Thursday, May 26, 2011

Very possibly the worst dissenting opinion in the history of Mississippi jurisprudence

Dare v. Stokes (Miss. May 26, 2011) (Kitchens, J., dissenting).

According to the opinion, Dr. Dare has an affair with Mrs. Stokes, followed by the dissolution of the Stokes's marriage. Their property settlement initially says
Husband hereby covenants and agrees that he will not sue, nor file any lawsuit or any legal action in any Court of this State, or in any Court of any jurisdiction, against Wife, or any other person, regarding any matters relating to the dissolution of their marriage, including any suit for any damages, including, but not limited to, alienation of affection.
but husband moves unopposed to modify by removing the language I've bolded. Dr. Dare seeks to intervene, based on his interest in not being sued, but the chancellor (Hon. Marie Wilson) denies.

On appeal, every justice except one is able to figure out that a third party -- let alone, a third party in Dr. Dare's shoes -- has no cognizable interest in the Stokes's divorce settlement.

The only part I can't figure is how this case didn't go straight to the court of appeals.


  1. scary thought-- how easy it would be to find worse majority opinions.

  2. "10 Worst SCOTUS Opinions" is a good parlor game ... I'm not sure I have the mad skillz to meaningfully suggest the 10 worst MSSC ops.

  3. Buck v Bell
    In re Quinnin
    Dred Scott
    Abram v US
    Leo Frank

    Those are my least favorites before I started lawyering. Add in Strickland v . Washington and, honestly, I'd have to think from 1980 on. But quickly off the top of my hid, those are ones I most dislike.

  4. Miss. Sup Court I'd start with Cylde Kennard, and go from there. But the problem isn't lack of skilz, it's too many targets

  5. Bush v. Gore.

    ... It takes skillz to hit that many targets!

    Really, on the civil side, I'm not sure how many ops stick in my craw. That damn Price v. Clark case that eliminated the Legislature's notice-of-claim requirement in med-mal cases. And, apparently, Bluewater Logistics (but that was just silly, not egregious).

  6. damn straight about Bush v Gore.

    I had trouble thinking what "worst hits" from the Rehnquist era. Sort of like picking 5 worst disco songs.

    I just realized I didn't pick any of the substantive due process era cases when I did that last night. Interesting, and I'm not sure I'd change the list-- there have to be 3 open slots for the last 25 years or so, and I agree with you that Bush v Gore gets one of those.

  7. part 1 of 2 long comment....

    Bad Miss cases-- Here's Anderson's (yes, Anderson) dissent in Brown v. State

    "The case in a few words is this: The murder one day. Appellants indicted the fifth day thereafter. The second day after the indictment they were tried and convicted on confessions of guilt whipped and beaten out of them. Four members of the bar had been appointed to defend them; one failed to act at the trial, and one failed to join in the appeal. Those acting failed to object to the major part of the evidence of confessions. Without the confessions the evidence was wholly insufficient to convict.

    "In some quarters there appears to be very little regard for that provision of the Bill of Rights guaranteeing persons charged with crime from being forced to give evidence against themselves (section 26 of the Constitution). The pincers, the rack, the hose, the third degree, or their equivalent, are still in use."

    By "in some quarters" I think Anderson is referring to the 8 in the majority.

    more in the next comment...

  8. part 2

    On rehearing, Anderson picked up Justice Griffith (of Griffith's Chancery Practice fame) who wrote this that Chief Justice Hughes later quoted in his opinion reversing

    On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the so-called trial.....

    The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed, in every matter of detail as demanded by those present; and in this manner the defendants confessed the crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. ...

    Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some mediaeval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.

    The majority? In the reharing opinion, first they argue the point was not properly preserved. Then:

    This rule against self-crimination is not an absolute immunity, but is simply a privilege, though sacred and important, of which the accused may avail himself or not at his pleasure. ...
    Immunity from self-crimination is not essential to due process of law. ...Salutary as the principle may seem to the great majority, it cannot be ranked with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption has never been universally assented to since the days of Bentham, many doubt it to-day, and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. ...

    I would say this mid-30s case was a low point. It drew a 9 vote reversal by the US Supreme Court in 1936.