Adam Ganucheau’s article on Mississippi Today is the best I’ve read on the IHL board’s hiring of Glenn Boyce to be the next chancellor of Ole Miss. It captures a lot of my thoughts on the process.

I have no opposition to Dr. Boyce, in theory. I like his story. He seems qualified on paper. It was fine to hire him. Just not like this.

My biggest reservation about Boyce is that anyone who would agree to being hired under these circumstances may not be smart enough to handle such a high profile position that oversees a lot of moving parts. He should not have allowed himself to he hired under these circumstances.

I liked this assessment by former Ole Miss Law School Dean Richard Gershon:

“I really am sorry for Dr. Boyce in a lot of ways,” said Richard Gershon, former dean of the University of Mississippi School of Law and current law professor, who tweeted over the weekend that Boyce should resign. “He was put in a position where instead of celebrating his appointment, there’s a lot of dissension. Had the campus had the opportunity to meet him as was set forth in the procedures of the IHL, there might have been some disagreement but not this dissension. We’ve now got a much worse situation because they bypassed this input. That’s unfortunate because he could be really good for this university, but he’s starting out behind the curve.”

Exactly. He’s set up to fail. And he let himself be set up to fail.

Boyce had a conflict of interest since he was involved in the hiring process as a paid consultant. If IHL wanted to hire Boyce, it needed to go slower–not faster. It should have taken steps to remove the conflict by reopening the application process, making Boyce apply and interview and return his compensation related to the search. They did none of that.

So people are rightly skeptical:

“The process is obviously flawed,” said Chuck Ross, history professor and chair of African American Studies Program who has taught at the university since 1995. “When you select an individual that was a consultant, that’s very problematic on its own. But why didn’t (the IHL board) feel comfortable putting this person into the process? That calls into question his credentials. The fact they didn’t do that could indicate they didn’t necessarily feel that strongly about his credentials relative to those of other candidates.”

I’m an Ole Miss Law School graduate and Mississippian. I’m not mad about the hiring. I’m embarrassed. It makes us all look dumb. Twelve people on the IHL Board and no one realized how bad this was going to look? Or worse, just didn’t care?

Apparently, there were a lot of applicants for the position. Some were current or former business people, judges, attorneys and politicians. People I don’t know well, but have heard of. They were all competent.

Perhaps their backgrounds made them an unconventional candidate for Chancellor, but they were smart enough to quickly learn the job. Certainly there were good enough candidates so the IHL should not have blown-up its own process and given the position to an insider.

It seems like the IHL liked Boyce the most. Of course they did. They knew him best. But it should not be about who they would like to tailgate with this weekend.

One sure fire way to lose credibility–professionally and personally–is to not do what you say. The IHL said it was going to use a certain process to hire the Chancellor. They didn’t do what they said, in about the worst possible way. The optics are bad for Boyce, but they are terrible for IHL.

Hopefully, current and future IHL members learn from this. Because let’s face it, there’s a good chance they will be looking for another Ole Miss Chancellor within the next few years. Because based on where Boyce is starting, there is a huge chance this does not work out.

I’m going to put the over/under line on Boyce’s tenure at 30 months.

Tate Reeves should be the one having a good time in Washington, D.C. today. He should have taken the appointment to replace Thad Cochran and fought off Mike Espy’s campaign in 2018. He should be in Washington learning, building relationships and biding his time.

It might not be ideal, but it’s not too late. For the good of Mississippi, Tate Reeves should withdraw from the governor’s race and instead run for U.S. Senate in 2020.

Politically, running for Senate looks safer for Reeves than running for Governor. He’s behind Jim Hood in the polls. But he may not even get to Hood with Chief Justice Bill Waller’s entry into the race. Do not sleep on Waller’s chances.

If you see Waller at lunch and greet him, he’s very friendly. You like him. You think he likes you. That’s a gift most of us don’t have. It’s in Waller’s DNA.

I had Waller’s father (the former Governor) as opposing counsel in one case. He was late in his career and could be crusty. But by the end of that case, I loved that man. He was honest, straightforward and endearing. Waller, Sr. once made my all time favorite deposition objection: “What in the hell does that have to do with any damn thing?”

