Stennis Institute of Government

All the publicity has gone to the major party politics and the election of President-elect Obama.  But social politics — mostly ignored by journalists and tv talking heads — were busy topics in state elections on November 4.  For example:

South Dakota rejected a measure which would have banned most abortions in the state; Colorado voted down a measure which would have defined life as “beginning at conception”.  California’s measure requiring parental notification when performing abortions on minors (Proposition 4) was narrowly defeated.

Gay marriage was on the ballot in California and Arizona. California voters approved a constitutional ban on gay marriage (Proposition 8); Arizona defined marriage as a contract between a man and a woman (Proposition 102).  Arkansas voters determined unmarried cohabiting couples (including same sex couples) as unable to serve as adoptive or foster parents.

Embryonic stem-cell research was approved in Michigan.

Washington joined Oregon in legalizing physician-assisted suicide for the terminally ill.

Marijuana, anyone?  Massachusetts voted to decriminalize possession of small amounts of marijuana.  Michigan approved medical marijuana for people with debilitating illness. (California, on the other hand, rejected a proposal similar to the Massachusetts decriminalization action.)

Again, our national quilt is a patchwork — particularly on social politics.

Yesterday was not only election day in the U.S.  It was the day that the U. S. Supreme Court heard arguments on whether to ban the “f” word and the “s” word in live television broadcasts in prime time.

Prior to 2004, the Federal Communications Commission (FCC) only sanctioned the use of indecent language in a broadcast if it was repetitive and intentional.  In 2004, however, the FCC began cracking down on even the occasional use of foul language between 6 p.m. and 10 p.m., when more children watch T.V.  This policy change caused a shift in the delicate balance between the broadcasters right to free speech and the parents’ desire to protect their children from indecency in radio and T.V. programming.

When the FCC policy change was challenged (by Fox and NBC, among others) the Federal Court of Appeals for the District of New York ruled that the policy was “arbitrary and capricious”, thus affording victory to the networks.

Where will the Supreme Court draw the line on “bad words”?  Who knows, but the election of Obama and the new Dems in Congress will certainly impact the Court — although undoubtedly not so soon as to impact this particular decision.

E Pluribus Unum: Diversity and Community in the Twenty-first Century, The 2006 Johan Skytte Prize Lecture, was authored by Robert Putnam, Harvard University professor and author of Bowling Alone (plus six other books).  The paper is very lengthy, but a summary and link to the article appears below.  For those who work in community development it is must reading.

The more diverse the community, he finds, the less its members trust each other or the government, and the less they participate in collective life or believe in their own power to change their communities and politics. He notes that there are exceptions, but ultimately, more diverse communities are less trusting, less cohesive and less participatory places to live as people tend to “hunker down” and withdraw.  More…

Oliver Diaz and Randy ‘Bubba’ Pierce, Mississippi Supreme Court candidates from the Southern District, will speak to the Stennis-Capitol Press Luncheon on Monday, October 6, 2008.  The event is open to the public, however registration is required.  Registration details are on the luncheon’s Web site.

Lots of states and cities have enacted laws in the past few years to bring in more movie and television film crews to their localities.  Most have been successful, but I wonder if there is a point where so many incentives are offered by so many states and cities that we in effect go back to square one.  At any rate, New York has done just fine this year.

According to a New York Times article, “The tax incentives have also been a financial boon to the city: the mayor’s office estimated that city-based shoots contributed $957 million in spending between April 23 and Sept. 23 of this year, an increase from $452 million during the same period last year.”

Also, the local film office expects 19 prime-time shows to be filmed in the Big Apple this year, versus 12 last year.

Two years ago, the Mississippi Supreme Court adopted one of the most strict pro hac vice rules in the nation.  Pro hace vice (pronounced proh hock vee-chay) is Latin meaning “this time only”; the term applies to an out-of-state lawyer appearing in a court of a jurisdiction where a trial is being held, even though the lawyer is not licensed to practice law in that state.  Generally speaking, an application for for pro hac vice, if meeting the requirements set forth by the rule, is usually granted; often jurisdictions require association of a local attorney who is admitted to the bar in the jurisdiction.

