Dissent is Essentially American
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.