Reeves doesn’t have that. But he doesn’t need it to be a Senator. See, e.g., McConnell, Mitch.

Mississippi needs a powerful senator. Jim Eastland, John Stennis, Thad Cochran, Trent Lott, Roger Wicker, Cindy Hyde-Smith. We are moving in the wrong direction. We’ve replaced powerful senators with empty suits. This is going to haunt us if it doesn’t change.

Wicker doesn’t have it. He is weak and doesn’t understand power. Letting someone else (whether it’s a Texas Senator or Phil Bryant) pick the replacement for Fifth Circuit Judge Grady Jolly proves that.

Word on the street is Wicker doesn’t care about judges. Well then he’s a moron. It’s not about caring about judges. It’s about caring about power. Wicker doesn’t care or doesn’t understand the accumulation and exercise of power.

But what about Reeves? What’s his biggest knock as Lieutenant Governor? That he cares too much about the accumulation and exercise of power. He would be perfect for the Senate. That’s a feature, not a bug in the Senate.

Wicker was just re-elected to a 6-year term, so we’re never getting rid of him.

But Cindy Hyde-Smith has to run again in 2020. That’s the seat Reeves needs to slide into. If necessary, Reeves will have to primary Cindy Hyde-Smith in 2020. But it shouldn’t be necessary. Republican leadership needs to convince her to not run in 2020. She’s not a good fit. She had to draft Roger Wicker to be her mouthpiece in the 2018 campaign. She will never be an influential senator.

Yes, Reeves could probably have that job now if he had wanted it. But that’s water under the bridge.

Change of plans. What’s a terrible mistake attorneys repeatedly make? Forgetting litigation is fluid and not adjusting strategy, tactics and/or valuation as the case proceeds. For Reeves, this is a fluid situation. He should shift his political strategy.

Reeves would be a better senator than governor. His role model should be Mitch McConnell, not Phil Bryant. That’s not a knock on Bryant. He does his thing very well. But Bryant couldn’t be a McConnell. Maybe Reeves could.

Reeves would be a better senator than the ones we have now. He would only have to run once instead of the twice if he had been appointed to replace Cochran. He would not have to run again until 2026. By 2035, he could easily be one of the most powerful men in Washington.

Reeves is a better fit for the Senate. Waller or Hood would be better fits for Governor. Reeves would be a better Republican candidate against Mike Espy in 2020.

That election may not be a replay of 2018. In a presidential election year, black voter turnout should be higher than 2018. Espy needs that to offset where he lost the 2018 race: the Coast. Espy clearly thinks he can beat Hyde-Smith in 2020–he’s already qualified to run.

By the way, Jim Hood needs to spend half his time on the Coast between now and November.

Reeves could score points if he did this right. He could have a press conference and say he’s always wanted to be Governor. But he realizes that Mississippi needs him more in Washington, D.C. So he’s sacrificing his lifetime dream for Mississippi.

Have you seen how old U.S. Senators are? Reeves is in his 40’s. He could be in leadership by 60. He would have more power, make more money and never have a serious challenger in an election. It’s a better move for him and Mississippi.

So what are the chances of this happening? None. Mississippi never does the smart thing.

You Haven’t Heard the Truth About the “Landowners Protection Act”

Guest post by: Shanda M. Yates[1]

You have no doubt seen at least one article discussing the “Landowners Protection Act” which is pending before both the House and Senate. But, if you aren’t a lawyer or one of the large corporate sponsors of the bill, have you paid attention? Many supporters of the Act have gone out of their way to convince the public that these bills mean nothing to the average citizen; that your life will not be impacted. Some have even gone so far as to grossly misstate the scope and reach of the proposed bill[2]. However, what you haven’t heard is the truth.

