The Mississippi Supreme Court does it again, today in Hartfield v. State (Chandler, J.):
WALLER, C.J., RANDOLPH, P.J., AND PIERCE, J., CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, KING AND COLEMAN, JJ. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KITCHENS AND KING, JJ.
Justice Coleman in his dissent refers six times to the Court’s decision as a “plurality.” Is it,though? Four justices joined in it. Justice Lamar concurs “in part.” Which part? Evidently no one knows, except presumably Justice Lamar.
With five votes, the decision (or parts thereof) would have precedential effect. With four votes, it does not. The question of which part Justice Lamar agreed with is therefore of more than academic (or bloggish) interest.
Why does the Court keep doing this? The opinion could easily be drafted in such a way that Justice Lamar could indicate she joins in (say) parts I, II, and IV. The U.S. Supreme Court manages to do this, as in 44 Liquormart:
JUSTICE STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, VII, and VIII, an opinion with respect to Parts III and V, in which JUSTICE KENNEDY, JUSTICE SOUTER, and JUSTICE GINSBURG join, an opinion with respect to Part VI, in which JUSTICE KENNEDY, JUSTICE THOMAS, and JUSTICE GINSBURG join, and an opinion with respect to Part IV, in which JUSTICE KENNEDY and JUSTICE GINSBURG join.
Failing that, Justice Lamar (for example) could write that she agrees with the plurality except as to _______. TBA does not understand what public good is being served by the present system, which could even lend itself to one justice’s deliberately “concurring in part & in result” to make the decision non-precedential, like the bad old unpublished decisions that aren’t supposed to be issued any more. That is not how the common law is supposed to work.