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).