Two cases were decided by the Supreme Court today that vindicated auditor Pickering’s view of attorney general contracts with outside counsel: Regardless of what fictions are used for payment, the funds coming out of the settlement are state funds and must be appropriated by the legislature before counsel can be paid them.
One of the two cases involves Joey Langston, who was paid $14 million in attorneys fees out of the settlement of a tax claim in the WorldCom tax settlement. Out of the proceeds, the state got $100 million and the Children’s Justice Center of Mississippi got $4.2 million.
In the 5-vote majority opinion, Justice Dickinson goes to great pains to say he is not passing on the propriety of Langston’s $14M fee (as does Justice Pierce in a concurrence joined by the others in the majority), but he makes clear that, to get paid, Langston is going to have to get the fee approved by the Mississippi legislature.
Somewhere in the opinion, it is noted that the fee has been disbursed, some kept by Langston, some to another law firm, and a whole lot to the IRS.
Ouch.
There’s a 3-vote dissent by King (joined by Justice Kitchens and Justice Chandler); Justice Carlson sat it out.
The other case involved the Microsoft fee, and essentially follows the logic in the WorldCom/Langston case.
You can read the WorldCom/Langston case here and the Microsoft one here.
So now what?
Is it just an accounting fiction, as King implies? Or does the Leg really have to vote whether to pay Langston $14m?
Cf. “Hell, freezing over”?
Btw, not near as bad as that other supreme court:
“Mr. Blueford was charged under four theories, in decreasing order of seriousness: capital murder (though the state did not seek the death penalty), first-degree murder, manslaughter and negligent homicide.
“The jurors were instructed to consider the most serious charge first and move to the next only if they agreed unanimously that Mr. Blueford was not guilty. In this way, they were to work their way down to the appropriate conviction, or to an acquittal.”
Jury rejects first two, hangs on 3d. Mistrial. S Ct says, can retry on all 4 counts: jury decision on 1st two was interlocutory. Wow. Damn. Wow.
I don’t see where our modern notions of double jeopardy are really valid. Seems to me back in the olden days (pre 1830) that juries weren’t allowed to hang up, and therefore there were more outright acquittals. People just weren’t retried.
In my ideal world, the state would get one shot at convicting you and, unless you caused the mistrial, that would be it. Anything more seems like “double jeopardy” to me.
John Pittman Hey
Say … someone must be running for re-election ….
Anderson, I’ll tell you what happened to me in the school lands case: We took it to the Supreme Court, won there and settled on remand in the Fifth Circuit. But then the legislature had to appropriate the fee, which we had reduced to a judgment. The legislature went a term without funding it, and so we set out to levy on the judgment. We had it on good authority that the legislature’s account for capital building maintenance probably had enough cash in it to satisfy the judgment, and so let it be known we were going to levy there. Somehow, they got it done faced with that.
The point is that I think that Langston is probably going to have to reduce his fee to judgment and then enforce the judgment. He has an agreement, he did the work, but the leg isn’t going to finance it. But reducing it to judgment is going to be problematic. His deal isn’t exactly legal, so does he get a quantum meruit? He didn’t really do that much work as I understand it– he filed suit, cut a deal. A six figure fee, perhaps, but not $14M. So this may be an interesting challenge.
Anderson, that case bothered me, too. The jury had a form that called for them to arrive at a verdict on the greater offense and then move to the lesser. They’d moved through two (as I recall) and hung on the third. They would never have reached the third without a verdict on 1 & 2 according to the instructions.
I concur. The decision is logically absurd and reflects the pro prosecution prejudice of the court.
I also have always had a simplistic objection to retrial. It’s the state that has the burden of proof, that is to convince a jury the defendant has committed a crime beyond a reasonable doubt. A hung jury means they failed to meet their burden. I don’t see why they get to keep trying until they succeed. It’s not the Defendant’s burden to convince the jury he’s not guilty, he’s presumptively not guilty. What am I missing? Suppose you had three hung juries and finally got a conviction. On average you’d have convinced one of four juries. How could that be proof beyond a reasonable doubt?
Realize this is off the ‘headline subject’ – which I do find in and of itself interesting enough for discussion. But as a non-lawyer here, and a fan of reading NMC’s various commentators, I want to pose a question on the hung jury question to those that seem to oppose a retrial. I’m sure that all followed the case a few years ago of retrying Edgar Ray Killen in Neshoba County. He was first tried several decades ago and received a hugh jury result when one of the jurors supposedly claimed she could ‘never convict a preacher’ or some such quote. In comes our current AG (looking, as always, for the closest TV camera) and retries him, in fact with most of the witnesses dead. Ya’ll have problems with that retrial following a hung jury? Just asking – since I tend to agree with your arguments about the government having the burden of proving guilt and not getting a second bite at the apple.
According to someone at Balkinization, this SCOTUS case is also the first 6-3 decision to split on gender lines, coincidentally or otherwise.
James, my problem with the Supreme Court case isnt just the hung jury– I’ve probably spent too much time assimilating conventional versions of the law on double jeopardy and accepted the notion that a hung jury ordinarily does not have d.j. consequences. This one was different because the jury actually had to have reached verdicts to get to the point where they hung. There are other exceptions– because a hung jury life sentence in a death penalty produces a judgment (a life sentence), Bullington v. Missouri holds that d.j. applies.
That said, in the first of those prosecutions in Mississippi, Beckwith, I had a really problem with the speedy trial issues– the indictments dated back to the 60s, and the not-too-fancy footwork (as I recall, that the defense had help from folks on the state side in jury selection) that supplied the court’s rationale for reviving the prosecution seemed a stretch to me. I didn’t cry any tears over it, though. Lawyers have a rubric that hard cases make bad law, and that would be an example.
I had not given as much thought to Preacher Killen. But, again, I’ve never really questioned the rule that ordinarily, a hung jury does not produce double jeopardy impact. Perhaps I should. Like any properly trained lawyer, my tendency when I see a brick wall (a clearly established rule) is to try to walk around it rather than go through it.
NMC: In LA, state assets are exempt from seizure so a plaintiff is extremely limited in forcing the state (or political subdivison) to pay a judgment. We must go thru the legislative branch and wait their approval.
I was in federal court on a 1983 claim, JWG, which may have made it a different context. Not sure, but that may make a difference for these attorneys fees claims, too.
Gonna be an interesting clawback. There are probably college fraternities with better governance than the State of Mississippi.