Decisions – Miss.S.Ct. – Sept. 7, 2017

Mayor and City Council and City of Columbus v. The Commercial Dispatchopen meetings –  When the Commercial Dispatch received notice that the City of Columbus was having meetings not open to the public, it filed a complaint with the Ethics Commission.   In an attempt to avoid the Open Meetings Act, the mayor met with three council members and later met with the other three so that no meeting was of a quorum.  The meetings were to discuss  economic development and maintenance of a public building.  The Ethics Commission found that the Mayor and the City of Columbus had violated the Open Meetings Act. The Mayor and the City of Columbus appealed to the chancery court. The chancery court affirmed the Commission’s judgment.  They appealed again.  The Miss. Supreme Court also affirms.

The four pairs of subquorum gatherings, along with the fact that they were
prearranged, nonsocial, and on the topic of public business, illustrated the City’s intent to circumvent or avoid the requirements of the Act. The philosophy and spirit of the Act prohibit the City from intending and attempting to circumvent or avoid the requirements of the Act. Additionally, the plain language of Section 25-41-1 requires the subject gatherings to be open to the public. Thus, the City’s failure to hold open gatherings violated the Act.

 

Shelia Regan v. South Central Regional Medical Center dismissal for failure to prosecute – Sheila Regan claimed she was injured while being treated at South Central Medical Center in 2003.  She filed a med mal suit in 2005 but it was dismissed without prejudice because she failed to attach the required expert’s consultation.  She filed the lawsuit again. Three months later she voluntarily dismissed the complaint and filed a third lawsuit that same day.  South Central filed a motion to dismiss based on the Tort Claims Act’s one year statute of limitations.  The trial court granted the motion at first but on rehearing reversed his decision.  For the next five years, Regan did very little on her case.   On Oct. 21, 2015, the clerk entered a notice of dismissal and a few days later South Central moved to dismiss for failure to prosecute. The trial court granted the motion to dismiss.  Regan appealed. The Miss.S.Ct. affirms.  “Here, Shelia Regan filed her first medical-malpractice claim against South Central Regional Medical Center in 2005.
Three lawsuits, two appeals, and more than ten years later, there has still been no trial.”

Marilyn Newsome, Individually and as Conservator/Conservatrix of Victoria Newsome v. David Shoemake and Joe Dale Walker –   judicial immunity – Victoria Newsome received a large settlement as a result of her medical malpractice claim.  Her mother  Marilyn Denise Newsome was appointed as her conservator.  The chancellor, Joe Dale Walker, ended up going to prison for his actions in the case.  He arranged to have the conservatorship hire his nephew to build a house for Victoria and had his nephew reimbursed for supplies that were allegedly stolen.  The other chancellor, Shoemake, was suspended from office for thirty days for his involvement in the case.  Newsome sued both Walker and Shoemake.   The trial court dismissed based on judicial immunity.  The Miss.S.Ct. affirms.

Kevin Boston  v. State of Mississippi –  prearming instruction – Boston was convicted of capital murder in the death of Willie Dean.  Boston had come to Trigg Elementary to change his estranged wife’s flat tire.  Dean was the maintenance worker for the school. Somehow they got involved in an altercation in which Dean was stabbed with a pocket knife.  Boston claimed he had purchased the knife from Auto Zone a month before the accident.  On appeal, Boston’s attorney raised issues involving the sufficiency of t he evidence and the denial of a self defense instruction. Boston filed a supplemental pro se brief arguing that the court erred in giving the jury a pre-arming instruction.  The court reverses on the issue raised by Boston.  Over Boston’s objection, the court gave the jury an instruction that “if a person provokes a difficulty, arming himself in advance, and intending, if necessary, to use his weapon and overcome his adversary, he becomes the aggressor and cannot claim the right of self-defense.” The instruction has been condemned because it prevents a defendant from arguing self defense. Here there was no evidentiary support for the instruction inasmuch as no witness saw how the altercation began and, thus, it was reversible error to give it.  (Given the history of the instruction and the fact that Boston objected at trial, hard to see how Boston’s attorney overlooked that one).

The Court also amends  Mississippi Rules of Appellate Procedure 11 to allow trial court clerks to transfer exhibits electronically.

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