not in a way that anyone I know foresaw.   

The “I told you so” award goes to Tom Freeland, who has long complained about unexplained dissents. Here is Freeland's reaction the Volokh's article, which concludes:

There is a direct virtue to a judge’s explaining their vote beyond telling the public and the parties:  Expressing aloud what one thinks is a great way of testing whether one is right.  I really see the problem here as voting-without-explaining, a problem that is not limited to Justice Graves on that court, and that started before he ever arrived there.

And if judges fail to explain the reason for their vote, it leaves an opening for someone to explain it for them. While I believe that Volokh is wrong, Graves opened himself up to the criticism by not explaining his votes.

• Email This
• Print
• Comments (1)
• Trackbacks

Jackson lawyer Carlton Reeves' nomination to be a U.S. District Judge cleared the Senate Judiciary Committee on Thursday. Here is the Clarion-Ledger article on the story. The next step for Reeves is a full Senate vote.

Logic suggests that the Senate vote should take place in the next few weeks. But we're talking Washington politics, so throw logic out the window. Educated estimates are that Reeves' Senate vote will likely be in October or November. But once the Senate approves the nomination—which is very likely—Reeves should be sworn in as a judge in a matter of a few days. Just in time for the new federal courthouse in Jackson, which is scheduled to open later this year.

Word on the street about the nomination of Mississippi Supreme Court Justice James Graves is that his nomination to the 5th Circuit Court of Appeals will drag along, possibly into next year. Estimates are that Justice Graves will not get his Senate Judiciary hearing until sometime in the Fall, possibly after the November elections. That would likely mean a Senate vote in early 2011. Thank Republicans for the delay, but blame the Obama administration for waiting so long to appoint Graves.

There is also a possible doomsday scenario for Graves' nomination. If the Republicans regain control of the Senate in the November elections, they could halt a vote on all Obama appointees until after the 2012 presidential election. That could doom Graves' appointment, despite public support from Mississippi Republicans. While this scenario is unlikely, I am hearing that it is possible.   

• Email This
• Print
• Comments (1)
• Trackbacks

USA Today has this new article on the slow going that President Obama is having in getting federal judicial appointments approved by the Senate. The article is fairly typical of similar articles focusing on the confirmation delay during the past year or so.

 The article notes that the President is appointing record numbers of non-white males:

So far he is setting records for the number of women and minorities nominated to lifetime appointments. Nearly half of the 73 candidates he has tapped for the bench have been women. In all, 25% have been African Americans, 10% Hispanics and 11% Asian Americans.

But delay is the name of the game for Republicans:

During his first 18 months in office, his administration has been thwarted by unprecedented delays. The situation, which has received little notice against the backdrop of a pending Supreme Court nomination and the administration's complex legislative agenda, could undercut Obama's effort to significantly infuse the federal courts with more women and minorities.

The article recognizes that the Obama administration is not blameless:

With few exceptions, Senate Democrats have yet to try to force Republicans' hand. The Obama White House has been distracted by other issues — even on the judicial front, where the administration has had two high-court nominations.

Unfortunately, the article misses the point that a huge delay is the one by the President in making his appointments. It took President Obama a year and a half to nominate Carlton Reeves to the U.S. District Court despite the fact that everyone knew that Reeves would probably get the nomination after Obama won the 2008 election.

It took only eight months or so for the President to nominate Justice James Graves to the 5^th  Circuit. But again, that was too long of a delay given the fact that Graves was the front-runner from the day that Judge Barksdale took senior status. The delays in making the nominations of Reeves and Graves are 100% the fault of the Obama administration.

Sure now that the nominations have been made Republicans can be faulted for going into the 4–corners. But is that surprising? That's how Republicans play politics and Republican Senate leaders argue that it came from the Democratic play book:

I don't say all of this to say there is going to be payback," Sessions said after Leahy earlier criticized GOP stall tactics. "I am saying this to set the record straight because I will not stand silent and have what is happening today be compared with the incredibly obstructive actions the Democrats took in early 2000."

Football fans aren't surprised and don't cry when the team ahead starts taking a knee in the last two minutes of the game. Likewise, Democrats should stop crying over spilled milk and should be more proactive in making nominations in a timely fashion and pushing harder to get votes in the Senate.

Earlier posts on President Obama's judicial appointments.

• Email This
• Print
• Comments (8)
• Trackbacks

Any doubts about whether Justice James Graves would be confirmed to serve on the Fifth Circuit Court of Appeals seemed to be put to rest on Friday with Mississippi Republican Senator Roger Wicker's endorsement of Graves.

