Decisions – MSSC – 6/13/2019

Hand down list

In Re: In the Matter of the Appointment and Setting Salary for County Court Administrator and Deputy Court Administrator: Hinds County, Mississippi v. Hon. William Skinner and Larita Cooper Stokes –  appeal of order by county court judges – When the two Hinds County Court judges signed an administrative order setting the salaries of their administrators higher  than the budgeted amount set by the Hinds County Board of Supervisors, Hinds County appealed. The MSSC finds that the appeal is not properly before the Court.  “This action seeks to appeal an administrative order executed by the county judges. An appeal from the “law side” of the county court should be made to the circuit court; and appeals from the “equity side” of a county court should be made to the chancery court.  Miss. Code. Ann. § 11-51-79 (Rev. 2012).”  “Here, Hinds County perfected the appeal in the circuit court, but it chose to pursue the appeal in this Court. Nothing in the record suggests that the circuit court disclaimed jurisdiction over this matter or was asked to decide this case.”  The MSSC dismisses the appeal and remands the case to the Circuit Court.

Meloney Harbour, as Next Friend of T.D.H, a Minor v. Tupelo Public School District and Jim Hood, ex rel. State of Mississippi school suspension – A teacher caught T.D.H. passing a substance alleged to be marijuana to a fellow student.  The school’s disciplinary committee held a hearing to review the referral and to review the school’s recommendation for disciplinary action.  Harbour, T.D.H.’s mother, was present at the hearing on behalf of T.D.H but  T.D.H.’s attorney was not allowed at the hearing under the school district’s policy.  The committee then upheld the school’s recommendation to place T.D.H. in an alternative school at the “Structured Day Program” for 180 days.  Harbour appealed the committee’s decision to the Tupelo Public School District Superintendent, who upheld the committee’s decision.  Harbour then appealed the superintendent’s decision to the Tupelo Public School District’s Board of Trustees, which also upheld the committee’s decision.   Harbour appealed the school board’s decision to the Chancery Court of Lee County.  The chancellor first held that the school district’s failure to allow T.D.H. to have counsel present at the hearing and the school district’s failure to state the standard of proof violated T.D.H.’s due process rights. The school district filed a Rule 59 Motion. The chancellor then held that the school district violated T.D.H.’s due process rights by not allowing T.D.H. to have counsel present at the hearing and for failing to state a burden of proof but that the relief was to allow T.D. H. to remain in school pending a new hearing. Harbour filed a Motion to Reconsider and raised for the first time the question of  under Mississippi Rule of Civil Procedure 60(b).  She sought to stay remand, to receive a temporary restraining order to stay a new disciplinary hearing and to receive a declaratory judgment as to the standard of proof under Section 37-9-71.  In support of the Rule 60(b) motion, Harbour argued for the first time that the evidentiary standard for disciplinary proceedings in MCA  Section 37-9-71—substantial evidence—was constitutional.  The chancellor denied the motion and Harbour appealed. The state argues that the order was not final since it remanded for a new hearing (much like a new trial). The MSSC disagrees. “The chancery court had enough information to make a finding on the merits.  The remand was based on a procedural due process issue.” Harbour’s constitutional issue was not raised until she filed the 60(b) motion so it was waived. The court also declines to review the chancery court’s determination that there was substantial evidence in the record against T.D.H., because the issue was not raised in the 60(b) motion and Harbour only appealed the 60(b) ruling. The MSSC affirms.

Mar-Jac Poultry MS, LLC v. Patricia Love, Individually, and as Next Best Friend, and Personal Representative of Keannie Love, and on Behalf of the Wrongful Death Beneficiaries of Keannie Love and LaShawn Miller, Individually, and as Next Best Friend, and Personal Representative of Lishanay Wilks, and on Behalf of the Wrongful Death Beneficiaries of Lishanay Wilks repondeat superior for negligence of employee – Senah Carter was employed at Mar-Jac as a “jack driver” –  bringing chicken in and out for the employees on the line and throwing away wet pallets and empty boxes.  Carter asked his employers if they could also hire Lishanay Wilks, who lived in his home, and Keannie Love, who was Wilks’s friend.  The supervisor said he had two spots and asked Carter if they could get to work.  Carter said he’d get them there. Carter drove Wilks and Love to work almost every day for approximately three weeks and then one day he drove his vehicle into the back of a school bus.  Wilks and Love both were killed. Their families sued Carter and Mar Jac. Mar Jac moved for summary judgment on the grounds that it was not liable for Carter’s negligence in an accident he had on the way to work. The trial court denied the motion. Mar-Jac filed an interlocutory appeal which was granted.  The MSSC reverses and renders finding that it was undisputed that Carter was not in the course and scope of employment when the accident happened.

Richard W. Morrow v. State of Mississippi –  right to confrontation – Richard Morrow was convicted of fondling – performing oral sex with his three-year-old grandnephew – and sentenced as a habitual offender to life in prison without parole.    Morrow maintained that the child had asked to see his false teeth and then put them in his underwear.  On appeal  he argues that the trial court violated his right to confrontation when it allowed an investigator to testify about the DNA results he had received from the crime lab.  The MSSC finds is error but not plain error (apparently there was no objection).  “In the case sub judice, Morrow testified that his victim placed Morrow’s dentures in his underwear; Morrow’s testimony jibed with the State’s evidence that his DNA was found on the victim’s penis.”  Morrow argues that the nonverbal responses of the victim were ambiguous and therefore insufficient to support the verdict; that his trial counsel was ineffective in failing to make objections and in failing to prefect his appeal; and that cumulative error requires reversal. The MSSC affirms. List

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