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Banks, Waller promise fair, efficient Miss. Supreme Court

October 1st, 2012 No comments

Mississippi Supreme Court District 1 Candidates Bill Waller Jr. and Rep. Earle Banks touted different kinds of experience Monday as they made their case to about 50 people at a Stennis Capitol Press Corps luncheon.

Waller, the incumbent who serves as the court’s chief justice, said the entire court system has progressed since he was first elected to the bench in 1996.

The last seven circuit court districts that did not originally offer drug courts have either started them or are in the process of doing so, he said. Drug courts serve as an alternative sentencing for those charged with drug crimes. It does not require incarceration but subjects offenders to intense monitoring and drug screening.

Waller said the savings from those 3,000 people being in drug court instead of behind bars amounts to $38 million annually.

“But that’s not the reason to have it,” he said. “The reason to have it is the 350 graduates we have this year have a 70 percent success rate, of not going to prison.” The recidivism rate for those who follow the traditional path of incarceration and release is 70 percent, Waller said.

Expanding the Mississippi Electronic Courts pilot program and setting in place court user-funded pay raises for trial and appellate judges and district attorneys were things Waller listed as improving the efficiency and independence of the state’s courts.

Banks said his 40 years operating a funeral home in Jackson and 20 years as a state representative are proof that he’s a community –minded servant.

“It’s an honor to serve my neighbor,” Banks said.

Banks spent the majority of his speech promising to arrive at the supreme court with fairness and impartiality. “And I will follow the law and be open-minded on every issue, even if it’s one I either supported or opposed as a member of the Legislature.”

Banks also sang the praises of the state’s drug court system. He said he helped fellow Hinds County Rep. Alyce Clarke, D-Jackson, usher the bills establishing the program through the steps needed for passage. “That kind of legislative experience is something I wouldn’t trade for anything.”

If there was any tension between the two, it was when Banks pointed out that his campaign has not taken any money from political action committees. “That’s something we won’t do,” Banks said. “This campaign is about representing people.” Banks said his campaigns for election to the Legislature had accepted PAC money.

Waller has gotten endorsements and the requisite financial contributions from PACs representing almost every business group and trade organization in Mississippi, and from some outside the state.

Waller said that although he has not restricted such donations, he does not know who has or has not given them to his campaign. Keeping track of donors is something he leaves to campaign staff, he said.

“As long as we have elections, you’ve got to pay for the elections and contributions is how you do it.”

Waller has been endorsed by the state Republican Party. Banks, who serves as a Democrat in the House, has been endorsed by the state Democratic Party. Banks called the notion of political parties endorsing candidates in nonpartisan judicial elections “a farce. It is what it is, and it’s the law.”

“I think it’s a fact of life,” Waller said. “We’re in the vote-getting business.”

 

 

Miss. Supreme Court punts issue of damages cap

August 23rd, 2012 No comments

The Fifth Circuit Court of Appeals almost two years ago asked the Mississippi Supreme Court to decide if the state’s cap on noneconomic damages was constitutional.

Thursday afternoon, state justices declined to do so. The question arose out of a personal injury lawsuit against Sears and Roebuck Co.

Plaintiff Lisa Learmonth was awarded $4 million by a federal jury, but that award was modified to conform with the tort cap. Learmonth’s attorneys appealed that modification to the Fifth Circuit, who kicked the issue to the state court for clarification on the cap.

In an 7-1 ruling (Chief Justice Bill Waller Jr. did not participate) justices said that deciding the constitutionality of the $1 million cap on noneconomic damages arising from civil suits would “require engaging in speculation[,] conjecture[,] supposition[,] and
guesswork regarding what amount the jury [may have] awarded in economic damages and
what amount it [may have] awarded in noneconomic damages.”

Justice Jess Dickinson was the lone dissent. In his separate opinion, he said the court’s refusal to settle the cap question based on whether the federal court’s calculations used to arrive at the modified award were factual was to disregard simple math.

“The court deducted all claimed and proven economic damages in the amount of $1,781,094.40 from the total award of $4 million, to arrive at the noneconomic award of $2,218,905.60,” Dickinson wrote. “In third grade, I was asked: “If a farmer has ten apples and sells six, how many apples does he have left? Neither my answer of four apples, nor the district court’s mathematical calculation – according to the majority’s logic – was ‘factual.’”

The entire opinion can be read here.

Supreme Court denies Miss. Power’s rate increase (Updated with clarification)

July 31st, 2012 No comments

Mississippi Power is now 0-2 when it comes to collecting money to pay for its Kemper County coal plant.

