NMissCommentor

I’ve already posted about the Mississippi Supreme Court opinion in the Jones, Funderburg case (and one reaction to it) from last Thursday’s decisions list.  There are several more opinions; I’m going to hold comment on one about state government and about a criminal case with a short order; below are comments about what I see in the others.

One of the cases involves a disagreement within the court as to whether a youth court contempt order against a parent was civil or criminal.  The case can’t be linked directly because the link on the Supreme Court cite points to another case; it’s In re E.K., and can be read with some difficulty at this link.

What happened was this:  E.K., a child, was accused of molesting another younger child.  He in turn asserted that the other child’s mother had molested him.  The youth court ordered E.K. go for an interview.  His mother, P.K., brought him to the interview, then backed out.  She asserted that she did not know there was a court order, although she probably did.  At a hearing about all this before the Youth Court…

The guardian ad litem then addressed P.K. and the court, saying:

I believe that you have clearly and purposely frustrated the attempts for this child to be interviewed by CAC. There’s a purpose for those interviews.here’s a purpose for a child being interviewed alone without the parent being there, so the child is not coached or coerced, so that the child can fully disclose. Number one, I believe that you clearly frustrated on purpose.

Number two, I clearly believe that you would bring up this whole story for your own personal benefit. What I’m asking this Court to do is lock you up today, because you are clearly in contempt of this Court. There’s no question about it. There’s no question about it, and I do believe that you are not going to do anything but try to further frustrate this process. My
recommendation, number one, is that you are locked up today. Number two, I ask that when you are released, that you have no contact whatsoever with this child.

The guardian ad litem further requested that E.K. remain in DHS’s custody; that a no-contact order be issued between P.K. and E.K.; and that  P.K. be made to submit to “psychological counseling, psychological testing, psychological analysis, examination, assessments, whatever.” The guardian ad litem also stated, “I have a fear for
this child’s well-being.”

The prosecutor and the trial judge had a discussion as to whether the request by the guardian ad litem was for civil or criminal contempt, and whether notice
to P.K. was required. The trial judge concluded that “because youth court cases are in fact civil,” that P.K. could be placed in custody, charged with contempt, and jailed for forty-eight hours.

The youth court judge’s view– the fact that youth court cases are civil made this civil contempt– is wildly wrong, and both the majority (by Justice Dickinson) and dissent do not rely on that conclusion. The majority correctly states the standard– that with civil contempt, the person allegedly in contempt must be able to purge themselves of the contempt to obtain release.  Thus, where the contempt punishment is for past conduct, it is inherently criminal contempt.  Even though the majority states the right standard, I think it reaches the wrong result, stating, “we cannot say that the purpose of P.K.’s incarceration was not to ensure the CAC interview was completed, nor can we say that the forty-eight-hour time period was based on anything other than Kelly’s testimony that an interview would be scheduled ‘within a couple of days.’”  The problem I have with that is that nothing about the jailing was designed to tell P.K. what she could do to purge herself from contempt; it was all about punishing her for pulling the child from the interview, earlier.  The 48 hour period, the fact that the order did not tell her what she could do to get out of the trouble all sound to me like punishment for something she’d already done.

Kitchens, in a dissent joined by Graves and partly joined by Pierce (what part he does not say), starts by noting that the Youth Court had no jurisdiction to conduct an interview about the molestation of E.K., and so the order to the interview was void for lack of jurisdiction.  The majority opinion answers this by noting that the Youth Court has jurisdiction over an abused child, and that the Youth Court would have authority to order an interview to determine whether the child’s custodian was implicated in the abuse.

The dissent notes that the punishment for previous conduct with 48 hours in jail was clearly criminal contempt, and finally concludes that an order forcing an interview of a criminal suspect (which E.K. was) raised grave Fifth Amendment concerns.  As stated above, the punishment here seems to me criminal contempt.

Here are some notes on other opinions:

Mathis v. ERA Franchise Systems, Inc. is a Kitchens opinion joined by all who voted that’s about a falling out between owners of a real estate firm.  The circuit judge dismissed the plaintiffs main claims by holding they were derivative in nature and thus could only be pursued by the corporation and not the shareholder.  The one thing I can’t tell from the procedural history is whether the plaintiff was being sued on a guaranty he made as a part of his status as a shareholder; if so, there is a Mississippi case holding that a shareholder can pursue as personal claims those allegating that the corporation was looted in ways that lead to a call on his guaranty.   Otherwise, except for the confusing procedural morass, it’s a straightforward case.

Dalton v. Cellular South Inc. is a Randolph unanimous opinion reversing a summary judgment over a termination of a Cellular South franchise agreement.  The court holds that conflict between termination provisions of the contract render it ambiguous, and that the affidavit about the ambiguity put forth by Cellular South is too conclusory to support a summary judgment.

In Mississippi Bar v Dohauer, a lawyer disbarred for a felony in Louisiana gets reciprocal disbarment in Mississippi.  The lawyer had a client who’d been in two auto accidents; he tried to use the medical records from one accident in both accidents.  For the fraud, he was prosecuted and then disbarred in Louisiana.

Update: I’d said there were a couple of cases I’d comment on later.  One was McDowell v. State. I’ve spent a few minutes reading the various opinions from the Mississippi Supreme Court and the federal court (on habeas) in Gabriell McDowell’s case.  It involves sentending issues under the habitual offender statutes.  The order on this list holds that the trial court was in error for, after McDowell was granted habeas, holding that McDowell should be sentenced as a violent habitual offender. The recent order states that the trial court erred by following a 2002 panel order, which the recent order vacates. The 2002 order is unreported and not on that particular decision list, and so there’s not much to comment upon.