Supremely stupid decision – Mississippi Supreme Court bans publication of Justice Diaz's dissent

Acceptance of dissent is the fundamental requirement of a free society.

What, then, does it mean when the Justices of the Mississippi Supreme Court vote to ban publication of Judge Diaz’s dissenting opinion?

Well, take a look and then a guess.

A look at Diaz’s dissent shows he argues the error of the court’s decision that the statute of limitations for wrongful death lawsuits begins at the time of the injury, not on the date of death.

“The obvious result is that a wrongful death action may expire before the decedent does.

“This judicially created rule is without foundation, and frankly, absurd,” he adds in his seven-page document provided to the Daily Journal.

Patsy Brumfield had the story on-line for the Journal but a h/t goes to Y’all for the notice.

Obviously, voting to ban publication of a dissenting opinion is an assault on justice almost beyond comprehension – but so was the majority decision. Not to mention it gave common sense a pretty good whack, too.

What kind of tort reform is it to have folks filing suit for wrongful death while they’re still alive?

Patsy’s story has more details but we are left to guess the thinking behind the decision itself and the subsequent decision to ban the dissenting opinion of Justice Diaz; but, I suspect we’re not missing much.

Something unusual happened Thursday at the Mississippi Supreme Court.

It may be the first time a majority of the justices voted to prohibit a colleague from publishing a dissent in a case.

In other words, Presiding Justice Oliver Diaz of Ocean Springs disagreed with a court decision and wanted to write about it. His fellow judges said, no, he couldn’t and they apparently stopped the court clerk from filing Diaz’s statement into the record.

Diaz’s document also wasn’t made available to the public, as every other order and dissent are.

“My job as a Supreme Court justice is to write opinions and dissents, when necessary,” Diaz said later Thursday. “I was prevented from doing so by a majority of the court.”

Requests for comments were not answered by Supreme Court Chief Justice James Smith, Justice Michael Randolph and Justice James Graves.

The Daily Journal also filed a Freedom of Information request with Court Administrator Jack Pool for a copy of the case decision, and any other paper and electronic documents associated with it.

Pool said he didn’t know how long it would take him to comply with the request.

The case at issue was a wrongful death lawsuit filed by an employee of the court against the Mississippi State Veterans Affairs Board.

The Board apparently appealed a 2006 Hinds Circuit Court decision to the Supreme Court.

Details were sketchy Thursday because the documents weren’t immediately available from the high court. Thursday, Randolph wrote the decision dismissing the appeal, which the court apparently had agreed to hear and then changed its mind.

Justices voting with Randolph against Diaz and Justice James Graves of Jackson were Ann Hannaford Lamar, George Carlton and Jess Dickinson.

Voting to stop Diaz’s public dissent were Chief Justice Smith and justices William Waller Jr., Carlton, Dickinson and Randolph.

Banning a justice from publishing his dissent is highly unusual, said a former state judge, who asked not to be identified.

Diaz speculates it “may be unprecedented in the history of American jurisprudence.”

“I don’t know of any instance this has happened,” said the judge with Supreme Court experience.

Oxford attorney Tom Freeland IV was not so circumspect with his reaction:

“I have been following the Mississippi Supreme Court closely for 25 years and I have never heard of such a thing,” he said Thursday…

Diaz, a former Republican legislator, was appointed to the court in 2000 by Gov. Ronnie Musgrove. He won a full eight-year term later that year. He is seeking re-election this fall, but has strong opposition from Pearl River Chancery Judge Randy Pierce, who appears to be backed by big business and medical interests.

It’s no secret the more liberal Diaz and Justice James Graves from Jackson often disagree with the more conservative majority, but their dissents have not been prohibited until this action.

“It looks like they just didn’t want opposing opinions to be heard,” Diaz added.

To paraphrase historian Henry Steele Commager:

When criticism and dissent are silenced, the power to correct errors is lost.

With Judicial elections just months away, we have the power to correct the errors that occurred today. Names of those voting with the majority as well as those who voted to ban publication of the dissent are in bold type in the article (emphasis added).

