Safeco Insurance Company of America v. State of Mississippi ( 2019 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-IA-01554-SCT
SAFECO INSURANCE COMPANY OF AMERICA
v.
STATE OF MISSISSIPPI EX REL. JIM HOOD
DATE OF JUDGMENT: 10/25/2017
TRIAL JUDGE: HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: GREGG A. CARAWAY
CLIFFORD K. (FORD) BAILEY, III
JUDY Y. BARRASSO
STEPHEN L. MILES
CHLOÉ M. CHETTA
STEPHEN R. KLAFFKY
ATTORNEYS FOR APPELLEE: GEORGE W. NEVILLE
DONALD L. KILGORE
JACQUELINE H. RAY
WILLIAM L. SMITH
LUCIEN SMITH
BENJAMIN BRYANT
CRYMES G. PITTMAN
WILLIAM E. COPLEY
MAISON HEIDELBERG
NATURE OF THE CASE: CIVIL - INSURANCE
DISPOSITION: VACATED AND REMANDED - 08/22/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GRIFFIS, JUSTICE, FOR THE COURT:
¶1. This case is before the Court on interlocutory appeal. Safeco Insurance Company
(Safeco) challenges the circuit court’s reassignment of this case and the appointment of a
special master. We find an abuse of discretion and vacate the reassignment order and the
special-master order. The case is remanded for further proceedings consistent with this
opinion.
FACTS AND PROCEDURAL HISTORY
¶2. This case arises from Hurricane Katrina insurance litigation. After the hurricane had
destroyed many homes, policyholders and insurance companies began litigating whether the
hurricane losses were caused by flood damage or wind damage. The distinction determined
whether the insurance companies would pay claims on those polices that did not cover flood
damage.
¶3. For Mississippi residents who could not recover under an insurance policy at that time,
Mississippi enacted the Homeowner Assistance Program (HAP), a federally funded program
intended to assist uninsured or underinsured homeowners. According to the State, a portion
of the HAP assistance would not have been paid by the State if insurers had not wrongly
characterized flood-damage claims as wind-damage claims.
¶4. Since 2015, the State has initiated at least twelve HAP lawsuits against insurers,
asserting different theories of liability related to HAP. Some of the cases have been settled,
while others are pending in both state and federal courts.1 Four of such cases are relevant
1
See, e.g., Mississippi ex rel. Hood v. MeritPlan Ins. Co., No. 1:15-cv-00614 (Hinds
Cty. Circuit Court, 1st Jud. Dist., filed Nov. 20, 2015) (initially assigned to and now pending
before Judge Green; settled and dismissed); Mississippi ex rel. Hood v. Balboa Ins. Co., No.
1:17-cv-00146 (Hinds Cty. Circuit Court, 1st Jud. Dist., filed Mar. 10, 2017) (initially
assigned to Judge Green; settled and dismissed); Mississippi ex rel. Hood v. USAA Cas. Ins.
2
here.
¶5. On April 21, 2015, the State filed the first HAP complaint against State Farm Fire &
Casualty Company (State Farm).2 The State alleged that State Farm misadjusted 8,238
unidentified Katrina-related insurance claims. This case was initially randomly assigned to
Senior Circuit Judge Tomie Green.
¶6. On November 20, 2015, the State filed another HAP case against Metropolitan
Property and Casualty Insurance Company (Metropolitan).3 The State alleged that
Metropolitan misadjusted 429 unidentified Katrina-related insurance claims. This case was
initially randomly assigned to Circuit Judge William Gowan, who retired in March 2018.
¶7. Within several months of filing, Judge Gowan considered and ruled on two dispositive
Co. et al., No. 1:18-cv-00210 (Hinds Cty. Circuit Court, 1st Jud. Dist., filed Apr. 16, 2018)
(initially assigned to Judge Gowan’s successor; now pending before Judge Faye Peterson);
Mississippi ex rel. Hood v. Prime Ins. Co., No. 1:18-cv-00211 (Hinds Cty. Circuit Court,
1st Jud. Dist., filed Apr. 16, 2018) (initially assigned to Judge Gowan’s successor; now
pending before Judge Peterson); Mississippi ex rel. Hood v. Allstate Ins. Co., et al., No.
1:18-cv-00212 (Hinds Cty. Circuit Court, 1st Jud. Dist., filed Apr. 16, 2018) (initially
assigned to and now pending before Judge Green); Mississippi ex rel. Hood v. Am. Sec. Ins.