Contrary to what supporters of the Act have been circulating in the media this week, the proposed, overly broad legislation is not needed to protect “innocent property owners” against being sued anytime a crime occurs on their property[3]. Why? Because the current law handed down by the Mississippi appellate courts already does that. Under the current law, claims against a business owner stemming from a third-party criminal assault or attack on the business owner’s property will only survive under very limited circumstances. Such claims are only viable if (1) the property owner knew that the third-party was a violent or dangerous person yet failed to take reasonable action to remove the person from the property or (2) that the property was located in an “atmosphere of violence” and the property owner had knowledge of same yet failed to implement reasonable security measures.[4] Current law also places limits on what is sufficient to constitute an “atmosphere of violence” and even which evidence may or may not be used to establish the existence of same.[5]

In a nut shell, and without any “legalese,” the law currently limits the scope of a property owner’s liability to instances where the property owner failed to act reasonably. That’s right – to avoid civil liability under the existing law a property owner simply has to enact reasonable measures to protect its customers, patrons or tenants. [6] Seems reasonable, right?

Nonetheless supporters and backers of the proposed Act want to remove all liability of a property owner in virtually every context in which a crime is committed on its property. Property owners would no longer have a duty to “act reasonably” to protect its customers, patrons, and tenants from violent criminal activity that it knows is occurring on its property.

If you are still unsure as to whether the proposed Act is a really awful idea, consider a few simple examples that illustrate the overwhelming public safety concerns posed by the ill-conceived and poorly written legislation:

Example 1: Under Section 2(3)[7] of this Act, an apartment complex owner who rents an apartment to a man who has previously raped multiple women would be immune from liability when that same man rapes a young girl in a stairwell of the apartment complex. Even if the apartment complex knew of the man’s prior criminal history when it leased the apartment to the rapist.

Example 2: Under Section2(1)(b)[8] of the proposed Act, the owner of a hotel could turn a blind eye to a child sex-trafficking ring that is being run out of the hotel. Instead of imposing a duty of “reasonableness” on the hotel owner in this situation, the proposed legislation would provide immunity to the hotel owner unless one of the girls who was repeatedly raped on the property could prove that the hotel owner “actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of the third-party.” It would no longer be enough that the hotel owner knew about what was occurring on the property and failed to reasonably react to same. Under the proposed Act, the hotel owner would escape all civil liability unless it could be shown that the owner actively encouraged the young girls’ repeated rapes.

The bottom-line is that the proposed Act is contrary to the general public safety of Mississippi citizens. The proposed Act is overly broad and creates gaping loopholes by which commercial property owners can avoid liability at the expense of Mississippians.

Please contact your state representatives, Tate Reeves, the Lieutenant Governor, Philip Gunn, the Speaker of the House, and Mark Baker, Chairman of the House Judiciary A Committee, and tell them that you do not support this law.

[1] Shanda Yates is currently a partner at Burns & Associates, PLLC. Since 2007 her practice has been limited almost exclusively to premises liability cases, such as those at issue in the Landowners Protection Act. Yates’ practice has been equally divided between representing business owners/operators and persons injured on commercial property. Yates has published articles and taught seminars relevant to maintaining safe businesses. She is an AV-rated attorney, a current member of the Mississippi Association for Justice and is the past editor of the Mississippi Defense Lawyers Quarterly.

[2] “#MSLeg: ‘A gross misuse of your position.’ Meeting over controversial bill ends in shouting,” Clarion Ledger, February 5, 2016

[3] NPR with Mark Baker this morning

[4] See, e.g., Knox v. Kroger, 98 So. 3d 441 (Miss. 2012) (“where an alleged dangerous condition is the threat of an assault, the requisite cause to anticipate the assault may arise from (1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists on the premises.”)

[5] See, e.g., Knox v. Kroger, 98 So. 3d 441 (Miss. 2012) (holding that a plaintiff had failed to offer sufficient evidence of the existence of an “atmosphere of violence” on Kroger’s parking lot where plaintiff only offered evidence of three purse snatchings in the parking lot and failed to offer any evidence of prior violent attacks).

[6] See, e.g., Fenelon v. Jackson MetroCenter Mall, Ltd., 172 So. 3d 760 (Miss. Ct. App. 2012) (holding that “a landowner is not an insurer of the invitee’s safety, but does owe an invitee the duty to keep the premises reasonably safe” and “as a general principle, premises owners are not strictly liable for all injuries occurring on their properties as a result of criminal acts of third parties.”)

[7] Section 2(3) states “Civil liability may not be based on the prior violent nature of the third party whose acts or omissions proximately caused the claimed injury or damage.”