The Mississippi Public Service Commission in June denied a 13 percent rate increase that would have generated about $58 million. The company quickly appealed to the Mississippi Supreme Court, which affirmed the PSC’s ruling Tuesday afternoon. The court voted 8-0 to deny the rate increase. Chief Justice Bill Waller Jr. did not participate.

Public service commissioners said in their denial that they would take no action on rate increases until litigation surrounding the plant had concluded. The Sierra Club has the  plant — which the group contends is an expensive and  unnecessary environmental hazard — before a Harrison County chancellor. This is the second legal challenge the Sierra Club has mounted against the facility.

CLARIFICATION AND UPDATE: The Court ruled Tuesday that the company could not raise rates while it appeals the PSC’s rate denial. The appeal itself is still pending. Also, Mississippi Power has issued a statement. Here it is, verbatim:

“While we certainly respect the actions of the state Supreme Court, we view their decision on our motion to grant interim rates as a loss for our customers that will result in increased costs related to the Kemper plant,” said spokesperson Jeff Shepard. “We anxiously await the Court’s decision on our appeal. Our goal, as always, is to do what is in the best interest of our customers while maintaining reliable and safe electric service.

 

Supreme Court deals Hood another bad loss with fees rulings

May 24th, 2012 1 comment

Attorney General Jim Hood’s recent run of bad luck with the Mississippi Supreme Court continued Thursday afternoon.

The court ruled against Hood in separate fees cases related to litigation involving MCI and Microsoft.

In both instances, the court found that the law requires that any outside counsel Hood hires must be paid from his contingent fund or from other funds the Legislature appropriates to his office. Both the MCI and Microsoft cases, the court said in a split decision with partial dissents and concurrences in each opinion, failed to meet that standard.

Auditor Stacey Pickering had sued to reroute the fees payments for outside counsel through the legislative appropriations process.

This is a big win for Pickering, and yet another bad loss for Hood right on the heels of the Supreme Court ruling against him on the pardons issue.

The links to Thursday’s opinions are here and here.

UPDATE: Pickering and Gov. Phil Bryant have issued statements. Pickering’s provides a lot of background, but here’s the pertinent part:

“The Supreme Court agreed that the Mississippi Statute uses the mandatory term ‘shall,’ and we view this mandate as declaratory that all fees paid through contingency fee contracts are public funds and must be appropriated by the Mississippi Legislature. These rulings today are a victory for open government and transparency as well as for the taxpayers of Mississippi.

“These opinions set a clear precedent in Mississippi ensuring that the purse strings of the State of Mississippi are to be controlled by the Mississippi Legislature. These funds are public funds, subject not only to control by the Legislature but also subject to audit by the State Auditor’s Office. I appreciate my predecessor Governor Bryant for his leadership on this issue when it began in 2007, and I am overwhelming pleased with today’s action by the Mississippi Supreme Court.”

And here’s what Bryant, who Pickering noted initiated the original litigation, had to say:

“The money attorneys received for pursuing the MCI case on behalf of the state is public funds, something I have long believed and fought for. The State Supreme Court’s ruling is a welcome sign as we open up this age old process of hiring outside counsel and then paying them excessive amounts of money, in this case $14 million. 

While serving as State Auditor we published a report which looked into the process of paying attorney fees. The report clearly states the Attorney General did not have the authority to enter into such an agreement, because he may only pay private attorneys out of contingency funds in his budget or from other funds appropriated to the office of the Attorney General by the Legislature. I appreciate the work of State Auditor Stacey Pickering in the recovery of these public funds.”

I have a message into Hood’s spokesperson. If/when I get a response, I’ll post it.

SECOND UPDATE: Hood’s statement, in its entirety:

“These opinions by the Supreme Court simply give us direction on how to pay the attorneys that worked on these cases and in future cases. 

“We will implement and follow the law created by the Court.  In this ruling, the Court does not call into question the “validity of the Retention agreement” or the right to the attorneys being paid.  It simply says that the lawyers in these cases could not be paid directly from the defendants, and that money must flow through a state account first. In fact, the Court reiterated the Attorney General’s ability to hire good lawyers to bring important suits on behalf of Mississippi, such as with these cases. 

“The defendants made a claim in Circuit Court that they had negotiated a fee that was $3 million less than that to which they were entitled under the uncontested terms of the contract. On remand, the state will be exposed to payment of that additional $3 million.”

 

Supreme Court denies Hood’s motion to rehear pardons case

May 17th, 2012 No comments

The Mississippi Supreme Court has denied Attorney General Jim Hood’s motion asking justices to reconsider their decison to uphold the pardons of former Gov. Haley Barbour.

The Court, split 6-3, ruled in early March that it had no jurisdiction to review Barbour’s decision, because doing so would violate separation of powers.

The vote denying Hood’s motion for rehearing was 8-1. Justice Bubba Pierce, of Leakesville, was the lone vote to rehear the case. Such motions are rarely granted.