Co., No. 1:18-cv-00213 (Hinds Cty. Circuit Court, 1st Jud. Dist., filed Apr. 16, 2018)
(initially assigned to Judge Gowan’s successor; now pending before Judge Peterson);
Mississippi ex rel. Hood v. Nat’l Fire and Cas. Co., No. 1:18-cv-00214 (Hinds Cty. Circuit
Court, 1st Jud. Dist., filed Apr. 16, 2018) (initially assigned to Judge Gowan’s successor;
now pending before Judge Peterson); Mississippi ex rel. Hood v. Nationwide Mut. Ins. Co.,
et al., No. 1:18-cv-00215 (Hinds Cty. Circuit Court, 1st Jud. Dist., filed Nov. 20, 2015)
(initially assigned to Judge Green; interlocutory appeal pending 2019-M-01017-SCT).
2
Mississippi ex rel. Hood v. State Farm Fire & Cas. Co., No. 1:15-cv-00221-TTG
(Hinds Cty. Circuit Court, 1st Jud. Dist., filed Apr. 21, 2015) (State Farm).
3
Mississippi ex rel. Hood v. Metro. Life Ins. Co., No. 1:15-cv-00615-WAG (Hinds
Cty. Circuit Court, 1st Jud. Dist., filed Nov. 20, 2015) (Metropolitan).
3
motions. Judge Gowan ruled against the State and held: first, that the State’s subrogation
claims were untimely; second, that the State violated Mississippi’s pleading requirements by
not appending each policyholder’s subrogation agreement to the complaint; and third, that
the State was to disclose these agreements, “rather than making the Defendant go on a fishing
expedition.” The case was settled following this ruling.
¶8. Shortly thereafter, on March 29, 2017, the State filed two more HAP cases. The first
case was filed against Safeco.4 The complaint alleged that Safeco misadjusted 232
unidentified Katrina-related insurance claims. This case was initially randomly assigned to
Judge Gowan.
¶9. The second case was filed against Liberty Mutual Insurance Company (Liberty
Mutual).5 The complaint alleged that Liberty Mutual misadjusted 180 unidentified
Katrina-related insurance claims. This case was initially randomly assigned to Judge Green.
¶10. On May 9, 2017, in State Farm, after the State filed a motion for entry of a proposed
scheduling order and State Farm filed a motion to dismiss that was similar to that motion
granted by Judge Gowan in Metropolitan, Judge Green entered the following text order,
without conducting a hearing:
ORDER OF NOTICE OF INTENT TO APPOINT SPECIAL MASTER.
Please take notice OF THE COURT’S INTENT to appoint a SPECIAL
4
Mississippi ex rel. Hood v. Safeco Ins. Co., No. 1:17-cv-00197-WAG (Hinds Cty.
Circuit Court, 1st Jud. Dist., filed Mar. 29, 2007) (Safeco).
5
Mississippi ex rel. Hood v. Liberty Mut. Ins. Co., No. 1:17-cv-00198-TTG (Hinds
Cty. Circuit Court, 1st Jud. Dist., filed Mar. 29, 2007) (Liberty Mutual).
4
MASTER on the grounds of its overcrowded civil and criminal dockets, and
other administrative duties, in addition to the parties numerous filings and the
complexity of case and the need for timely resolution of pretrial matters. The
Special Master’s fee and expenses will be borne by the parties, in equal
proportion. Any party with a reasonable objection for cause to said
appointment shall file said objection on or before May 19, 2017. NO
FURTHER WRITTEN ORDER WILL BE ENTERED BY THE COURT.
On July 17, 2017, an order appointing a special master was entered in the State Farm case.
State Farm objected to the entry of that order. The State Farm order is not before this Court.
¶11. On October 2, 2017, both Safeco and Liberty Mutual filed a motion to dismiss the
State’s claims for failure to join necessary parties and for failure to state a claim, similar to
motions that Judge Gowan had granted in Metropolitan.
¶12. On October 13, 2017, the State, in the State Farm case, filed a motion to consolidate
State Farm with Liberty Mutual and Safeco and a motion to appoint a special master.
Neither the motion to consolidate nor the motion to appoint a special master was filed in the
Safeco or Liberty Mutual cases.
¶13. Nevertheless, on October 24 and 25, 2017, Judge Green issued a sua sponte order in
both the Safeco case (in which she was not the assigned judge) and the Liberty Mutual case
(in which she was the assigned judge) appointing a special master.
¶14. Then, on October 26, 2017, Judge Green entered an order in the Safeco case that
reassigned the Safeco case to her docket.
