Supremely smarter today Supremes release Diaz dissent to Daily Journal (UPDATE in comments)

Patsy Brumfield provides an update to yesterday’s story about the Mississippi Supreme Court’s ban on publication of Judge Diaz’s dissenting view on a decision – and there is no longer any question the Supremes play politics with the State’s judicial system.

First, however, a look at the related Order Diaz issued. h/t folo:

This order is entered pursuant to the order of this court to dismiss the petition for certiorari as improvidently granted. By majority vote, the undersigned Justice was prohibited from issuing the attached dissent to the above referenced order. The authority to issue a dissent to an order of this court is well established. See In re Bell, 2006 Miss. LEXIS 769 (Nov. 9, 2006) (Diaz, J., dissenting) andBarrettv. State, 670 So. 2d20 (Miss. 1996) (Banks, J., dissenting, joined by Lee, C.l).

The authority to issue a dissent to an order to dismiss a petition for certiorari is likewise well established. See e.g., Roper v. Weaver, 127 S. Ct. 2022, 2024, 167 L.Ed.2d 966 (2007) (Scalia, 1., dissenting, joined by Thomas & Alito, n.). A majority vote to censor a justice of the court and prohibit the issuance of a dissenting opinion may be unprecedented in the history of American jurisprudence. (emphasis added)

SO ORDERED, this the 21st day of August, 2008.

Oliver E. Diaz, Jr., Presiding Judge

Next, from the Daily Journal’s update:

It’s public now – a dissenting opinion banned from disclosure Thursday by a majority of the Mississippi Supreme Court.

Clerk Jack Pool e-mailed to the Daily Journal a copy of dissent by Presiding Justice Oliver Diaz, which the justice wrote earlier this week in reaction an En Banc decision to dismiss a wrongful death case appeal.

After the prohibition vote by Chief Justice Jim Smith and justices William Waller Jr., George Carlton, Jess Dickinson and Michael Randolph, Diaz gave the Daily Journal a copy.

His dissent, which he described as – really boring and bland, – disagreed with this week’s opinion from the court that it would not hear an appeal it earlier said it would.

Diaz’s opinion was about the court’s view in wrongful death lawsuits – he argued against 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,” he said in his seven-page document provided to the Daily Journal.

It’s still unclear what the justices’ motives were behind their ban on Diaz’s dissent, which numerous longtime court watchers termed from unusual to unbelievable…

The Daily Journal is still waiting for calls for answers from Chief Justice Smith and others.

Now, from the Diaz dissenting opinion re: the underlying Jenkins decision:

Jenkins was written by Justice Dickinson and joined by Chief Justice Smith, Presiding Justice Waller, and Justices Easley and Carlson. Presiding Justice Cobb, and Justices Diaz, Graves, and Randolph did not participate in the opinion. 933 So. 2d 923.

Kraft argues that Jenkins was wrongly decided because the cases on which the opinion relies do not support its holding. I absolutely agree. While Jenkins was correct in holding that “the statute of limitations on bringing a wrongful death claim is subject to, and limited by, the statute of limitations associated with the claims of specific wrongful acts which allegedly led to the wrongful death,” none of the cases it cites support the proposition that the statute of limitations begins to run at the time of the wrongful acts. Id. at 926 (emphasis supplied).

I suspect the Journal will wait a while longer for answers from Chief Justice Smith and others but, despite the Journal’s claims to the contrary, there is nothing unclear about the justices’ motives were behind their ban on Diaz’s dissent – politics, pure and simple.

As I understand it and certainly subject to correction, the appeal in this case was brought by Jim Kitchens, a candidate for the seat on the Court held by Chief Justice Jim Smith. Although Smith had previously stated he would recuse himself from decisions if Kitchens was involved, he did so only on the case itself but voted to ban publication of the dissent.

I’m anxious to know claimsguy’s opinion of Diaz’s dissenting view; but, it seems solid to non-lawyer me. However, had the majority voted with Diaz and Graves, the resulting opinion would have been a victory for Kitchens.

Apparently, that just wouldn’t do – not in this Court where politics rules.

5 thoughts on “Supremely smarter today Supremes release Diaz dissent to Daily Journal (UPDATE in comments)”

  1. It will be interesting to see if the other justices comment at all. After all, this appeal was just on a portion of a case still pending in trial court, of which no decision has yet been rendered. Most justices make it a point not to comment on cases that are still pending. This one (other than this portion) hasn’t even finished before the trial judge. It wouldn’t really be proper for an appeal judge to comment on it yet. For now, I bet, only Diaz’s side of the story will be told. But I hope I am surprised.

  2. I certainly will be, Buddy, and welcome to slabbed.

    Do you have any more information on the case. It’s hard to come by when a case isn’t in federal court.

  3. Glad to be here. I don’t have any more details on the case other than what I’m reading around the web. It looks like (courtesy of y’all politics) that there is an update to the update, but still no response from the Court, for the reason I mentioned above.

  4. I checked y’all after reading your comment, Buddy, and didn’t see the update but maybe I’ll keep looking and hope you’ll stay with us and keep us current on the story. Thanks.

  5. Have it now, Buddy, it was in reader comment linking an update to the update in the Daily Journal.

    A dissenting opinion barred from disclosure Thursday by a majority of the Mississippi Supreme Court is public now.

    Clerk Jack Pool e-mailed to the Daily Journal a copy of the dissent by Presiding Justice Oliver Diaz, which the justice wrote earlier this week related to an En Banc decision to dismiss a wrongful death case appeal.

    After the prohibition vote reportedly by Chief Justice Jim Smith and justices William Waller Jr., George Carlson, Jess Dickinson and Michael Randolph, Diaz gave the Daily Journal a copy…

    Tupelo attorney Tom Wicker says that since denial of the appeal left the case in a lower court, it would be improper for the Supreme Court to weigh in on the issues of the case publicly.

    “By publishing a dissenting opinion, a justice is over-riding the majority and taking the case from the lower court judge on that issue at a point in the case that would be premature.”

    He termed Diaz’s dissent “unprecedented” while “the court’s determination that he shouldn’t publish it was an attempt to stay within the bounds of established precedent and the exercise of judicial temperament.”

    I can understand to a certain extent but it seems peculiar to withhold a dissenting opinion from the trial judge – clearly the implication is the judge will rule according to direction the Supremes provided – which IMO would be an error. Still waiting for claimsguy or another attorney to comment on the basis of the Diaz dissent.

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