I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Inquiring minds: When the Supreme Court 4-4 affirms, do they affirm the COA or the trial court?

This quetion arose indirectly because a regular reader was thinking about the topic and a recent Supreme Court case.

Answer, at least in Mississippi:  The court of appeal:

¶ 8. Valley Bank argues that when this Court is evenly divided, the order of the trial court must be affirmed, despite the Court of Appeals having initially reviewed the appeal and found for reversal and remand of the trial court’s order. However, we have made it clear that when this Court is divided evenly, we will affirm the order which we are called upon to review. Rockett Steel Works v. McIntyre, 15 So.2d 624, 624-25 (Miss.1943); Jacobs v. Bank of Winona, 1 So.2d 235, 235-36 (Miss.1941); Robertson v. Miss. Valley Co., 120 Miss. 159, 162, 81 So. 799, 801 (1919); Brewer v. Crum, 111 Miss. 871, 871, 72 So. 700, 700-01 (1916). Even the early opinions from the United States Supreme Court regarding the affirmance of a lower court’s order do not speak to the affirmation of the per se “trial court,” but of the lower court’s order which it is reviewing upon appeal. Robertson, 81 So. at 801-07 (Stevens, J., dissenting) (citing Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 54 L.Ed. 1001 (1910); Hartman v. Greenhow, 102 U.S. (12 Otto) 672, 26 L.Ed. 271 (1880); Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 19 L.Ed. 154 (1868)); Etting v. Bank of United States, 24 U.S. (11 Wheat.) 59, 6 L.Ed. 419 (1826).

¶ 9. When this Court is evenly divided, it must affirm the judgment of the court from which the appeal is taken, even if that judgment is from the Court of Appeals. There is a long standing history in this regard. Other states have historically done the same. In Tate v. Christy, 339 N.C. 731, 454 S.E.2d 242 (1995), the North Carolina Supreme Court held that the decision of the Court of Appeals would be left undisturbed where the participating members of the Supreme Court were evenly divided as to affirmance or reversal. In Pierce v. Pierce, 244 Kan. 246, 767 P.2d 292 (1989), the Kansas Court of Appeals affirmed the trial court’s holding. On review by the Kansas Supreme Court, the justices were evenly divided; therefore, the court affirmed the Court of Appeals, which had affirmed the district court judgment. In Getschow v. Commonwealth Edison Co., 99 Ill.2d 528, 77 Ill.Dec. 83, 459 N.E.2d 1332 (1984), the Illinois Supreme Court ruled that where it was evenly divided on a portion of the judgment, the Appellate Court’s judgment would stand. In Christensen v. Epley, 287 Or. 539, 601 P.2d 1216 (1979), the Oregon Supreme Court was evenly divided on one issue of the case, which had been heard by the Court of Appeals; therefore, the decision by the Court of Appeals on that one issue was affirmed. In Benson v. First Trust & Savings Bank, 105 Fla. 135, 145 So. 182 (1932), the justices of the Florida Supreme Court on second rehearing were equally divided; therefore, the Supreme Court’s judgment on the first rehearing was sustained.
¶ 10. We hold that when this Court is evenly divided, the order or judgment of the court from which the appeal is taken must be affirmed.
Wise v. Valley Bank, 861 So. 2d 1029, 1032-33 (Miss. 2003).
This is apparently how it works in the United States Supreme Court.  In Omega v. Costco Wholesalethe Ninth Circuit reversed a trial court ruling in a copyright infringement case.  The United States Supreme Court granted certiorari, and, in a decision where Justice Kagan did not participate, divided equally.  The result was a 4-4 affirmance leaving the Ninth Circuit decision standing (at least based on what I’ve read).
Updated as noted in comments.


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