¶15. On November 8 and 9, 2017, Safeco and Liberty Mutual filed a petition for
interlocutory appeal challenging both the reassignment order and the orders appointing a
5
special master.6 In addition to the briefs of the parties and the amicus, on November 8, this
Court requested responses from Judges Green and Gowan. Their joint response was filed on
November 13, 2017, and Judge Gowan filed a separate supplemental response on December
7, 2017.
ISSUES
¶16. The parties stated the issues as follows:
1. Did the circuit court err by unilaterally and non-randomly reassigning
the Safeco case to herself?
2. Did the circuit court err by appointing a special master without finding
an exceptional condition to justify it and by granting the special master
excessive authority not warranted by the facts of the cases, including
permitting engagement in unlimited substantive ex parte
communications?
3. If the Court finds overcrowding, should it appoint a special judge to
hear the Safeco and Liberty Mutual cases instead of allowing a circuit
judge to unilaterally delegate judicial authority to an unelected special
master, at the parties’ expense, including in a case not assigned to the
circuit judge?
DISCUSSION
1. Did the circuit court err by unilaterally and non-randomly
reassigning the Safeco case to herself?
¶17. Safeco argues that the sua sponte reassignment of this case violated Rule 1.05A(A)
of the Uniform Civil Rules of Circuit and County Court Practice. Safeco also argues that
because Rule 1.05A requires assignments to be random, reassignments should be random as
6
The Court’s decision in Liberty Mutual will be decided by a separate opinion.
6
well.
¶18. The first question under this issue is whether circuit judges have the authority to
reassign or transfer a case. This Court’s appellate review of “questions of law are reviewed
de novo.” Miss. Dep’t of Revenue v. Hotel & Rest. Supply, 192 So. 3d 942, 945 (Miss.
2016) (citing Equifax, Inc. v. Miss. Dep’t of Revenue, 125 So. 3d 36, 41 (Miss. 2013)). The
Court finds no Rule that prohibits reassignment or transfer of a case to a judge other than the
judge to whom the case was initially randomly assigned. Further, the Court has found no
Mississippi case that has interpreted this provision explicitly with respect to reassignments
or transfers by one judge to another judge in the same district.7
¶19. Safeco’s argument is that the reassignment order violates Rule 1.05A and this Court’s
precedent and should be vacated.
¶20. Mississippi does indeed follow a rule of random assignment of cases. In November
2000, this Court promulgated Mississippi Rule of Appellate Procedure 27(g):
The setting of terms and assigning of causes in dockets in the chancery and
circuit courts shall be done fairly considering the relative workloads of the
judges and the right of litigants within the district to fair and reasonable access
to all of the judicial officers, as well as reasonable accommodation of the
requests and needs of all the judges within the district. Further, the assignment
of cases and dockets shall be done through a systematic plan recognizing the
7
Other states’ courts have considered the process and the propriety of judicial
reassignment. See, e.g., State v. Sprint Commc’ns Co., L.P., 699 So. 2d 1058, 1062 (La.
1997) (“We hold the judges . . . cannot be permitted to continue the practice of
non-randomly swapping cases originally allotted to them by chance. Just as a litigant may
not choose a courtroom or a judge, a judge may not select his caseload or his litigants.”).
7
criteria set out herein.
Then, to establish such a systematic plan, in May 2003, this Court adopted Rule 1.05A of the
rules then known as the Uniform Circuit and County Court Rules:
in multi-judge districts and courts, all civil cases shall be assigned immediately
on the filing of the complaint by such method which shall insure that the
assignment shall be random, that no discernible pattern of assignment exists,
and that no person shall know to whom the case will be assigned until it has
been assigned . . . .
¶21. Today, we recognize that the reassignment or transfer of cases is not prohibited by
rule.8 Therefore, based on our de novo review, the Court concludes that cases may be
reassigned or transferred by judges when necessary “to secure the just, speedy, and
inexpensive determination of every action.” M.R.C.P. 1.9 We now turn to the review of
whether Judge Green abused her discretion in the decision to reassign this case.
¶22. On appeal, we review discretionary decisions by trial judges for an abuse of
8
Judge Gowan is correct that “[t]here is no specific statute, rule, or case law [that]
prohibits a senior judge, with permission from the assigned judge, from transferring a case
for purposes of consolidation and judicial economy.” Since no statute, rule, or case law
squarely addresses the procedures utilized by Judge Green and Judge Gowan, we find
Mississippi Rule of Civil Procedure 81(g) instructive: “When no procedure is specifically
prescribed, the [trial] court shall proceed in any lawful manner not inconsistent with the
Constitution of the State of Mississippi, these rules, or any applicable statute.” M.R.C.P.