I’ve left a message with Hood’s spokesperson. It’s likely he’ll have a reaction to this at some point this afternoon. If/when he does, I’ll post it.

UPDATE: Hood has released a statement. Here it is, verbatim:

“It is a shame that former Governor Barbour abused the pardon power.  It is even more of a travesty that a majority of the present Mississippi Supreme Court chose not to enforce the clear language in our State Constitution.  The people will have to enforce the law by going through the initiative process to amend our Constitution to prevent this abuse of the pardon power and this travesty of justice from ever happening again.  I pray no person becomes a victim of any of these pardoned criminals.”

Quarles out of Supreme Court race

April 18th, 2012 No comments

Starkville attorney Lydia Quarles has dropped out of the race to replace George Carlson on the Mississippi Supreme Court.

Quarles, who is also a senior policy analyst with Mississippi State’s Stennis Institute of Government, filed withdrawal papers with Secretary of State Delbert Hosemann’s office April 4, according to records there.

Quarles’ withdrawal leaves Batesville lawyer Flip Phillips and Oxford lawyer Josiah Coleman as the two remaining candidates. I have a message in to Quarles at her office. If and when she returns it, I’ll post what she says.

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Court strikes Pascagoula school revenue-distribution law

April 12th, 2012 No comments

In a decision split a couple ways, the Mississippi Supreme Court has struck down a law that requires the city of Pascagoula to distribute tax revenue collected from liquified natural gas terminals and crude oil refineries to all school districts within Jackson County.

Chevron has an oil refinery in Pascagoula, and Gulf LNG has a terminal there.

The city had sued to prevent the all-inclusive distribution shortly after the law was passed in 2007, essentially saying that ad valorem tax revenue collected within the Pascagoula School District should benefit that district alone.

Justice Ann Lamar, writing for the majority, said the law the Legislature passed did not meet the constitutional mandate that a school district’s taxes be collected to maintain “its schools.”

The high court remanded the case back to Jackson County Chancery court. It’s a fairly complicated opinion, with partial concurrences and dissents. Instead of trying to explain it all, I’ll link to it. View the entire thing here.

Obviously, though, this is a big victory for the City of Pascagoula and its school district.

Coleman enters Northern District MSSC race

March 21st, 2012 No comments

Defense attorney Josiah Coleman of Toccopola announced Wednesday afternoon that he has qualified to run for the Mississippi Supreme Court seat being vacated by Presiding Justice George C. Carlson Jr.

The seat is one of three in the Northern District. Coleman, whose grandfather J.P. Coleman served as governor, joins Batesville lawyer Flip Phillips and the Stennis Institute’s Lydia Quarles in the race.

Here’s a press release Coleman sent.

Mississippi defense attorney Josiah Dennis Coleman of Toccopola announced today that he will be a candidate for the Mississippi Supreme Court; District 3, Place 3.  He has qualified with the Secretary of State’s Office.
 
“The principles of our democratic and constitutional form of government demand the careful safeguarding of liberty.  My campaign for Supreme Court will be about legal integrity,” stated Coleman.  He added, “I believe appellate judges should not act to make public policy as though they were members of the legislative branch of the government.  Rather, the job of our courts is to fairly apply properly enacted law to the facts of the cases before them.”
 
“Mississippi’s courts must be impartial and consistent in reviewing cases, as it heavily impacts the people in our state,” continued Coleman.  “As a Supreme Court Justice, I will ensure that our laws protect our families and businesses and that Mississippi is a place where fair and swift justice prevail, so as to not threaten the life, liberty, and property of the people.  By upholding the values of due process and submitting to the law, I want to prevent unnecessary multiplication of expense and effort to litigate disputes in Mississippi.”
 
Coleman has a family history of public service, as he is the son of Mississippi Court of Appeals Judge Thomas A. Coleman and the grandson of Governor and Fifth Circuit Judge J.P. Coleman.  In addition, his mother, Dr. Frances Coleman, dedicated 30 years to instructing Mississippi’s students as a public school teacher in Choctaw County.  
 
Over the last 10 to 15 years, many people in Mississippi have devoted themselves to making sure that Mississippi’s courts are fair and impartial, and Coleman, as a Supreme Court Justice, will act with diligence and impartiality to ensure their work continues to last.
 
“I am running for this position because I believe in the rights that all Mississippians have before the courts of this state, and my dedication to ensuring those rights, equipped with the skills and gifts to serve our state, makes me the ideal candidate for the Supreme Court,” Coleman said.  
 
