Out of balance?

by Becky Gillette

Published: October 20,2008

Each of the nine candidates for the Mississippi Supreme Court will tell you that it is vitally important that the state’s highest court be fair and impartial. But some of the candidates claim the present Supreme Court has a bias towards big business.

“Any lawyer who reads the Supreme Court opinions knows what is going on in this state,” said incumbent Supreme Court Justice Chuck Easley, whose is running against David Chandler for District Three, Place One, which is in the northern part of the state. “If you want a fair Supreme Court, go to another state. This court is bought and paid for. My opponent is bought and paid for. Just look at his financing from special interest groups. Special interest groups are running ads for him. He is going to spend $1 million in soft money.”

Easley called the tort reform group Mississippians for Economic Progress (MFEP) “as sleazy as they come.” On its website, MFEP is described as a coalition of associations, businesses, and individuals who share the same common interest in civil justice reform in Mississippi.

“Through hard work and dedication, we are making changes and Mississippi is now open for business,” MFEP says.

“Special interest groups feel like the Supreme Court of Mississippi is for sale,” Easley said. “It is a shame. But I’m not for sale. The voters know that.”

Easley’s negative comments about the Supreme Court have drawn criticism from University of Mississippi law professor Kyle Duncan. Duncan said he was disturbed by Easley’s comment that “the working man and woman doesn’t have a chance” and that “the court stinks.”

Duncan said such remarks are degrading.

“Notice that Justice Easley does not refer to a single decision or principle of law to support his view,” Duncan said. “Instead, he frames the issue in the purely political terms of class warfare.”

Duncan said Supreme Court judges are not “pro-business” or “pro-plaintiff.” They do not represent special interest groups.

“In fact, they represent no one,” Duncan said. “Their sole task is to impartially apply laws written by a separate branch of government, the Legislature, a branch that actually represents the people of Mississippi.”

Duncan recently completed a report for The Federalist Society in which he reviewed the court’s work for the past four years and beyond. His opinion is that the Supreme Court has been quite restrained in how it interprets Mississippi’s laws and Constitution. He said that does not mean the Court is either “conservative” or “liberal,” but it does mean that the Court has been more and more unwilling to substitute its own policy views for those enacted by the people of Mississippi through their legislators.

“I take it with a huge grain of salt when people start talking about the court as pro-big business,” Duncan said. “When I hear people make accusations that a federal or state court is in the pockets of big business, or in the pockets of trial lawyers, to me red flags go up because they are talking about the court as if it is a Legislature where you send people to court to represent the big business lobby or the plaintiff’s lobby. But we send people to the courts, and especially the Supreme Court, to impartially apply the law.”

In years past, business groups have claimed that Mississippi was a hot spot in the country for “jackpot justice.” Tort reform proponents said the state’s business climate was being hurt because it was a destination for large, class action lawsuits that sometimes resulted in huge jury awards. The state passed tort reform legislation in 2004 designed to tighten up the tort system, limiting how claims are brought and putting a cap on non-economic damages.

Duncan said when the Supreme Court interprets the new laws in a fair way, that doesn’t make the court pro big business.

“The Court is applying a law that the people of Mississippi wrote through their Legislature,” Duncan said. “If people don’t like way tort reform works out, they can change it. What we are talking about here is the role of the court in interpreting the law.”

Another candidate for Supreme Court, Gene Barton, who is running against Ann Lamar for the Central Mississippi position (District Three, Place One), says the Supreme Court should be fair and just. But large contributions from special interest groups can create the impression that the Supreme Court is a vehicle to promote businesses.

Barton expressed concerns about the large amounts of campaign contributions Lamar is receiving from medical community. He saw a letter from a medical association urging every doctor in the state to donate $1,000 to Lamar’s campaign.

Barton said he doesn’t like being portrayed as “a vicious trial lawyer” when he is not against business.

“But the court system is not for economic development,” he said. “It is for justice.”

Interestingly enough, a retired attorney who primarily represented corporations during his career, Alex A. Alston Jr. of Jackson has done a study of the Supreme Court rulings in the past 4.5 years and found that an “astonishing” 88% of all jury verdicts in favor of wronged victims have been overturned. Alston, a former president of the Mississippi Bar, said over the same 4.5-year period, the success rate for plaintiffs in reversing a jury verdict is zero.

“The defendant corporation, hospital, or insurance company prevailed in 100% of these cases,” Alston said in an op ed opinion piece in the Clarion Ledger. “It is difficult to imagine victims of negligence and fraud losing 100 percent of the time, but that is the way it is in the state Supreme Court in a plaintiff’s appeal.

“The U.S. Chamber of Commerce and insurance companies should be ecstatic over this state of affairs. Think of the money it saves the insurance companies not to pay a claim, knowing they are safe with the state Supreme Court.”

Alston said to expect the U.S. Chamber of Commerce, a lobbying arm of big business, to pour millions into the current Supreme Court races “to close any chance of victory for a poor maimed victim who has successfully worked his way through the judicial system to the Supreme Court. It is only then that these powerful entities will have a complete victory over anyone bold enough to think he has a claim for negligence or fraud.”

Duncan response is that the Supreme Court’s role is to determine if the lower court ruling followed the law. If, for example, a tort claim fell outside of the time limit, then the court has no choice but to rule against the plaintiff.

“Perhaps more than any other public official, judges are tempted to extend their power, in order to solve, directly and creatively, the pressing matters of justice in the cases before them,” Duncan said. “If improperly exercised, the judicial power distorts the balance of governmental authority in favor of our least-accountable officials.”

Duncan said that under the guise of technical rules of statutes, activist courts may subtly rewrite laws to further the judges’ own policy preferences. But his review of the court’s statutory interpretation decisions over the past four years shows that the Mississippi Supreme Court has taken a more restrained approach.

“It is particularly evident with respect to a statute such as the Mississippi Tort Claims Act, a law that makes hard choices in painful cases — just those cases in which activist judges are tempted to do ‘justice’ in disregard of the law’s terms and the judges’ own legitimate power,” Duncan wrote in his paper published by the Federalist Society at www.fed-soc.org. “For example, University of Mississippi Medical Center v. Easterling presented the wrenching case where, after an infant died following a laparotomy, the mother’s claim was dismissed because she failed to comply with the 90-day notice provision of the Mississippi Tort Claims Act. Overruling the circuit court’s softening of the notice provision, the Mississippi Supreme Court ruled that “strict compliance [with the 90-day rule] was required.” The court overruled a prior decision allowing ‘substantial compliance with the rule’.”

Duncan said the court resisted the temptation to bend the law in the face of tragic facts.

Contact MBJ contributing writer Becky Gillette at 4becky@cox.net.

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