[8] Section 2(1)(b) states: “The conduct of the person who owns, leases, operates, maintains or manages the property actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party”

You Haven’t Heard the Truth About the “Landowners Protection Act”

Guest post by: Shanda M. Yates[1]

You have no doubt seen at least one article discussing the “Landowners Protection Act” which is pending before both the House and Senate. But, if you aren’t a lawyer or one of the large corporate sponsors of the bill, have you paid attention? Many supporters of the Act have gone out of their way to convince the public that these bills mean nothing to the average citizen; that your life will not be impacted. Some have even gone so far as to grossly misstate the scope and reach of the proposed bill[2]. However, what you haven’t heard is the truth.

Contrary to what supporters of the Act have been circulating in the media this week, the proposed, overly broad legislation is not needed to protect “innocent property owners” against being sued anytime a crime occurs on their property[3]. Why? Because the current law handed down by the Mississippi appellate courts already does that. Under the current law, claims against a business owner stemming from a third-party criminal assault or attack on the business owner’s property will only survive under very limited circumstances. Such claims are only viable if (1) the property owner knew that the third-party was a violent or dangerous person yet failed to take reasonable action to remove the person from the property or (2) that the property was located in an “atmosphere of violence” and the property owner had knowledge of same yet failed to implement reasonable security measures.[4] Current law also places limits on what is sufficient to constitute an “atmosphere of violence” and even which evidence may or may not be used to establish the existence of same.[5]

In a nut shell, and without any “legalese,” the law currently limits the scope of a property owner’s liability to instances where the property owner failed to act reasonably. That’s right – to avoid civil liability under the existing law a property owner simply has to enact reasonable measures to protect its customers, patrons or tenants. [6] Seems reasonable, right?

Nonetheless supporters and backers of the proposed Act want to remove all liability of a property owner in virtually every context in which a crime is committed on its property. Property owners would no longer have a duty to “act reasonably” to protect its customers, patrons, and tenants from violent criminal activity that it knows is occurring on its property.

If you are still unsure as to whether the proposed Act is a really awful idea, consider a few simple examples that illustrate the overwhelming public safety concerns posed by the ill-conceived and poorly written legislation:

Example 1: Under Section 2(3)[7] of this Act, an apartment complex owner who rents an apartment to a man who has previously raped multiple women would be immune from liability when that same man rapes a young girl in a stairwell of the apartment complex. Even if the apartment complex knew of the man’s prior criminal history when it leased the apartment to the rapist.

Example 2: Under Section2(1)(b)[8] of the proposed Act, the owner of a hotel could turn a blind eye to a child sex-trafficking ring that is being run out of the hotel. Instead of imposing a duty of “reasonableness” on the hotel owner in this situation, the proposed legislation would provide immunity to the hotel owner unless one of the girls who was repeatedly raped on the property could prove that the hotel owner “actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of the third-party.” It would no longer be enough that the hotel owner knew about what was occurring on the property and failed to reasonably react to same. Under the proposed Act, the hotel owner would escape all civil liability unless it could be shown that the owner actively encouraged the young girls’ repeated rapes.

The bottom-line is that the proposed Act is contrary to the general public safety of Mississippi citizens. The proposed Act is overly broad and creates gaping loopholes by which commercial property owners can avoid liability at the expense of Mississippians.

Please contact your state representatives, Tate Reeves, the Lieutenant Governor, Philip Gunn, the Speaker of the House, and Mark Baker, Chairman of the House Judiciary A Committee, and tell them that you do not support this law.

[1] Shanda Yates is currently a partner at Burns & Associates, PLLC. Since 2007 her practice has been limited almost exclusively to premises liability cases, such as those at issue in the Landowners Protection Act. Yates’ practice has been equally divided between representing business owners/operators and persons injured on commercial property. Yates has published articles and taught seminars relevant to maintaining safe businesses. She is an AV-rated attorney, a current member of the Mississippi Association for Justice and is the past editor of the Mississippi Defense Lawyers Quarterly.

[2] “#MSLeg: ‘A gross misuse of your position.’ Meeting over controversial bill ends in shouting,” Clarion Ledger, February 5, 2016

[3] NPR with Mark Baker this morning

[4] See, e.g., Knox v. Kroger, 98 So. 3d 441 (Miss. 2012) (“where an alleged dangerous condition is the threat of an assault, the requisite cause to anticipate the assault may arise from (1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists on the premises.”)

