The court rendered two opinions, one affirming an AT&T appeal of a Public Service Commission rate increase decision, and another a Randolph opinion about unconscionability relating to arbitration clauses in nursing home admissions forms. The Randolph opinion has a lot of discussion of how unconscionability works with form contracts, and has a discussion of what happens when the designated forum for arbitration isn’t doing arbitration any more. Part of the key of the ruling of unconscionability ruling was that the arbitration clause also did other things, such as limit the other parties remedies. In ruling the clause unconscionable, the court cited cases from other states, including cases outside the nursing home context. This decision will come up in other areas. The Court also overruled a couple of cases involving similar language that had reached an opposite result. Graves concurs, reaching a question about whether the patient had actually signed the form, and contending that this was the issue in the petition for certiorari to the Mississippi Supreme Court, and therefore shoudl have been the issue on which the case was decided.
The court also denied rehearing in the Julie Mabus case, which we discussed at length this Spring in two posts (here and here).
Last week was similarly quiet. The one opinion, by Carlson, was a child pornography case. First, there’s an issue about spousal privilege and competency under Miss.R.Evid. 504 (privilege) and 601 (competence). The later presents the concept that, with some very limited exceptions (criminal prosecutions for acts against a child or the neglect or desertion of a child, or when a spouse voluntarily offers the other spouses testimony), spouses cannot be called as witnesses against each other. The court held that possession of child pornography meets the act-against-a-child exception. It then held that privilege did not apply because a statement the wife of the defendant described was made before the couple were married.
There’s also an issue about whether the videos were pornography and whether the statute criminalizing child pornography was unconstitutionally vague. The majority opinion refused to reach this issue because it was not raised in the lower court. Kitchens wrote to concur, contending the constitutionality issue should be reached; in doing so, he was joined by Graves, Dickinson, and Chandler. In explaining why he would reach that question, he writes:
The rights guaranteed under the First Amendment to the U.S. Constitution and Article 3, Section 13, of the Mississippi Constitution are fundamental rights. See, e.g., Gitlow v. New York, 268 U.S. 652, 666, 45 S. Ct. 625, 69 L. Ed. 1138 (1925) (“[F]reedom of speech and of the press . . . are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.”). Likewise, criminal defendants enjoy a fundamental right to due process. See, e.g., Luckett v. State, 582 So. 2d 428 (Miss. 1991). Because the conviction from which Hood filed this appeal stems from conduct implicating the First Amendment, see Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), and because the vagueness argument he presents is, at its core, a contention that he has been denied due process, we should analyze this assignment of error.
From there, Kitchens went on to conclude that the statute was not unconstitutionally vague and therefore the conviction should be affirmed.
The Randolph opinion had an amusing (well, to me) passage, wherein the Court ominously declares,
The drafters of arbitration clauses, who truly seek the benefits of arbitration, including reduction of dispute costs, would be wise to heed the prior pronouncements of this Court, such as:
and then goes on to quote from Justice Cobb’s dissent in Sanderson Farms v. Gatlin.
So, dissenting opinions are now “prior pronouncements of the Court” which we would “be wise to heed.” Or possibly just very, very long dissenting opinions by Justice Cobb. Future case law may clarify this point.
A little more here if anyone cares.
Re: the child porn case, Kitchens’s footnote 8 is a glitch:
Obviously, the high court greatly abrogated this holding, as it relates to desecrations of the American flag, by ruling in 1989 that the First Amendment precludes communicative destruction of the banner. Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d (1989).
Uh, no. Johnson held, 5-4, that flag burning *is* protected “communicative destruction.”
… I wonder how Alan Moore’s Lost Girls would fare under the new decision?
Arbitration, a corporate euphemism for jury negation, may finally be coming unglued. Check out the Minnesota AG’s suit against the so-called “National Arbitration Forum.” (Why he didn’t pursue RICO is a mystery to me; it’s dead on. As far as I can tell he used deceptive trade practices and C/L fraud).
Jury evasion, not jury negation.
I’ve got an arbitration coming up that I fully expect my corporate client to lose vs. the individual plaintiff. I just hope the damages are reasonable and not runaway. We’ll see!
Right Anderson. I’ve completely forgotten the lessons of S.I. Hayakawa’s “Language in Thought and Action.” Age (is my excuse).
I thought Justice Randolph’s opinion on arbitration was a real barn-burner. Anderson made me laugh about the dissent part, as they shout-out Justice Diaz’ dissent in a prior case in the first few paragraphs, too. I think what that line was meant to be was say “did y’all read all those other cases where we threw out most of this contract? And you’re STILL using it?” The very good lawyers at Maxey Wann, who handle a massive amount of these nursing home arbitration cases on the defense side, have no doubt been saying that to their clients for years as well.
I talked to Rae Turner yesterday, the lawyer on the case for the plaintiff, just calling to congratulate him. I see it as a tremendous victory for the plaintiff–something that two years ago would have lost. I believe the opinion to be an extraordinary one from this Court–the fact that it was joined completely by the whole Court (save Justice Chandler, who I am assuming is recused because he deliberated on the case previously at the Court of Appeals) is a very striking. It signals, I believe, that they are fed up with contracts of adhesion.
While I’m not sure that I’m as optimistic as juriscribe, that it may point to disallowing arbitration, it does show that the Court is safeguarding the rights of citizens to be free from what has been a pervasive practice, and previously allowed by the Court.
It appeared to be the same type of “contract” / arbitration agreement that the Court had refused void in whole but rather would only remove the offensive provisions. I applaud this complete 180 turn.
I thought that substantive unconscionability re arbitration agreements had almost been written out of the law.
The peculiar thing about nursing-home agreements is that the prospective resident, almost by definition, is unlikely to be competent to enter into the agreement.
Facilities can be remarkably lax in making sure that whoever’s acting on the resident’s behalf actually has legal authority to do so.
N.b. that Graves is still grumbling about whether the “responsible party” can commit the resident to arbitration of her claims (currently, he can do so if there’s an arbitration *clause* within the admission agreement). I was a tad surprised not to see Kitchens on board there with Graves.