Thursday, August 26, 2010

Mee-YOW-zah on the MSSC!

Justice Dickinson's dissenting pen is getting sharper and sharper.

Today brings a curious asbestos case, in which the scope of a settlement was at issue: did it cover certain plaintiffs, or not? On the basis of "conflicting affidavits" from opposing counsel, the trial court ruled that there was an enforceable settlement.

Writing for a three-justice plurality, Justice Graves (whose ticket to the Fifth Circuit has not been stamped yet) says that is just fine. Dickinson is not convinced:
Today’s decision (albeit a plurality) would grant to a trial judge the authority to decide whether or not the parties have settled and, if so, the terms of the settlement. Never mind that in this case, the only proof of a settlement (and its terms) before the trial court was a pair of conflicting affidavits from the lawyers. Never mind that – as far as one can tell from reading the record – the plaintiffs’ lawyer (whose affidavit apparently persuaded the trial judge) has never been in the presence of the trial judge. Never mind that there were no witnesses, and that the trial judge never even heard from the client who actually has to pay the money. And never mind that the terms of the alleged settlement were not reduced to writing – not even so much as bullet points scribbled on the back of a napkin.

So let me see if I have it straight. After today, the plurality’s logic would allow a plaintiff to sue one of our cities – let’s say Jackson or Tupelo – in a slip-and-fall case. The lawyers could then meet to discuss discovery and possible settlement. Plaintiff’s lawyer then could file a motion to enforce a settlement, claiming the city’s lawyer agreed to settle for $25 million. The city’s lawyer files an affidavit saying, “no, we didn’t.” Other than the conflicting affidavits, there is no evidence of a settlement.

Without consulting (or ever even meeting) the plaintiff’s lawyer who signed the
affidavits; and without hearing any testimony from the plaintiff or the city potentially on the hook for the $25 million; the judge ponders the credibility of the conflicting affidavits and finds the plaintiff’s lawyer’s affidavit more believable. So the judge enters an order enforcing the settlement, and the city is on the hook for $25 million. Delighted with the results, the plaintiff’s lawyer files another lawsuit the following week.

After diligent effort, I am unable to imagine a more absurd judicial process or result. I respectfully dissent.
Justice Pierce, "concurring in result only" (with no explanation of why -- Pierce has been weak on explaining himself), writes solely to rebut Dickinson:
I write separately to address Justice Dickinson’s twenty-five-million-dollar hypothetical included in his dissent. Simply put, his hypothetical has no application to the facts of this case. In other words, he compares apples to oranges.
Or peas to beans?

Dickinson shoots back at Pierce in a footnote:
My colleague’s bewilderment with my example reminds me of my college days taking differential calculus – the fact that one doesn’t understand it doesn’t mean it isn’t correct.
Pierce returns fire:
I agree with the dissent’s assertion in footnote number 11 that differential calculus can be extremely difficult. Likewise, some cases that come before this Court are extremely difficult. This case is a prime example.
If the case is so difficult, perhaps it's not too much trouble for the public to think that Justice Pierce could explain why he concurs?

Justice Lamar also writes separately, joined by Waller, C.J., Carlson, P.J., and Dickinson; alas, their four-justice opinion loses to Graves's three-justice opinion thanks to the completely unexplained vote of Pierce and the non-participation of Justice Randolph, so that a tie vote affirms the trial court. Lamar objects to the trial court's acting as finder of fact:
Contrary to the plurality’s assertion that trial judges “customarily make findings of fact” when presented with motions to enforce settlement, and that this Court has “not found such trial court action to be improper,” I find no Mississippi Supreme Court cases in which this Court actually has been presented with this question.
The Fifth Circuit is sure going to be an interesting place with Judge Graves on it.

(I'm not sure that going to a Holmes County jury would've done the defendant much more good, btw.)

... In another instance of apparent pettiness [but, see update below], Waller writes on a banishment case, and Graves specially concurs to say only this:
The majority correctly notes that the U.S. Constitution addresses the deprivation of liberty without due process of law. (Maj. Op. at ¶10). See U.S. Const. amends. V, XIV. Hence, the statement in the majority opinion that “the judge may not restrict the defendant’s personal liberty of free movement without following the due process which Cobb, McCreary, and Mackey established” is erroneous. (Maj. Op. at ¶26). These cases did not establish a right. They merely recognized one which already existed.
When he's right, he's right. This op is joined by all six of the other justices who joined Waller's op for the Court, but Waller apparently refused to amend his opinion to get the law right.

Based on my law-clerk observations of the Justice McRae days on the Court, I hazard a guess that this kind of contention on the printed page betokens a similar lack of good personal relations. It doesn't bode for confidence that one's case is being decided on the law.

UPDATE: Will Bardwell reads Waller more charitably:
Justice Graves is right, of course, but I took the chief justice's observation to mean that Cobb and its companions established the process governing restrictions of the right to movement and not the right itself. But at the end of the day, it's a pretty academic debate.
Good reading, but as I commented at Bardwell's post, there's being right, and then there's being right in such a manner that all the justices joining your opinion think you should've worded it differently. Just change the damn sentence, in the latter instance.


  1. The decision should have read: "Per curiam. The decision of the Circuit Court is affirmed by an equally divided Court." There was no need for, and there is no precedential value in, the scribblings of any of the justices.

  2. They feel compelled, it seems.

    But you are right: "a plurality vote does not create a binding result." Churchill, 619 So. 2d 900, 904 (Miss. 1993).