5th Circuit Nominees

President Trump is reported to nominate Texas Supreme Court Justice Don Willett and Gibson Dunn & Crutcher LLP partner Jim Ho to the Fifth Circuit.


Dissent of the Year

My award for Dissent of the year goes to Justice Chamberlin.  In Hatfield v. Deer Haven Homeowners Association, 2016-CP-00820-SCT (September 14, 2017), Justice Chamberlin says:

¶33. In response to the majority, I feel compelled to swoop in and kill two birds with one stone. I am as happy as a lark to join the flock in affirming the chancellor in this case. However, I must also spread my wings and dissent in part because I fear that the majority’s award of $25,125 in appellate attorney’s fees against a pro-se litigant—without any evidentiary support in our record for the award—could become the goose that laid the golden egg. It doesn’t take eagle eyes to see the problem with this approach. Therefore, I must cry “fowl.”

¶34. The majority’s caution that “the better practice . . . would be for the party seeking attorney fees on appeal to file a motion in this Court, supported by affidavits and time records that establish the actual fee expended on appeal” is correct. (Maj. Op. at ¶ 30). As a matter of fact, it is so much better that we should require it.

¶35. Our Court’s past directives on awards of attorney’s fees have been clear: “The court may not judicially note what is a reasonable fee and it certainly may not merely pull a figure out of thin air. Rather, the party entitled to recover a reasonable fee must furnish an evidentiary predicate therefor.” Key Constructors, Inc. v. H & M Gas Co., 537 So. 2d 1318, 1325 (Miss. 1989). Key found “in no uncertain terms” that “‘reasonable attorney[’]s fees’ require[d] proof.” Id. There must be an evidentiary predicate. Sanford v. Jackson Mall Shopping Ctr. Co., 516 So. 2d 227, 230 (Miss. 1987).

¶36. I see no reason why an appellate award should be treated any differently than a trial award. While judicial economy might be served using this method on small awards or in circumstances where justice requires, the facts of this case present neither situation. I would find that appellate counsel, just like trial counsel, should have to “furnish an evidentiary predicate []for” an award of attorney’s fees. Key, 537 So. 2d at 1325.

¶37. Others may think my position bird-brained, but I sincerely believe that, once the chickens come home to roost, this opinion will be a feather in my cap. Therefore, I dissent as to this issue.


(Emphasis added).  Justice Chamberlin is certainly a colorful addition to the appellate courts.

Just Get it Right

Last week, the Supreme Court handed down Walker v. State, 2015-CT-00912-SCT.  What’s interesting about this case is that it interprets Senate Bill 585 and what it says about parole revocation.  It used to be that the circuit court could revoke parole and send the prisoner back for the remainder of the term.  585 changed all of that.

The Court of Appeals decided Walker, and it went up on cert.  Later, the COA realized that it was in error.  Here is the excerpt from Supreme Court’s decision in Walker v. State:

IV. Mississippi Code Section § 47-7-37-(5)(a)

¶10. At Walker’s revocation hearing, the trial court revoked his probation and sentenced him to the entirety of his original five-year sentence. The Court of Appeals reversed and remanded, finding that, because this was Walker’s first technical violation of his probation, he should have been sentenced to not more than ninety days. Subsection (5)(a) of Mississippi Code Section 47-7-37 reads in pertinent part:

. . . If the court revokes probation for a technical violation, the court shall
impose a period of imprisonment to be served in either a technical violation
center or a restitution center not to exceed ninety (90) days for the first
technical violation and not to exceed one hundred twenty (120) days for the
second technical violation. For the third technical violation, the court may
impose a period of imprisonment to be served in either a technical violation
center or a restitution center for up to one hundred eighty (180) days or the
court may impose the remainder of the suspended portion of the sentence. For
the fourth and any subsequent technical violation, the court may impose up to
the remainder of the suspended portion of the sentence. The period of
imprisonment in a technical violation center imposed under this section shall
not be reduced in any manner.

Miss. Code Ann. § 47-7-37 (Rev. 2014).

¶11. In its petition for certiorari, the State argues that Walker violated three conditions of
his parole, as reflected by Johnson’s affidavit. The State submitted that each individual
violation was a separate technical violation as contemplated by Section 47-7-2(q). Section
47-7-2(q) defines “technical violation” as “an act or omission by the probationer that violates a condition or conditions of probation placed on the probationer by the court or the probation officer.” Miss. Code Ann. § 47-7-2 (Rev. 2014).

¶12. After filing its petition, the State informed this Court of the recent decision by the
Court of Appeals, in which it acknowledged that “the conclusion in Walker is contrary to the plain language of the statute and should be overruled.” Cobbert v. State, No.
2016-CP-00446-COA, 2017 WL 2781962, at *3 (Miss. Ct. App. June 27, 2017). In Cobbert, the Court of Appeals distinguished between a “technical violation” and a “revocation order,”
which could be made up of numerous technical violations. Id. at *2. At Cobbert’s first revocation hearing, the State established three technical violations: that Cobbert failed to report to his probation officer, that he failed to pay required fees, and that he failed to pay court costs. At Cobbert’s second revocation hearing, the State established that Cobbert had failed to report once again, his fourth technical violation. Cobbert thus committed four separate acts or omissions that violated a condition or conditions of his PRS. Therefore, under the plain language of the statute, the circuit court was within its authority to impose the remainder of the suspended portion of Cobbert’s sentence. Id.

¶13. Today’s case presents similar facts. While this is Walker’s first revocation hearing,
he committed three technical violations of his probation. Pursuant to the relevant code
section, the trial court properly sentenced Walker to serve the remaining five years of his
original sentence. We adopt the Court of Appeals holding in Cobbert that a proper
interpretation of Section 47-7-37(5)(a) requires a finding of each separate violation of parole to be a separate and distinct technical violation. Walker committed three separate acts or omissions, each of which violated a condition or conditions of his probation.

Judicial Openings

If you are a lawyer in Lauderdale County, there are a couple of judicial openings.  The Circuit Court has an opening due to the untimely death of Judge Justin Cobb, and County Court Judge Frank Coleman has submitted his resignation to retire.  Judge Coleman has served as a County Court Judge for more than 30 years.  Thank you for your service Judge Coleman.

By my count, there are at least three judicial openings.  Governor Bryant’s Judicial Appointment Committee is rather busy these days.

2017 Judicial Resignation/Replacement Tracker:

  1. Circuit Judge Vernon Cotten – 8th Circuit District – Judge Mark Duncan
  2. County Judge John Price – Warren County – Resignation withdrawn
  3. County Judge Gaylon Harper – Jones County – Replacement: Yet to be named
  4. Justice Jess Dickinson – Southern District Supreme Court – David Ishee
  5. Judge David Ishee – Court of Appeals – Replacement: Yet to be named
  6. Judge Justin Cobb –  10th Circuit Court District – Replacement: Yet to be named
  7. Judge Frank Coleman – Lauderdale County Court Judge – Replacement: Yet to be named