So how does Graves' imminent departure impact the future of the Mississippi Supreme Court? It's hard to say at this point, but the possibilities are frightening. Graves is viewed as a left of center justice. His replacement will be appointed by the conservative Governor Haley Barbour. That is potentially bad for both the legal rights of individuals and the legal profession in Mississippi.

Barbour will face pressure from tort reformers to appoint a replacement for Graves who appears certain to uphold the legislative caps on non-economic damages and will support a reversion to the Court's pattern under Chief Justice Smith of going years without affirming a plaintiff's verdict. That practice was exposed in 2008 by respected Jackson defense lawyer Alex Alston.

According to Alston, in the 4 1/2 years prior to June 2008 the Mississippi Supreme Court reversed 88% of jury verdicts that favored wronged victims. During the same time period, the Court reversed 0% of jury verdicts that favored big business. Alston went public with his criticisms. The Court's swinging too far to the right is widely believed to be the primary reason that Chief Justice Smith lost his re-election bid to Jim Kitchens.

Smith's defeat signaled that any Supreme Court candidate who can be portrayed as always voting for one side is vulnerable in an election. After Smith's defeat, Justice Waller became Chief Justice and the Court's decisions in civil cases began to reflect a swing from the far right to the middle. No longer are defense lawyers telling plaintiff lawyers that if you get a verdict, we'll just appeal and get you reversed. No longer are defense lawyers bragging that: “there is not an argument I can make that (insert name-you know who I mean)will not buy.”

Incidentally, most of the defense lawyers who made these jokes were morons. They just couldn't figure out why plaintiff lawyers weren't filing cases any more. As if plaintiff lawyers were motivated by creating billable hours for defense lawyers. Smart defense lawyers were just as concerned about the Court's decisions as plaintiff lawyers and are now just as happy about the Court's moderation.

Some people speculate that Governor Barbour and Mississippi conservatives are happy to get Justice Graves off the Supreme Court so that they can appoint a more conservative successor and try to roll back the progress made under Chief Justice Waller's leadership.  

So who does Barbour appoint? Unless he wants to commit political suicide it must be an African-American, since Graves is the only African-American on the Court. The name that I have heard most often is Jackson attorney La'Verne Edney, who is a partner in the Brunini Law Firm and currently serves as General Counsel of the Mississippi Volunteer Lawyers Project. Edney's background is as a defense lawyers and she is perceived as being a possible conservative vote on the Court.

Hinds County Chancery Court Judge Denise Owens is a good judge who would be a popular pick in the Bar. But her husband and brother are prominent plaintiff lawyers, so her appointment might not be popular in all circles. Another possibility is Chancery Court Judge Vicki Barnes of Vicksburg. I have been impressed with Judge Barnes in my limited appearances before her and she has shown an attention to detail that would be a plus for an appellate judge.

There has also been speculation that Governor Barbour might promote Chief Judge Leslie King from the Court of Appeals, giving Barbour an additional appointment. Proponents of this theory point out that Barbour's record of appointing minority judges is still bad. Elevating King would allow Barbour to appoint two minority judges on the State's appellate courts.

One factor with Governor Barbour that is often over-looked is whether the appointee can win an election for the seat. It is my understanding that Barbour places great weight on this factor. He wants his appointees to win their next elections, presumably because they are a reflection on his political legacy.  

At this point, I am not aware of a clear favorite for the seat. My guess is that strong rumors will emerge within the next few weeks. I will do my best to stay on top of this developing story and post what I am hearing.  

• Email This
• Print
• Comments
• Trackbacks

On Thursday President Obama finally nominated Mississippi Supreme Court Justice James Graves to serve on the Fifth Circuit Court of Appeals. Here is the Clarion-Ledger's article. Here is Graves' bio on the Supreme Court's web site.

Graves has been the front runner since Judge Barksdale took senior status in the Fall. My prior posts on the vacancy are here, here, and here.

Justice Graves is very deserving and will do a fine job on the Fifth Circuit. He was a great Circuit Court judge who earned the respect of lawyers on the plaintiff and defense side. Watching hearings before Judge Graves was entertaining. He told many lawyers that they were winning based on their brief—but were losing the lead in oral argument. It was always interesting to see who had the sense to sit down and shut up. He had little tolerance for bad cases and unprepared attorneys.

Graves was also extremely effective and under rated in getting cases settled. He could scare both sides into settling. Judge Charles Pickering was the only judge that I have encountered who was as effective at pressuring the parties into settlement.

Some may disagree, but I view Justice Graves as a moderate in civil cases on the Mississippi Supreme Court. Sometimes he votes for the plaintiff, sometimes for the defense. I expect that to continue on the Fifth Circuit.