Coleman grew up on his grandfather’s farm where he was first introduced to hard work and perseverance, leading him to graduate valedictorian from Ackerman High School.  He attended The University of Mississippi, where he graduated cum laude and received a Bachelor of Arts Degree in History and Philosophy in 1995. Upon graduation, he worked for the Mississippi Secretary of State.  Later he attended and graduated from The University of Mississippi School of Law, where he served as Treasurer of the Moot Court Board.
 
After graduating from law school in 1999, Coleman clerked for United States Magistrate Judge Allan Alexander.  Following his clerkship, Coleman entered private practice.  His practice has emphasized defense litigation, including the defense of physicians, hospitals, businesses and individuals throughout Mississippi.  He currently works for the Oxford firm of Hickman, Goza, & Spragins.
 
Coleman is a member of the Mississippi Bar Association, the Mississippi Defense Lawyers Association, Lafayette County Bar Association, American Inns of Court, Pontotoc County Firefighters Association and has been admitted to practice before the United States Court of Appeals for the Fifth Circuit, all United States District Courts in the state and all State Courts in Mississippi. 
 
He resides in Toccopola in Pontotoc County where he is an active volunteer firefighter and a Deacon at College Hill Presbyterian Church in Oxford.  Coleman is married to the former Ashleigh Allison Burke of Columbia, South Carolina and they happily await the arrival of their first child in April
.

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Hood: Justices in the majority have to agree: Barbour pardons an abuse of power

March 9th, 2012 No comments

Attorney General Jim Hood entertained questions from reporters in his office Friday afternoon about the Mississippi Supreme Court’s decision to uphold the scores of pardons issued by former Gov. Haley Barbour.

He didn’t reveal much beyond what he said in a statement Thursday afternoon. He was disappointed with the ruling. He thinks it sets a dangerous constitutional precedent regarding the separation of powers among the three branches of government. And, he plans on pursuing a ballot initiative to strengthen the newspaper publication requirement related to the pardon process.

Hood did say that if various victims’ rights and law enforcement organizations would prefer a pardon review board be put in place — something several states have — instead of using the ballot initiative to simply force the state’s high court to enforce the publication clause, he would go along with that. He also said more than once that folks who think that Barbour was within his rights to issue as many pardons as he did, would be hard-pressed to deny that it wasn’t an abuse of power.

“Even the justices who voted with the majority realize that,” Hood said.

As for the initiative, Hood wasn’t sure which ballot would be the earliest the initiative could potentially be on. With roughly 120,000 signatures from the five old Congressional districts needed, it would be impossible to get the issue before lawmakers for them to put on November’s ballot before the session ends in late April. After November, Mississippi’s next statewide election will be in 2015.

There is one remedy still available to Hood. He could file a motion for re-hearing, which would entail asking the same court that ruled against him Thursday to reconsider its decision. Hood didn’t slam the door shut on that possibility; he didn’t sound very likely to actually do it, either. Such motions are almost never granted.

State Supreme Court rules Barbour’s pardons are valid

March 8th, 2012 No comments

In its list of hand downs Thursday, the Mississippi Supreme Court upheld former Gov. Haley Barbour’s pardons.

The Court, split 6-3, ruled that it had no jurisdiction to review Barbour’s decision, because doing so would violate separation of powers.

“This case is about whether this Supreme Court has the right, authority, and power to declare itself superior to, and above, both the other two branches of government in all matters of constitutional compliance. While this Court clearly has the constitutional duty to interpret the content of laws passed by the Legislature and executive orders issued by the governor, we decline – as have so many other courts before us – to assume for ourselves the absolute power to police the other branches of government in fulfilling their constitutional duties to produce laws and executive orders, unless there is alleged a justiciable violation of a personal right,” Justice Jess Dickenson, writing for the majority, said in the opinion.

In all, Barbour issued 198 pardons, 26 of which applied to inmates who were incarcerated at the time. Some of those 26 received conditional clemency or were released to keep the state from having to pay their extensive medical bills. The others had already completed their sentences, and had been free in some cases for several years.

Attorney General Jim Hood argued that only two dozen or so of the pardoned had met the newspaper publication requirement, which required notice 30 days in advance that an inmate was seeking a gubernatorial pardon. He made that the centerpiece of his argument in January in front of Hinds County Circuit Judge Tomie Green, who issued an injunction temporarily invalidating the pardons, and in early February in front of all nine of the Supreme Court justices. Green’s injunction ordered those who were incarcerated to remain in custody until appeals were exhausted.

Hood concentrated on five inmates who served as trusties at the Governor’s Mansion during Barbour’s time there, all of whom had been convicted of murder. They had already been released from confinement by the time Green issued the injunction. Each was ordered to maintain regular contact with the Mississippi Department of Corrections while the appeals played out. One, Joseph Ozment, remained missing for several days before being found in Wyoming.