[5] See, e.g., Knox v. Kroger, 98 So. 3d 441 (Miss. 2012) (holding that a plaintiff had failed to offer sufficient evidence of the existence of an “atmosphere of violence” on Kroger’s parking lot where plaintiff only offered evidence of three purse snatchings in the parking lot and failed to offer any evidence of prior violent attacks).

[6] See, e.g., Fenelon v. Jackson MetroCenter Mall, Ltd., 172 So. 3d 760 (Miss. Ct. App. 2012) (holding that “a landowner is not an insurer of the invitee’s safety, but does owe an invitee the duty to keep the premises reasonably safe” and “as a general principle, premises owners are not strictly liable for all injuries occurring on their properties as a result of criminal acts of third parties.”)

[7] Section 2(3) states “Civil liability may not be based on the prior violent nature of the third party whose acts or omissions proximately caused the claimed injury or damage.”

[8] Section 2(1)(b) states: “The conduct of the person who owns, leases, operates, maintains or manages the property actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party”

Judge Primeaux wrote this week about a case pending before the Mississippi Supreme Court over whether judges can ban guns from their courtrooms.

How can that even be a question? Judges can ban phones, gum, food, shabby clothing and a host of other things from their courtrooms. But not GUNS? Gees.

Here is my post last year on this topic, which generated a lot of comments, including some by attorneys who disagree with me on this issue.

I agree with Judge Primeaux:

Whether to ban guns entirely as the chancellors did in the Fourteenth should be a judgment call by judges on the ground who are familiar with their courthouse situations, the types of cases that they handle, and the people who come before them. In our courthouses there is adequate, well-armed security. If they are ever called upon to draw their weapons to deal with a deadly situation, I would hope that they don’t have to stop to figure out which armed people are the “good guys.” That hesitation could be fatal.

Personally, I already have enough anxiety in court without worrying about getting hit by a stray bullet.

According to this Larrison Campbell article on Mississippi Today, some of the Mississippi legislators who voted for the Jesus hates gay people ‘Religious Freedom Bill’ sound like they already have buyer’s remorse. So they’ve decided to play dumb and claim that despite the national clamor over similar bills in other states, they thought the global business community was cool with Mississippi hating on gay people.

Uh, sure thing Cruiser.

Former Governor Ronnie Musgrove published this story on Huffington Post yesterday accusing the IHL Board of firing University of Mississippi Chancellor Dan Jones because he doesn’t like the Butler Snow law firm. Really. I did not see this one coming.

From the article:

Since Jones’ hiring, [Gov. Haley] Barbour has taken two highly lucrative positions. Without missing a beat, he returned to his pre-gubernatorial position as head of Washington, DC lobbying firm, the BGR Group. He also took an equity position at the law firm, Butler Snow, in Ridgeland, MS – a suburb of the state’s capitol of Jackson.

When Barbour left office, Butler Snow was the third largest law firm in town. Since then, Butler Snow has taken hundreds of millions of dollars in state contracts. Now they are one of the largest firms in the nation…..

Butler Snow could be considered the ‘for-profit’ arm of our state government…..

Hundreds of millions – if not billions – flow through their hallowed halls in legal fees for health care contracts, research grants, bond issuances, buildings contracting, the list is too long to count. Even in a poor state that chronically underfunds education, we’re talking a mountain of untapped billable hours for a firm like Butler Snow.

Dan Jones was standing at the gates of a gold mine, but he wasn’t a Butler Snow man. He wasn’t a Barbour or Bryant man.

My Take:

If nothing else, this is a great article for Butler Snow. If the firm is perceived to be that powerful, this will drive even more legal work their way.

But I don’t buy the conspiracy theory. It sounds more like sour grapes. It would be kind of like Burger King telling you why McDonald’s sucks. Consider the source.

Start out with the fact that Gov. Musgrove is also now a private practice attorney who is a competitor of Butler Snow. Assuming that everything he says is true, would he do anything different if this was a Democratic controlled state and he had the influence that Barbour has? Hasn’t Gov. Musgrove used his connections and influence to get business?

