Jimmy Gates with the Clarion-Ledger has this article about the Mississippi Supreme Court’s recent decision rejecting a petition to adopt Rule 23, which would permit class actions in state court.

Judge Primeaux’s blog post on Monday explains why enacting Rule 23 was not popular. He states:

Before I am flooded with comments along the lines of “Mississippi is the only state without a class-action rule,” and “We are out of step again,” let me point out that I am a member of the MSSC’s Advisory Committee on Rules, and have been since 2010. The committee membership includes plaintiffs’ and defense lawyers, an assistant AG, a public defender, 2 each circuit and chancery judges, a county-court judge, and an appellate judge. I am on the subcommittee that exhaustively studied the proposal, including reading scholarly articles on the subject and studies of other states’ rules. We even interviewed proponents of each side of the debate, something we have not done before during my time on the committee. The proposal was discussed in depth. The unanimous conclusion of the subcommittee (with one abstention) was that the federal Class Action Fairness Act of 2005 (CAFA) has had the effect of making almost all class-action suits removable to federal court, obviating the need for a state rule. The full committee voted unanimously (with one abstention) that the proposed rule not be adopted.

My Take:

I never could get worked up over this issue. Are state court class actions really a thing somewhere?

Don’t get me wrong, I’d rather have them than not have them because it might help business for Mississippi attorneys. But I don’t know that this is a big deal.

On Thursday a divided Mississippi Supreme Court affirmed the trial court’s refusal to grant an extension to file a notice of appeal in Nunnery v. Nunnery. Here is the Court’s opinion.

Justice Coleman’s majority opinion has the perfect opening for the case:

The instant case presents a difficult factual situation and outcome. In the wake of an attorney’s family tragedy, the defendants missed their deadline for filing their notice of appeal. The chancellor denied the defendants’ request to extend the time to file the notice of appeal.

The attorney was a solo practitioner. The family tragedy was that the attorney’s brother was critically injured in a car wreck in South Carolina and died after an extended stay in an ICU. The deadline for filing the notice of appeal expired between the date of the accident and the date of the funeral.

The majority found no abuse of discretion and affirmed. Joining Justice Coleman in the majority were Justices Randolph, Lamar and Beam.

Justice Dickinson wrote a dissenting opinion joined by Justices Waller and King. Justices Maxwell and Kitchens did not participate.

The decision turned on whether the trial court’s decision was based on a question of fact or law. The majority deemed it a fact question–the minority a legal question.

From the dissent:

Simply put, [defendants’] counsel clearly found himself in extraordinary circumstances which were completely beyond his control. This Court sometimes forgets that our extremely high expectations for attorneys do not comport with reality–the reality that attorneys are humans and will sometimes, on rare occasion, be overwhelmed by extraordinary personal or familial circumstances which understandably take precedence over court-imposed deadlines.

But since the majority determined this was a fact question subject to the abuse of discretion standard, it affirmed.

My Take:

I hate that the Court had to decide this case. The Appellees not agreeing to the extension was a dick move. If I was in that position, I would have agreed to an Agreed Order granting the extension. I believe that most lawyers that I have litigated against would also agree to an extension in that scenario.

As for the Court’s decision itself, my life and career experience put me in the dissent’s camp. In my opinion the attorney did the right thing by dropping everything at work and putting family first in a time of crisis. I’ve been there–more than once. And if you practice law long enough, chances are, you are going to find yourself in that situation.

When a loved one is suddenly stricken by accident or injury, everything else goes by the wayside. One night you are awakened by the phone ringing. The next night you sit all night in the ICU waiting room praying to God that the phone from the unit does not ring for you. Even if you could practice law in those circumstances, you shouldn’t.

And extended illnesses are much more disruptive to practices than sudden deaths. I’ve had family members in ICU. Every patient in that unit is exceptionally sick.

One of the great things about being an attorney is that you can be a solo practitioner. But solo practitioners have no one to fall back on when tragedy strikes. It’s either pause the practice or neglect the family. It’s scary for solos like me.

If you have a terminally ill loved one and you don’t drop everything and do whatever you can for your family, you will regret it for the rest of your life. Trust me. I’ve done it the wrong way and the right way. I will not do it the wrong way again.

So I commend the Appellants’ attorney for putting family first. You did the right thing.

On Thursday a divided Mississippi Supreme Court denied rehearing in the State v. Sandoz, Inc. average wholesale price case. The case was an appeal from a $30 million bench verdict in Rankin County.The verdict included $3,750,000 in punitive damages.

There was no opinion. The decision appeared on the Court’s hand-down list.

You can read my original posts on the case here and here.