On Monday I will look to how Justice Graves' appointment may impact the dynamics on the Mississippi Supreme Court and speculate on possible appointments for the seat by Governor Barbour.

• Email This
• Print
• Comments (1)
• Trackbacks

On Friday the Fifth Circuit Court of Appeals did about the most bizarre thing that I can recall an appellate court ever doing in the Comer v. Murphy Oil case: dismissed an appeal without deciding it because it did not have a quorum to decide the case. Needless to say, it's caused a huge stir that you can read about at NMC, Anderson Blogs, and Consumer Class Action and Mass Torts, among other places.

The case at issue was the novel case where plaintiffs sued oil companies for causing climate change that makes hurricanes—specifically, Katrina—worse. We can debate the plaintiff's causation theory another day. The important point is that the Fifth Circuit couldn't get a quorum to decide the case, presumably because the justices owned stock in the defendant companies, which included BP and other major oil companies. So the Court punted the case without deciding the appeal even though the issues were ripe for determination. I honestly did not know that was an option.

Oops. Looks like President Obama should have been in a bigger hurry in getting Justice Graves confirmed to fill Judge Barksdale's seat on the Fifth.

It is almost guaranteed that the Gulf Oil Spill litigation will involve multiple appeals from the district courts to the court of appeals. But for the cases in the Fifth Circuit, there is an apparent likelihood that the appeals court will be unwilling unable to hear the appeal. This litigation is going to need an appellate court that has the guts “quorum” to decide the issues. In short, the litigation needs to be somewhere where the appellate court can hear the case. That's somewhere other than the Fifth Circuit.

This means that the MDL should not be located in the states that comprise the Fifth Circuit: Texas, Louisiana and Mississippi. How big of an advantage would it be for the oil companies to get the MDL in front of a hand-picked judge in Houston with no appellate court in play? Too big.

The MDL panel needs to think about this and locate the MDL in another circuit. For instance, in the Eleventh Circuit, which includes Alabama and Florida. Or even in a court located on the other side of the county where there is a district judge and appellate court that can hear the case.  

Incidentally, while I do not always agree with every decision by the Mississippi Supreme Court, I cannot imagine our justices doing what the Fifth Circuit did in Comer v. Murphy Oil.

• Email This
• Print
• Comments (3)
• Trackbacks

Main Justice has this story reporting that Southern District Assistant U.S. Attorney Felicia Adams is being considered for the U.S. Attorney in the Northern District. Adams was once thought to be a candidate for the open Fifth Circuit judgeship, but it’s now pretty clear that Justice James Graves will be appointed to the Fifth Circuit unless unexpected opposition emerges. Graves is deep into the vetting process with his name already having been passed on to the A.B.A.

It appears that Adams being in the running for the Fifth Circuit helped her with the U.S. Attorney post, since she was not previously known to be a candidate for the position. Adams is not well known in the Jackson legal community, but is well thought of by those who do know her.

• Email This
• Print
• Comments (2)
• Trackbacks

It has been five months since 5^th Circuit Judge Rhesa Barksdale announced that he was taking senior status, giving President Obama a slot to fill on the 5^th Circuit Court of Appeals. After initial speculation that the position would be filled by someone from Texas or Louisiana, word leaked that the President would fill the position with an African-American Mississippian.

Mississippi Supreme Court Justice James Graves immediately emerged as the favorite for the nomination, as discussed in this post. Other names mentioned for the nomination at one time or another in legal circles include:  

1. Hinds County Circuit Court Judge Winston Kidd,
2. Hinds County Chancery Court Judge Denise Owens,
3. former Hinds County Circuit Court Judge Robert Gibbs,
4. Jackson attorney Doug Minor,
5. Assistant U.S. Attorney Felicia Adams,  
6. Circuit Court Judge Margaret Carey-McRae,
7. Jackson attorney Walter Johnson, and
8. Jackson attorney and presumptive District Court nominee Carlton Reeves.

I believe that the White House has interviewed at least several people on this list.

Speculation continues to center on Justice Graves as the front-runner for the nomination. He is the only person on  the list with appellate court experience, in addition to previously serving as a trial judge in Hinds County Circuit Court. Justice Graves is rumored to have the support of individual(s) with close ties to the White House Counsel’s Office.

Although Justice Graves may not have universal support in conservative circles, he is rumored to have the tacit approval of Governor Haley Barbour, who would like to appoint an African-American to the Mississippi Supreme Court to strengthen his 2012 presidential bid. Governor Barbour is effectively running for President now, which should be kept in mind when viewing his political moves.