That’s what big law firms do. They hire people with influence who they hope will bring business to the firm. Not only is that how things work, there is nothing wrong with it.

Musgrove didn’t have a problem taking a job with Copeland Cook. And I bet he used his contacts and influence to bring in business for that firm and his current firm.

Also, there is too much exaggeration here. Yes Butler Snow has transitioned itself from a Mississippi law firm to one with a national presence. With over 300 attorneys, it’s a big firm. But you’d have to have a very loose definition to call it one of the largest firms in the nation. Maybe it will get there. Hell, I hope so. It would be great for the Jackson area.

But right now, Butler Snow is a growing regional firm with a national presence. The firm has done an amazing job of not only weathering the Mississippi legal industry depression, but thriving while other firms struggle to remain alive.

I’m not sure how much credit Haley Barbour should get for that. It seems to me that the wheels were already in motion before Barbour arrived. I’d give most of the credit to Don Clark and the rest of the firm’s leadership, along with “female powerbroker” Christy Jones building a national litigation practice.

A few weeks ago, someone emailed me that a Butler Snow lawyer had lost a big trial in Philadelphia. My response was “that’s impressive.” “That they lost?” “No, because it’s big time for Mississippi lawyers to be trying cases in the Northeast.” There is no shame in losing a trial. It’s impressive that they were in that game.

I don’t know how much legal work Butler Snow gets from government related work. But I know enough about law firm economics to know that its not billions or hundreds of millions of dollars. If Butler Snow is getting billions of dollars in legal fees through State contracts–and it’s not–why would it need to get Dan Jones fired? Wouldn’t this argument make more sense if Butler Snow was getting no work from the State?

Not to mention the fact that IHL Board Member Alan Perry is an attorney who has always worked for big law firms that compete with Butler Snow. Why in the world would he want to fire Jones just to help one of his firm’s biggest competitors?

I agree that the Jones firing wreaks of politics. But it’s a political appointment. So that’s going to happen.

I don’t have an opinion yet on the Jones firing. Except for the Haley Barbour – Butler Snow angle. I’m not buying that one.

Last week Harrison County Chancery Judge Jennifer Schloegel ruled that State Auditor Stacey Pickering and his office were in contempt of court for improperly withholding public records from the Sun Herald. Here is the Sun Herald article on the latest ruling in the case.

In addition to the contempt ruling:

Judge Jennifer Schloegel also ordered Pickering, his office and the state Department of Marine Resources to pay the more than $36,000 in attorney fees the newspaper incurred in its 19-month battle to see the documents related to its investigation of possible wrongdoing at the DMR in Biloxi.

Schloegel also fined Pickering, Attorney General Jim Hood and auditor investigator David Huggins, audit special agent Chris Lott and assistant attorneys General Melissa Patterson, Joseph Runnels, Sandra Chesnutt and Harold Pizzetta $100 each for their roles in the “willful and wrongful denial” of the public-records request by the paper.

Pickering and his office come out looking bad:

“This conduct rises to the level of abuse of the grand jury process and warrants actions against the auditor.”

Pickering’s office seized the records Jan. 15, 2013, and moved them into another room of the Bolton Building in Biloxi, which the auditor’s office shares with the DMR and other state agencies.

As does General Hood:

“General Hood curiously stated it might be very embarrassing for a chancery judge to be admonished by a federal judge should the assistant U.S. attorney charge the chancellor with obstruction of justice and contempt of a grand jury subpoena,” Schloegel wrote about the phone call. “General Hood’s hypothetical regarding criminal charges against the undersigned chancellor and other remarks reinforced General Hood’s clear intent not to seek to mitigate the contempt of his client, the auditor, and furthermore, raised questions of his own role, the role of the Attorney General’s Office and the role of the defendants and their employees in the issuance of the federal grand jury subpoena and the wrongful removal of the records from state court jurisdiction.”

Things fell apart for Hood and Pickering when U.S. District Judge Keith Starrett also ordered the release of the DMR records.

Normally people like to see Democrats and Republicans working together. But bipartisan stupidity is not what we had in mind.

My prior posts on this case are here, here and here.