Here is Patsy Brumfield’s article on the ruling on Mississippi Today.

Justices Kitchens, King, Randolph and Beam voted to deny rehearing. Justices Dickinson, Lamar and Coleman would have granted rehearing. Chief Justice Waller and Justice Maxwell did not participate.

Former Justices Chandler and Pierce, who participated in the original decision, are no longer on the Court. Their votes split in the original decision with Justice Chandler writing the majority opinion.

My Take:

It will be interesting to see how many defense lawyers pretend like this opinion never happened when explaining how the Court is guaranteed to reverse any large verdict a plaintiff happens to get in state court.

Having waited for the U.S. Supreme Court to rule on the issue of same sex marriage, it was unsurprising that last week the Mississippi Supreme Court remanded a same sex divorce case to chancery court where the divorce will presumably be granted.

Here is the Court’s decision.

Here is the Clarion-Ledger’s article on the decision.

The State, as Appellee, confessed the Appellant’s motion for entry of judgment due to the Supreme Court’s ruling this summer in Obergefell.

Despite the uncontested posture of the case, Justices Dickinson and Coleman dissented. The dissents argue that the Court may not have to follow the U.S. Supreme Court if the decision was wrong. Mississippi College Law Professor Matt Steffey panned the dissents in the Clarion-Ledger article:

Chief Justice of the United States John Roberts wrote the dissent in Obergefell v. Hodges, which is why Matt Steffey, constitutional law expert and Mississippi College of Law professor, doesn’t believe Roberts’ opinion can be used for a valid argument.

“A dissent is the opinion of the side that lost,” Steffey said.

Steffey said Dickinson is simply saying the U.S. Supreme Court got it wrong. Steffey also said Dickinson’s argument is the same one that the Ku Klux Klan, the White Citizens Council and former Governor Ross Barnett used to oppose Brown v. Board of Education.

“It’s exactly the same line of argument considered and rejected by our founding fathers,” Steffey said. “I’m talking about the line of thinking where every person gets to decide for themselves what the law means instead of following binding decisions of the court.”…

Justice Coleman wrote a separate statement that used a hypothetical situation in which the Supreme Court ruled every household must own a zoo animal.

“I would be writing the same statement and expressing the same concerns if faced with a United States Supreme Court decision that held the Constitution of the United States required every household in America to own a giraffe,” Coleman wrote.

In his statement, he concludes that requiring households to own giraffes has “no constitutional support.”

“This is not what you would expect from a serious-minded judge,” Steffey said.

The dissents are also attracting negative comments on blogs.

It’s worth pointing out that Mississippi’s ban on gay marriage has already been overturned in federal court by District Judge Carlton Reeves as a result of a directive from the Fifth Circuit to follow Obergefell:

“Obergefell, in both its Fourteenth and First Amendment iterations, is the law of the land and, consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court,” Judge Jerry Smith wrote for a three-judge panel of the 5th Circuit Court.The panel heard oral arguments in the cases in January, but opted not to rule before the U.S. Supreme Court settled the issue in Obergefell v. Hodges on Friday. Now, the panel has given district judges in the three states until July 17 to issue final rulings in the cases.

Judge Smith was appointed to the Fifth Circuit by President Reagan in 1987. He’s conservative and knows what he’s doing.

My Take:

This is an interesting decision. I love it when the Mississippi Supreme Court issues interesting decisions.

I definitely thought the Court had to follow the Obergefell decision under Marbury v. Madison. Justice Coleman says that may not be the case.

What would the U.S. Supreme Court do if a state court decision on gay marriage goes the other way and rejects Obergefell? Would there be another 5-4 split along the same lines as the original decision? Or would it be closer to a 9-0 vote on the Marbury v. Madison issue? Or something in between? My guess is 9-0.

These are just a few of the many interesting questions this case raises.

Last week’s Order and two written objections in Mississippi’s gay divorce case is fascinating from both a procedural and substantive standpoint. Here is the Court’s order.

The legal issue in the case is whether a gay Mississippi resident who was lawfully married in another state may obtain a divorce in Mississippi. The State of Mississippi–maintaining its time honored tradition of being on the wrong side of history–says no.

The State argues that since Mississippi does not recognize same sex marriages, it can’t grant same sex divorces. A humorous twist on this argument raised by Justice Dickinson at oral argument was the question of whether Mississippi should be encouraging same sex divorces based on its public policy againt same sex marriage.

The Court did not decide the issue. Instead, the Court asked for more briefing on the question of:

In light of Mississippi’s public policy of not allowing or recognizing a marriage between two persons of the same gender, what rational basis supports the interpretation or application of a law or constitutional provision so as to prohibit Mississippi courts from granting a divorce to a Mississippi resident who was lawfully married in another state to a person of the same gender?