One thing the Governor needs to do before the official campaign starts is to repair his glaring deficiency in appointing minorities to judge positions, as discussed here and here. Since criticism of Barbour ‘s minority appointment record became public last year he quietly appointed several African-American judges, including appointing Macolm Harrison to fill the seat of Bobby DeLaughter. If Justice Graves is confirmed for the 5^th Circuit, Governor Barbour will get to name his replacement on the Mississippi Supreme Court. Appointing an African-American to the Supreme Court would go a long way to blunt the criticism of Barbour’s record on minority appointments.

One thing that appears certain is that the White House better get moving if it intends to fill Judge Barksdale’s seat. There is less than two years until the Iowa caucuses. But the 2012 presidential race will kick off a year before that—meaning that we are less than a year from formal announcements from Republican presidential candidates. Doesn’t that sound like fun? Presidential election campaigning less than a year away?

Once the presidential election cycle begins confirmation of judicial nominees in the Senate takes a back-seat to campaigning and political gamesmanship. At some point, the Republicans will stall votes on all nominees in hopes of regaining the White House. Look for that point to be at least a year before the election in 2012. 

This means that the clock is ticking for President Obama to fill federal court vacancies. And with Supreme Court Justices Stephens and Ginsberg expected to step down this year or next year at the latest, the White House will focus on filling those vacancies. 

President Obama needs to nominate someone for the 5^th Circuit soon and press for a Senate vote this year. Failure to do so could result in a lost opportunity to add diversity to the Court and would be a black-eye for the Obama administration. It has been known for close to a year that Judge Barksdale would be taking senior status and he made his formal announcement in September. It's inexcusable that it has taken the White House this long to name a replacement--and we're still waiting.

• Email This
• Print
• Comments (2)
• Trackbacks

In this October post, I discussed the vacant 5^th Circuit Court of Appeals slot and mentioned Justice James Graves as a candidate to fill the position. Since then, President Obama’s administration has moved at its typical slow pace in filling the position. With the President’s White House Counsel leaving the administration at the end of the year, it appears unlikely that the announcement of a nominee is imminent.

It’s my understanding that Justice Graves remains on a growing list of candidates. Other names mentioned as candidates, in no particular order, include:

1. Hinds County Circuit Court Judge Winston Kidd,
2. Hinds County Chancery Court Judge Denise Owens,
3. former Hinds County Circuit Court Judge Robert Gibbs,
4. Jackson attorney Doug Minor,
5. Assistant U.S. Attorney Felicia Adams, and 
6. Circuit Court Judge Margaret Carey-McRae.

It sounds like Judge Winston Kidd is Congressman Bennie Thompson’s candidate. But each of the other candidates have their own supporters in political circles or the bar. I have not heard of Congressmen Gene Taylor or Travis Childers supporting a candidate. Taylor is known to stay out of appointment debates. Childers is rumored to have focused on pushing for Oxford attorney Christi McCoy to be named U.S. Attorney for the Northern District. But McCoy is unlikely to get the nod.

It is believed that some of the 5^th Circuit candidates have been interviewed over the phone by the White House.  

A huge question is when will the White House make an announcement. To see how long this could go on, look at the vacant U.S. District Court seat that has long been presumed to be going to Jackson attorney Carlton Reeves. The seat has been vacant for years and Reeves has been the only known candidate since Obama’s election more than a year ago. But the White House has yet to make an announcement and appears to be in no hurry to make an appointment.

If the White House follows a similar pace with the 5^th Circuit nominee, we will be still be talking about this vacancy this Summer, and perhaps later.

• Email This
• Print
• Comments
• Trackbacks

There is a rare opening on the 5th Circuit Court of Appeals with Judge Rhesa Barksdale taking senior status. President Obama will appoint someone to fill the seat. For a while it sounded like the appointment would go to someone from Louisiana. Later, I heard that Texas, Mississippi and Louisiana all had a shot at the seat.

I am now hearing that the White House is seriously looking at several candidates from Mississippi. The most prominent name that I am hearing as a candidate is Mississippi Supreme Court Justice James Graves. Justice Graves is qualified with eight years on the Supreme Court and experience as a trial judge before that.

You would expect there to be many people maneuvering to influence who gets this major appointment. A lot will depend on what the White House is looking for in court of appeals judges. If it is looking for someone in their fifties, then it will be tough to beat Justice Graves. President Bush often opted to fill appointments with young people who would likely hold the position for thirty years or more. Examples include Judge Sul Ozerden and Judge Dan Jordan. We do not know enough about President Obama yet to conclude if he will follow a similar strategy. All we really know is that Obama is moving slowly at making Mississippi appointments such as U.S. Attorneys, Marshals and Judge Barbour's District Judge seat.