In Mitchell v. Progressive Insurance Company, 965 So. 2d 679 (MS 2007), the Mississippi Supreme Court demonstrated that it meant business when it established such a strict rule.  In Mitchell, a claim against an insured’s insurance company was barred by the statute of limitations because the pleading initiating the litigation was not validly filed in a Mississippi court prior to the expiration of the statute of limitations.  It was not validly filed, the Court said, because the Louisiana attorney who filed the claim, had not been properly admitted under Mississippi Rule of Appellate Procedure 46 (b).

Not only did the Mitchell’s lose their cause of action, but the Mississippi Supreme Court found that the Louisiana attorney had engaged in the unauthorized practice of law in the State of Mississippi and remanded the case to the Circuit Court in which it had been filed and dismissed, instructing the Circuit Court to notify the Louisiana State Bar and impose sanctions.

The moral to the story for state and local governments:  if suit is filed by out-of-state counsel, look carefully at the requirements of Rule 46 (b) to ensure that they are complied with before going further with the litigation.

Mary Troupe, Executive Director of the Coalition for Citizens with Disabilities, on Tuesday, September, 9, 2008, presented “Champion of The People” awards to Senators Hillman Frazier of Jackson, and Senate President Pro Tempore Billy Hewes of Gulfport, for their efforts at bringing about equality for disabled persons.

Frazier is Chairman of the Senate Housing Committee, which is looking for ways to ensure that the state’s housing market continues to address the concerns of disabled persons, especially as the Gulf Coast rebuilds communities that were destroyed in 2005 by Hurricane Katrina.

Hewes is Chairman of the Senate Rules Committee and a member of the Housing Committee.

Welcome to the Stennis Institute of Government Civic Education Blog.  My name is Jeff Markham - as a Research Associate at the Stennis Institute, as well as the liaison between the Institute and the Mississippi State University Library’s Congressional and Political Research Center, I’ll be “authoring” this blog, which will have a focus on Mississippi-related civic education.

Please take a look at our civic education link on our website (www.msgovt.org).  You will find links, presentations, and research briefs related to civic education.

Thanks for visiting, and please let us know if the Stennis Institute can assist you.

During the 3rd week of August, something interesting happened at the Mississippi Supreme Court.  It might have gone unnoticed, except for Patsy Blumfeld of the Northeast Mississippi Daily Journal, who I believe is the first one who picked it up.  What happened is that Presiding Judge Oliver Diaz wrote a dissent in the case of Mississippi State Veterans Affairs Board v. Beverly Pettigrew Kraft, Personal Representative of the Wrongful Death Beneficiaries and Heirs at Law of Billy L. Pettigrew, Deceased, et al., No, 2006-IA000859-SCT (August 21, 2008).  But a majority of Justices didn’t want Diaz’s dissent published and voted to prevent the Clerk of Court from filing (publishing for the record) Justice Diaz’s dissent.

When I was a Commissioner at the Mississippi Workers’ Compensation Commission I dissented a lot.  I dissented whenever I believed that the majority was wrong and I was right.  Dissent is essentially American.  So, of course, I couldn’t believe that a majority of the Court would supress a dissent. But Patsy Blumfeld is too good a journalist;   therefore, I was comfortable with the veracity of the breaking story.

Why would Chief Justice Smith, Presiding Justice Waller and Justice Carlson, Dickinson and Randolph vote to prevent the publication of a fellow colleague’s reasonable dissent?  I still have no idea what the thought process may have been.

But an evaluation of the case makes some things clearer about why they might have wished that the dissent would go away.  Here’s how it looks to me:  In 2006, the Mississippi Supreme Court had ruled in the case of Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923 (Miss. 2006) that a wrongful death claim begins to run on the date of the wrongful act or acts which lead to the wrongful death.  Jenkins overruled a 1992 case, Gentry v. Wallace, 606 So. 2d 1117 (Miss. 1992) which held that a wrongful death claim begins to run on  the date of death or when the heirs knew or should have known about the negligence which caused the death.

While I will not discuss my thoughts about the 2006 opinion which significantly narrowed the rights of family members to seek a legal remedy when a negligent act of another with some duty to the deceased leads to the death, it is clear that the holding in the 2006 case requires a wrongful death beneficiary to act expeditiously, and moreover, may eradicate the cause of action if the actionable wrong is subtle and thus not immediately identified or identifiable.  Like, for example, a medical error or some highly technical error which might be the proximate cause of death of an individual.