Six justices agreed with the Order. Justice Chandler disagreed, without indicating how he would vote on the issue. Justice King disagreed with a 25 page opinion explaining why Mississippi’s ban on same sex marriage violates the Equal Protection Clause. Justice Kitchens joined Justice King’s opinion.

Footnote 4 of Justice King’s opinion presents a real problem for gay marriage opponents. The footnote is to the following:

The State argues that Mississippi’s laws pass muster under rational basis review, justifying them with the responsible procreation theory, tradition [Mississippi code for bigotry], and a ‘wait and see approach.’ It also argues that Windsor stands for the proposition that states control the definition of marriage.

Here’s the footnote (in part):

Miscegenation statutes were justified on eerily similar grounds…

Ouch! That’s just not very sporting. Lumping discrimination of gays in with Mississippi’s embarrassing history of racial discrimination is sort of like standing here while someone bad mouths the United States of America.

I get the Court wanting to let this issue play out in the U.S. Supreme Court–if that’s what is going on here as Justice King argues. And I’m not going to quibble with it. The issue does need to be resolved by the U.S. Supreme Court.

But we all know where this is going. Same sex marriage (and divorce) will soon be legal in all 50 states. The sky will not fall. It will just be another bad tradition biting the dust.

Here is coverage on the decision on TBA. I wonder what NMC would have written on this decision?

In 2010 I posted about a jury verdict for fraud against McComb lawyers Thomas Brock and William Guy. Here is the post and a related post about a ruling on a motion for attorney’s fees in the case.

From my 2010 post:

The trial involved the claims in two cases. Here are the Amended Complaints in the Turner case and the Harried case. Ill. Central sued the lawyers and their clients, but the clients obtained a defense verdict at trial.

The Complaints alleged that the individual defendants were plaintiffs in the big Cosey Jefferson County asbestos case that was filed in 1995 in which there was a massive plaintiff verdict around ten years ago. It was one of the verdicts that led to tort reform in Mississippi.

The defendants sued Ill. Central in 2001 in Jefferson County asserting an FELA claim related to exposure to asbestos. The defendants failed to disclose to Ill. Central that they were plaintiffs in theCosey case and settled their claims with Ill. Central for $90,000 and $120,000 respectively. The individual defendants testified that the lawyers (Guy and Brock) were aware of their prior asbestos claims in Cosey.

Ill. Central sued the lawyers and their clients for fraud. I believe that the verdict was for the $90,000 and $120,000 previously paid by Ill. Central, but a judgment is not on file yet, so I am not sure.

After the verdict, the Mississippi Bar brought disciplinary charges against Brock and Guy. On October 16, 2014, the Mississippi Supreme Court threw out the charges. From the Court’s hand down list:

The Mississippi Bar v. Thomas W. Brock; Consolidated with 2010-BD-01859-SCT The Mississippi Bar v. William S. Guy; Disposition: Respondents’ Motion to Dismiss Complaints is granted. This Court hereby accepts and adopts the recommendations of the Special Tribunal with respect to this case. Adopting said recommendations, this Court finds that the clear-and-convincing evidence standard required for imposition of disciplinary action against attorneys in Mississippi has not been met in this case. The complaints filed against Thomas W. Brock and William S. Guy by the Mississippi Bar are dismissed. Costs of this action shall be assessed to the Mississippi Bar. Waller, C.J., for the Court. Order entered.

In reaching its decision, the Court adopted the Complaint Tribunal’s Findings of Fact and Recommendations. The findings state in part:

…there is in fact not clear and convincing evidence that either Attorney Brock or Attorney Guy had actual knowledge of the subject prior asbestos lawsuit or diagnosis, or otherwise committed actual fraud.

In a footnote the Tribunal further states:

Indeed, upon the Tribunal’s careful consideration of all such evidence, there is no credible or otherwise persuasive evidence that either such attorney actually committed fraud.

Based on the Tribunal’s findings, the Bar even joined the motion to dismiss the complaints, stating that:

disbarment of, or other disciplinary action against, either of the two respondents is inappropriate under the circumstances.

Here is the Bar’s Joinder to Motion to Dismiss Complaints.

My Take:

It’s not easy to write a blog post when you can’t stop singing to yourself: “I’ve been working on the railroad, all the live long day.” Thank god I don’t remember any other lines of that song.

It’s hard to read this as meaning anything other than the jury got it wrong. Just another reminder that jury trials are crap shoots.

What ever happened to the days when mass tort lawyers drank together, golfed together, “played” together and made sure that in the end, everyone got paid?