11 thoughts on “Supremely stupid decision – Mississippi Supreme Court bans publication of Justice Diaz's dissent”

  1. My vote will be to send Ollie back to the court. What happened today at the State Supreme Court undermines the very foundation of the liberties and principles upon which this country was founded.

    Smith, Waller, Carlton, Dickinson and Randolph are dangerous men, bought and paid for by USeless Chamber of Commerce.

    The lady holding the scales in Jackson is crying under her blind fold tonight.


  2. I understand Sop and I agree but I don’t think we need to overlook the underlying decision.

    A decision that the SOL on a wrongful death claim would start at the time of injury and not death – well that’s just dumb.

    OTOH it does answer claimsguys question I didn’t get to today asking if there was a difference between facing the truth and facing reality here.

  3. I, too, look forward to seeing the full dissent. Absent the inclusion of material that inappropriately invades the privacy of the litigants or is somehow otherwise injurious to the administration of justice, all dissents (and majority opinions and concurrences) should be published in full. No secret justice, no secret rulings, no secret laws.

    No doubt at some point we will get to read it (FOIA should do the trick) and then we can all see. But I am with you guys on this: the marketplace of ideas will sort it all out.

  4. I would note that the underlying legal question is not nearly as clear-cut as you think.

    Lots of injuries bring with them the potential for reduced life span of the injured party. To refuse to start the litigation clock running until death occurs means that all of those cases can be filed for periods of time that far exceed what typical tort statutes of limitation envision. (Example: plaintiff suffers serious spinal cord injury that will shorten his or her life span from an actuarial 40 years to 10 years. That this is an effect of the injury is known from the point of diagnosis on. Why stay the running of the statute? The plaintiff can include in his or her claim the damage stream from his or her potentially shortened life if he or she wishes. A jury can consider it, and grant whatever damages they see fit. But at least the case gets resolved while witnesses still have memories and evidence is still available. Where is the societal value in keeping that matter unresolved for a decade?)

    If you have been hurt, and if you have sufficent capacity to know that you have been hurt, then the clock should start. The precise nature and extent of your damages may very well fluctuate during the pendency of your case and beyond. but there is a societal value to finality that trumps the need to compensate for every fluctuation.

    Finally, the idea that a cause of action can be time-barred before it is ripe is not a novel one. Many states have statutes of repose for certain kinds of cases, in which the clock starts to run not when the injury occurs, but when the liability-creating act (like the manufacture of a product) occurred. That such a thing is possible is not the legal novelty you seem to think it is.

  5. claimsguy, I have an update and copy of the dissent that I’m putting up now.

    guess it’s the state’s history of the dead voting that accounts for any “novelty”

  6. they probably are, claimsguy, but the voting dead have always been a “novelty” to me – Diaz’s dissent is based on law and to non-lawyer me makes a lot of sense.

    The political influence on the Courts here is much larger than an “insurance only” view indicates; and it accounts in large part for the unwillingness of some, myself included, to accept the Scruggs case on face value.

    Chief Justice Smith is the one who assigned Judge Lackey to hear George Dale’s appeal. In light of the fact that put the case before the same judge handling the Jones fee dispute and the highly publicized campaign Scruggs was conducting against Dale’s bid for re-election – you get the drift, no doubt, as it has a “Cook County” air about it.

    There were 20-something other circuits where Dale’s cases could have been heard – three of them hearing cases where a candidate’s qualification to run for office was in dispute.

  7. Let me get this straight. This decision had to do with an employee of the court and now, Diaz is saying that it is setting precedent that the SOL will begin in a wrongful death suit from the time of injury? And they don’t want his dissent published? Sounds odd to me.

  8. The case itself is claim that court administrator Beverly Pettigrew Kraft filed related to wrongful death. She’s former CL reporter who covered the courts who went to law school.

    At this point – and considering Buddy’s comments on new post – I’m guessing that she knew the Jenkins case would be problem with her claim and had her attorneys file appeal.

    Did you see the new post with update and copy of the dissent?

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