Miss. S. Ct. takes another stab at protecting privacy of sensitive data in online filings

In April 2015, the MSSC promulgated MRCP 5.1, which put redaction requirements on parties electronically filing pleadings with certain data: “an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number.”

This apparently did not play out well in the field, because the Court suspended the order five weeks later. Now, we get offered for comment Rule 5.1 two-point-oh. This time, the duty is on the clerks’ offices: Continue reading

Miss. S. Ct. wants input on rules changes, but perhaps not from just anybody

Judge Primeaux, who in a more sensational age would be billed as The Amazing Blogging Chancellor!, posts this:

The MSSC’s internal committee on rules of civil procedure has sent out a letter soliciting comments and suggestions for changes to the MRCP. Deadline for comments is in December.

The letter, which was addressed to various constituent groups, appellate judges,the chairs of the trial court conferences, and others, said that the committee, consisting of Justices Dickinson, Randolph, and Coleman, intends to do a thorough study of the rules, review suggested changes, and re-draft the rules as the committee deems appropriate. Changes would then be sent to the court’s rules advisory committee for study and further work.

An upcoming article in the Mississippi Lawyer will provide further details.

So, I guess if you got a copy of this letter, your input is desired. Otherwise, perhaps not. We will just have to await the upcoming article.

Framing the issue: a couple of examples

Justice Dickinson is in fine form in today’s dissenting opinion in Windless v. State, where the capital defendant challenged his conviction for failure to instruct the jury on the elements of the aggravating offense of larceny:

Simply put, I dissent because there is no way the jury properly could have found beyond a reasonable doubt that Anthony Windless intended to commit a larceny without knowing the elements, under Mississippi law, of larceny. Trial courts are not required to instruct juries on the meaning of every word in the English language. But the crime of larceny is not universal. For instance, the statutes in some states have broadened the common-law elements of larceny—which, themselves, were never provided to the jury— to include such other crimes as false pretenses and embezzlement, while others (including Mississippi) have not. The abridged ninth edition of Black’s Law Dictionary defines fifteen different kinds of larceny, each with its own definition. What is worse, Mississippi statutes—which, by the way, include no crime called “larceny”—list fourteen different statutes that make certain defined larcenies. Which larceny statute applied in this case? Neither the jury nor a single justice on this Court knows. To assume, as does the plurality, that the jury understood the term “larceny” with no instruction from the trial court is, in my view, indefensible.

Obviously, the plurality disagreed, but that is a good example of framing an issue.

Another such example is the “Questions Presented” in a cert petition granted today by the SCOTUS. All cert petitions have to have a “Question Presented” up front, to indicate what issue the Court is asked to decide, and given how many cert petitions are filed, it’s best to have one that makes a good case. TBA thinks this one sounds pretty good (via Kimberly Robinson):


Ya think there might be a problem there?

The Mississippi initiative(s) 42 ballot could be a mess (UPDATE: by design)

Seen on Facebook:


If this is the real ballot (minus the red circles, supplied by a 42 supporter), it rivals the Palm Beach County butterfly ballot. What are the vote-counters going to do with ballots where “against” is filled in as well as one of the bottom circles? Because they’re going to happen. The ballot tells you to do that: “AND VOTE FOR ONE.”

I really hope this isn’t the actual ballot. There may be official sample ballots on the secretary of state’s website, but I don’t see them.

… Brilliant commenter JH confirms that it really is that bad. Ouch.

… The plot thickens. This bizarre format is actually prescribed by Miss. Code Ann. 23-17-37. (Thx to commenter ABS.) Continue reading

“It’s OK, Counsel. The Constitution makes the same mistake.”

Sylvia Walbolt has a good article, “Twenty Tips from a Battered and Bruised Oral-Argument Veteran.” I liked this anecdote:

Learn how to address the judges. One of Justice John Paul Stevens’s law clerks tells the story of an argument before the Supreme Court in which a very nervous lawyer arguing in the Court for the first time repeatedly referred to the justices asking questions as “Judge.” After being told by then Chief Justice William Rehnquist that it was Justice [Anthony] Kennedy and Justice [David] Souter who had asked the questions, the lawyer called Chief Justice Rehnquist “Judge.” Justice Rehnquist sternly said “Counsel is admonished that this court is composed of justices, not judges.” Justice Stevens took pity and interjected “It’s OK, Counsel. The Constitution makes the same mistake.”

Unless you are so comfortable with the Court that it’s effortless for you to call them by their right names (and titles), “Your Honor” is always the best choice.

Is the trial judge an interested party to an appeal?

Lawyers I’ve asked vary in whether they list the trial judge as an “interested person” in Mississippi appellate briefs. M.R.A.P. 28(a)(1) says to list “all persons, associations of persons, firms, partnerships, or corporations which have an interest in the outcome of this case.”

That typically includes the parties, their counsel, and entities like parent companies. The idea is that an appellate judge who might have a conflict of interest could then consider whether to recuse.

But what about the trial judge? I suppose he has an “interest” in being affirmed, maybe. But it doesn’t seem to be the kind of “interest” envisioned by the rule (firms, partnerships, corporations —-> $$$).

I also note that the rule says that “governmental parties need not supply this certificate,” which seems to imply that the trial judge doesn’t have an “interest” for purposes of the rule, or else why not require it then, too? (Of course, that also seems to imply it’s overkill to list the lawyers, who anyway are on the cover and the certificate of service—not exactly a mystery.)

The parallel federal Rule 28(a)(1) calls it a “corporate disclosure statement” that is limited to parent corporations and publicly-held corporations that hold 10% or more of the corporate party’s stock, which again suggests that any “interest” of trial-court judges is not at issue.

What do you think, Gentle Readers?

… I’m reminded that the local rule 28.2.1 for the Fifth Circuit is broader, but still defines “interested” as “financially interested,” as well as requiring opposing counsel and their firms. No judges, though.

… To put it another way, aren’t judges, by definition, disinterested parties? If the trial judge “had an interest” in the outcome of the case, then what was he doing trying it in the first place?

MSSC misstates its own case law

Today the MSSC issued a decision affirming the way that Medicaid reimbursement decisions usually have been appealed in this state, i.e., to chancery court. Good call.

Unfortunately, the Court’s opinion tripped up in describing an earlier precedent dealing with certificate-of-need orders from the State Health Officer: Continue reading