Sun Herald runs with "Diaz's dissent raises ruckus"- Clarion Ledger calls split a "chasm"

Leave it to Anita Lee to pick up the Diaz story and run while Patsy got stuck with the run around from the Daily Journal’s lawyer. Lee’s story includes quotes from Diaz, former Justice Chuck McRae, Justice Dickinson and retired Jackson attorney Alex Alston.

…”I’m just very disappointed with the court,” said Alex Alston, a highly respected Jackson attorney who can speak out because he has retired. “It looks like if the court wanted to do anything, it would err on the side of disclosure.”

Diaz called the court’s decision not to publish his opinion “unprecedented.” But Supreme Court Justice Jess Dickinson, who is also from the Coast, told the Sun Herald on Friday that Diaz’s dissent came in a case the court voted to send back to the trial court. No opinion was issued with the majority vote, he said, and there was nothing in the order to dissent to.

Dickinson said he wanted to respond to the Sun Herald’s inquiry because “it’s just absurd for him to think that any of us would prevent him from having the right to dissent in a case where the court’s issued an opinion.”

Diaz, Alston and former Supreme Court Justice Chuck McRae, who also is from the Coast, said justices have written dissenting opinions based only on court orders. Diaz voted against the majority’s decision and wanted to explain why.

“I’ve done it in several cases and other justices have, too,” McRae said. “I think it is unprecedented for a majority to quiet the vote of a justice because they don’t like what he is saying on a dissent. A justice has a constitutional right to explain his vote. They are all equal and they can’t muzzle a justice for that.”

You can bet there will be more ruckus to come, too. Dickinson and Diaz are both from the Coast. Diaz is up for re-election in November.

…In a 2006 case, Dickinson wrote an opinion for the majority saying the statute of limitations on a wrongful death claim starts at the time of the injury, not the death.

Alston said that opinion reversed common sense and 150 years of case law.

Diaz had hoped the court would keep the Veterans Board case and overrule the 2006 decision. He wrote in his dissent: “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.”

Dickinson said the court called a meeting to decide whether Diaz’s dissent should be published, but Diaz failed to show and explain himself. Diaz said he sent his vote and explained his position in an e-mail.

Sop reported Diaz attended Gene Taylor’s recent town hall meeting with Congressional leaders on the Coast.  I imagine we’ll hear more from both Dickinson and Diaz between now and November.

Clarion Ledger carried the following story by Jerry Mitchell on the controversy:

The split between some members of the state Supreme Court now appears to be a chasm.

A majority of the high court voted this week to bar a dissent Justice Oliver Diaz Jr. wrote in an appeal on a wrongful death case, only to reverse themselves Thursday afternoon, allowing the opinion to be included in the file. Diaz said that vote didn’t take place until after news media calls.

“I’m speechless,” Diaz remarked. “Never before has a majority voted to prohibit a dissent in Mississippi.”

Until this problem arose, relations had “never been spiteful,” he said.

What happened is part of a larger problem, he said. “They have at least five votes to do anything they want to do. That has led to the attitude that they have the power to do anything they want to do. They wanted to test the theory of whether they were able to stifle dissent. I think they have gravely misunderstood the power they have.”

Contacted for comment, Justice Jess Dickinson said, “My only comment would be that the concern here was that Justice Diaz was not dissenting to the order – and in fact agreed with it – but rather was expressing his opinion on issues, which were pending in the case, but which were not before the court at this time. The concern is if the case is later appealed, his opinion of those issues has already been published to the public. I don’t think that’s appropriate.”

Diaz called Dickinson’s characterization “completely and patently false and untrue.”

The story continues:

Matt Steffey, professor at Mississippi College School of Law, called what happened “unusual, but not irregular.”

Because the court is a sovereign body, “it’s entitled to change its mind,” Steffey said. “That’s not to say I wouldn’t be upset if I was Justice Diaz, but I think the court probably has the authority to set the policy.”

He can see both sides of the issue, he said. “I think there’s a real tension between a judge’s right to dissenting opinions and a general prescription of issuing advisory opinions.”

There has been a philosophic split in the court for some time regarding its handling of torts on appeal. Diaz and sometimes Graves often find themselves alone in dissents.

On Friday, Randolph said he and other justices believed because the order rejecting the interlocutory appeal included no opinion, a dissent did not belong.

“I’ve been on the court four and a half years, and I’ve never had anyone request to attach a statement to the lower court,” he said. “I thought it would be inappropriate to include any statement and to do anything other than send it back to the trial court.”

Because a trial has not taken place, justices lacked enough evidence on which to base a decision, he said. “I felt with some of the issues that it would be premature to rule on those issues because the record was not complete.”

In fact, Diaz had a chance to meet with all the other justices on the matter but did not show up, Randolph said. “Nobody’s trying to quell anybody’s rights to exercise their constitutional right to dissent, to express their opinion in the case.”

Diaz responded that he and two other justices did not show up Tuesday morning for the emergency meeting because they had only 15 minutes’ notice. “Within an hour, I voted by e-mail and explained my vote as to why I thought they were wrong,” he said. “They ignored my e-mail and my vote.”

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