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Two Quiet Weeks: Supreme Court Decisions Lists for 7/30 and 8/6

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.

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