In fact, as a matter of law, protection is effected for those who need protection.  Wrongful acts must be identified as such.  Just as minors are protected until they have an ability to understand their claims and just as those adjudicated to be mentally infirm are likewise protected, statutes of limitations associated with wrongful acts do not begin to run at the time of the act, but at the time of the injury or the time that the act is reasonably perceived to be wrongful.  So the Court’s decision in Jenkins seems, at first blush, contrary to the common law.  But then, statutes are to be specifically construed, and I could make an argument for strict construction of this statute of limitation that would fit Jenkins.

But I will interject that I know and love Beverly Pettigrew Kraft, the plaintiff/appellee.  And I bet the Justices do, too.  She is the Mississippi Supreme Court’s Information Officer (with “other duties as assigned”) and she does a beautiful job.  And judges are human and they wanted to help Beverly and her family.  But the majority didn’t want to overrule Jenkins.

It appears to me that the majority of the Court wanted the “result” that would be realized if Gentry were applied. And they could effect that result.  But they didn’t want the publicity that might ensue, should the public perceive that the Court was favoring the position of an employee-party over what might have occurred to a John-Q-Public-party before the Court.  The majority didn’t want to return to the more generous date that the statute of limitations begins to run in Gentry, but they didn’t want Beverly to suffer the results of Jenkins.

But seeking to stifle Presiding Justice Diaz’s dissent has brought the publicity that they did not desire.

Dissent is essentially American.  And as Justice Diaz noted in his opinion, the ability to dissent from an order of the majority is well established in law in the Mississippi Supreme Court.  An independent judiciary is a fundamental backbone of our judicial system.  Dissent, and particularly well-reasoned dissent, is essential to the functioning of an independent judiciary.

The Mississippi Supreme Court established a watershed in arbitration law last summer.  While it is not immediately applicable to state and local governments — it is not a case concerning a state or local government as a party — it is applicable to us all, including appropriate political entities.

The Mississippi Supreme Court has mandated that upon recognition that a suit is subject to arbitration, a defendant MUST file an immediate motion to enforce the arbitration and NOT participate in the more conventional, common law legal process — filing an answer, responding to discovery, etc. — or the arbitration is deemed waived.

The case is Century 21 Maselle and Associates, Inc., and Cindy Smith v. Tony L. Smith and Linda N. Smith, No. 2005-IA-01696-SCT, consolidated with No. 2005-CA-01814 (8/16/2007).

Presiding Justice Diaz has written a masterful dissent on one part of the opinion.  It reminds us that protection from over-reaching and unconscionability should remain the right of every Mississippian.  Justice Diaz notices that, while it is a matter of settled contract law that when parties contract to arbitrate under the Federal Arbitration Act [FAA], they are not required to establish that the transaction at issues involves or affects interstate commerce [In Re Choice Homes, Inc., 174 S.W.3d 408 (Tex. App. 2005)].  However, the FAA embodies a clear federal policy requiring arbitration unless the agreement to arbitrate is not part of a contract evidencing interstate commerce 0r unless the the agreement to arbitrate is revocable upon “such grounds as exist at law or in equity for the revocation of any contract.”  (9 U.S.C. 2)  The Presiding Justice concludes:  “Congress and the U. S. Supreme Court acknowledge the primacy of state statutory and common law protections against overreaching and fraud, as often embodied in the doctrines of procedural and substantive unconscionability.  We should not be so quick to toss aside those tools meant to safeguard the rights of Mississippians.

When I think of unconscionability in an arbitration context, I am reminded of the family that could not get a desperately sick man into suitable assisted living unless the family agreed to arbitrate any dispute under the FAA.  It is not unreasonabled to believe that you have no other alternative in such a situation:  deprive the desperately sick family member of the care he needs, that you cannot provide at home, or wait and hope to find a suitable living situation where the contract does not require arbitration of any claims.  When choices are limited, circumstances in value-laden situations cause us to make decisions that we might not otherwise make.  Isn’t that what unconscionable contracts are make of?