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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Mississippi Supreme Court decisions for June 4th

To borrow from Garrison Keillor, it was a quiet week in Jackson, at least at the Supreme Court.  The split opinions on yesterday’s Mississippi Supreme Court decisions list both involve concurances by Kitchens in criminal cases, one of which is joined by a majority of the court:

  • Spires v. State is a Justice Dickinson opinion affirming a conviction.  Justice Kitchens concurs.  On one issue, the Dickinson opinion rejects a jury instruction objection because there was no objection at trial, and then goes on to say any error would have been harmless.  On a second issue, the opinion rules that there was no factual basis for another instruction and that its subject was fairly covered by other instructions.  Kitchens concurs to say that the opinion should have stopped on the first issue with procedural bar and not gone on to harmless error analysis; on the second, he says that the opinion should have stopped at “no factual basis” and not gone on to write about whether the issue was covered by other instructions.   Given my dislike of harmless error analysis and “reading the instructions as a whole” as ways of sweeping trial error under the rug, I found myself agreeing with Kitchens.  Justice Graves leaves us with a small mystery by “join[ing Kitchens’s] opinion in part.”  What part?
  • State v. Neal is a Chandler opinion.  Kitchen concurs, joined by Carlson, Graves, Dickinson, and Chandler, and in part by Randolph (which part?).  The concurrence is over an issue about the indictment– it alleged beheading and not murder, and Kitchens notes that indictments should track the statutory language to assure notice of the crime.  Kitchens notes that if there had been a proper motion about this, the trial court would probably have been bound to sustain it.  Anderson’s blog was ahead (cough cough) of me on this one.

The other opinions are all unanimous:

  • A DHS wrongful termination appeal, with a Randolph opinion.
  • A case where a judge mistakenly certified that a partial summary judgment was appropriate for an immediate appeal under Miss.R.Civ.Pro. 54(b); the appeal was dismissed in a unanimous Dickinson opinion.  I kind of wish this one got to the substance (we’ll have to await the other half of the appeal)– the underlying case relates to open meetings issues, and the only issue on the interlocutory appeal was about whether actions at a meeting violating the open meetings act was void.  The Supreme Court had already held the actions were not void in a prior case.
  • A Graves  opinion refusing to set aside a default judgment where the insurance company’s only explanation for not answering (and default was obtained after four months without an answer) was that they’d filed the complaint in the wrong file.  Dickinson “concurs in part and result.”  I’m not sure what he disagreed with– the opinion deals with each prong of the Court’s 3 part test for setting aside a default, and the only one that I think isn’t pretty much inarguable is the “prejudice to the plaintiff” part, which by itself would not support overturing the default judgment.
  • A Judicial Performance opinion reprimanding a Justice Court judge for ex parte contact during criminal cases, a unanimous opinion by Randolph

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