Stennis Institute of Government

While reading a case that came out yesterday from the Mississippi Court of Appeals (Rankin Group v. City of Richland, No.  2007-CA-02259-COA, 3/17/09) reminded me of how very important the minutes of public entities are to good government.  In fact, what many entities seem to forget is that public entities act through their minutes, so if minutes are ineffective, then the entities don’t act!

The Rankin Group case speaks to appeals taken from actions of public entities, in this case, the City of Richland.  In this particular case the Rankin Group petitioned the Circuit Court to issue a Writ of Mandamus requiring the City of Richland to sign and file a Bill of Exceptions, which is required when an entity’s decision(s) have been appealed.  Richland argued that it did not have to file a Bill of Exceptions because the Rankin Group had not appealed a decisionn of the City.  Under Section 11-51-75, an individual aggrieved of a decision of a municipality has 10 days to appeal the city’s decision.   

The Rankin Group argues that the 10 days begins to run after the minutes are approved, and further argues that it filed a notice of appeal within the 10 days after the minutes were approved.  The Circuit Court found that the Rankin Group was in error.  Section 21-15-33 requires that municipal minutes must be approved at the next meeting or within 30 days, and that once they are approved, the minutes have the legal effect of having been valid from and after the date of the meeting.  While Rankin Group argues that “meeting” means the meeting in which the minutes are approved, the Circuit Judge disagreed.  The Rankin Group appealed, and the Court of Appeals affirmed the Circuit Judge.

According to the Court of Appeals, to accept the meaning that Rankin Group suggests is to accept an interpretation inconsistent with the plain language of the statute.  When an appeal and bill of exceptions are not filed within the prescribed 10 days from the day of adjournment, no court has jurisdiction to consider an appeal.

This blog entry begins a series of entries to follow over the period of the next few days or weeks that will deal with “Minutes 101″.  Stay tuned….

The 5th Circuit Court of Appeals affirmed the decision of a Texas Federal District Court which upheld the constitutionality of a 2003 state statute which requires Texas public school students to observe a daily minute of silence in order to pray, reflect or otherwise remain quiet.  The 5th Circuit upheld the decision because the statute “expressly allows any silent use of that minute, whether religious or not.”

The lawsuit was filed by a Croft family who had 3 children enrolled in the Carrollton-Farmers Branch Independent School District, located in a suburb of Dallas.  The family argued that including the word “pray” in the statute requiring the mandatory minute of silence was a method for lawmakers to advance religion in public schools.

Several years ago, Pontotoc County Public Schools went all the way to the United States Supreme Court in an effort to allow prayer in public schools; Pontotoc County lost.  Obviously, this statute aims “lower” than the Pontotoc County School District did.  Nevertheless, it sets a precedent in our Federal Circult District for mandating moments of silence in public places for the specific purpose of prayer, among other purposes.

There are some changes in employer obligations relative to COBRA coverage as a result of the American Recovery and Reinvestment Act of 2009.  Under the Act, employees who were involuntarily terminated between September 1, 2008 and December 31, 2009 may be eligible to receive a reduced premium for COBRA continuation coverage. This change applies to employers with 20 or more employees.

Beginning March 1, 2009, eligible individuals will be allowed to pay 35% of the COBRA premium and the employer will be required to pay the remaining 65% of the premium. For the 65% share, the Act provides a subsidy that will be credited against the employer’s payroll taxes.

Tax advice should be sought by the employer since the type of health plan dictates whether the employer gets the tax credit or the plan gets the tax credit.

Employers are required to re-notify all employees who were involuntarily terminated during the designated period and to inform them of the new rules, even if they originally declined COBRA. The Department of Labor will provide model language for the notice soon since the re-notification must occur within 60 days of the signing of the Act (February 17, 2009). The employee will have a new 60 period in which to make the COBRA election.

In order to be an eligible employee, the employee must meet 4 criteria:

• Must be eligible for COBRA continuation coverage between September 1, 2008 and December 31, 2009;
• Loss of group medical coverage due to an involuntary termination of employment;
• Then (or now) elect COBRA continuation coverage; and
• Are not eligible to receive benefits from any other group health plan or Medicare.

In Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, U.S. No. 06-1595, the United States Supreme Court has extended the anti-retaliation protection of Title VII of the Civil Rights Act to employees who answer questions in an investigation conducted by the employer based on another employee’s complaint of discrimination.  Ms. Crawford was interviewed by an agent of the employer about an allegation of sexual harassment perpetrated against another employee by the employer’s Director of Employee Relations.

When Ms. Crawford was intereviewed by an employee of the HR department who was handing the investigation, she alleged that she, also, had been a victim of the Director of Employee Relations’ sexually harassing activity.  Ms. Crawford never filed any sort of complaint against the Director of Employee Relations at the time that she alleged that he harassed her, and she never told her employer about it.

A few months after the investigation, Ms. Crawford and two other employees (both of whom had reported that they, too, were victim’s of sexual harassment at the hands of the Director of Employee Relations) were fired for reasons which were purportedly not related to their revelations during the investigation.

On February 5, 2009, the Mississippi Supreme Court once again affirmed that the action of a City in a zoning matter should receive great deference from a reviewing judicial authority.  [Childs, et al v. Hancock County Board of Supervisors, et al., No. 2006-CT-00608-SCT] In a clearly written opinion authored by Justice Randolph, the Court reminded that under Mississippi law there is a distinction between the burden that an individual most meet when he wants property rezoned and the burden that an individual must meet when he wants a zoning decision of a City or County overturned.  In the former situation, the individual must prove by clear and convincing evidence that (1) there was a mistake in the original zoning or (2) the character of the neighborhood has changed to such an extent as to justify rezoning and that a public need exists for rezoning.  In the latter situation, if the decision of the zoning authority is “fairly debatable” then the judiciary should not disturb the finding of the zoning authority.  [The classification of property for zoning purposes is a legislative rather than a judicial matter.  Judicial review is limited to determining whether there is a substantial evidentiary basis for the City or County Board’s decision.  It is not the role of the judiciary to reweigh the evidence, but rather to verify if substantial evidence exists to support the zoning decision.  The Court has no authority to intervene in this legislative matter unless the decision on zoning is arbitrary and capricious.  Citing Town of Florence v. Sea Lands, Ltd., 759 So. 2d 1221 (Ms. 2000), Justice Randolph reminded us “‘Fairly debatable’ is the anthesis of arbitrary and capricious.”

For consideration in municipal or county minutes, however, is the reason that the Supreme Court overturned the Court of Appeals’ decision in this matter.  The Court of Appeals, when noting that the City Board did not make additional findings but merely adopted the Planning Commission’s findings, found fault with this.  The fault was not justified, but it does raise a practical solution to an imagined problem.  In lieu of merely adopting the Commission’s findings, it may do well for Mississippi municipalities to reflect in their minutes that it not only (1) adopts the zoning commission’s findings as its own, (2) ratifies, realleges and reaffirms the entire content of the zoning commission hearing and findings on the face of its minutes as if it were fully set forth therein, (3) together with the City Board members’ own common knowledge and familiarity with the ordinance area.

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.

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.

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?