81(g).
9
The Advisory Committee Note to Rule 1 adds that “[t]he primary purpose of
procedural rules is to promote the ends of justice; these rules reflect the view that this goal
can best be accomplished by the establishment of a single form of action . . . thereby uniting
the procedures in law and equity through a simplified procedure that minimizes
technicalities and places considerable discretion in the trial judge for construing the rules
in a manner that will secure their objectives.” (Emphasis added.)
8
discretion. Douglas v. Burley, 134 So. 3d 692, 697 (Miss. 2012) (citing Venton v. Beckham,
845 So. 2d 676, 684 (Miss. 2003)). “[A]n abuse of discretion is viewed as a strict legal term”
and does not “imply[ ] bad faith or an intentional wrong on the part of the trial judge.” White
v. State, 742 So. 2d 1126, 1136 (Miss.1999). In Douglas, the Court ruled,
[J]udicial discretion is not boundless but is defined as a sound judgment which
is not exercised arbitrarily, but with regard to what is right and equitable in
circumstances and law, and which is directed by the reasoning conscience of
the trial judge to just result. An abuse of discretion means clearly against logic
and effect of such facts as are presented in support of the application or against
the reasonable and probable deductions to be drawn from the facts disclosed
upon the hearing.
Douglas, 134 So. 3d at 697 (emphasis added) (footnotes omitted) (citations omitted) (internal
quotation marks omitted).
¶23. In the reassignment order, Judge Green stated that the purpose of the reassignment
was to serve “judicial economy and efficiency of different circuit judges presiding over
several different cases with the same or similar issues to be resolved.” She further stated that
these cases “should be reassigned to the undersigned judge on the bases of judicial economy
and efficiency, and also to minimize the risk of inconsistent judicial rulings in the several
cases.”10 The order also offered that this case “involves extensive and complex litigation,
which requires the utmost attention from the judge presiding over the matter.” (Emphasis
added.)
10
Judge Gowan was also familiar with this litigation. He previously had granted a
motion to dismiss in a similar case.
9
¶24. Yet, at the same time the reassignment order was entered, Judge Green also entered
the special-master order. There, Judge Green appointed a special master and gave the special
master extensive powers, which will be addressed below. It is important to our review here
that we also consider Judge Green’s explanation for the appointment of a special master. In
the special-master order, Judge Green ruled,
The parties in this case have filed numerous pretrial motions pertaining to
discovery, privileged matters, arbitration and other disputed matters. The
herein Court is pressed to promptly and thoughtfully dispose of litigated
matters associated with the trial demands of its heavy civil and criminal
docket, as well as, its duties associated with the overall management of the
circuit court. Currently, the Court is without the personnel and resources to
thoroughly and closely manage the operation of the massive discovery process
believed to be forthcoming in the herein case.
(Emphasis added.)
¶25. The wording of these orders is contradictory.
¶26. In Canadian National/Illinois Central Railroad Co. v. Smith, the Court found “it
appropriate to provide further clarification as to the disposition of the claims and cases of
misjoined plaintiffs, following severance.” Canadian Nat’l/Ill. Cent. R.R. Co. v. Smith, 926
So. 2d 839, 844 (Miss. 2006). The five plaintiffs in Smith improperly joined their claims
under Mississippi Rule of Civil Procedure 20, so the plaintiffs agreed to sever their claims.
Id. at 841. The Court stated,
[I]n ordering the agreed severance, Hinds County Circuit Judge Tomie Green
proclaimed that the claims of the five remaining plaintiffs were “properly filed
in the First Judicial District of Hinds County,” and that “this action shall
proceed as to the claims of Larry Polk.” The other four plaintiffs were required
to file amended complaints and obtain new civil action numbers from the
10
clerk. Specifically, Judge Green ordered that four of the plaintiffs “shall be
severed from this action, and shall file amended complaints, and the Clerk is
hereby ordered to assign new cause numbers for those actions reassigning
those cases to the Honorable Judge Tomie T. Green.”
Id.
¶27. The defendants in Smith argued that Judge Green had “improperly circumvented the
random assignment of cases required by” Rule 1.05A when she ordered the four cases
reassigned to her after they were given new cause numbers. Id. The Court, however,
expressly chose not to address that issue: “[W]e decline to address issues of random
assignment . . . .” Id. at 842. Despite this conclusion, the Court afforded Judge Green the
benefit of the doubt:
Because the suits of all five plaintiffs were originally assigned to her, and
because she concluded that all five plaintiffs could properly pursue their claims
in the First Judicial District of Hinds County, Judge Green thought it
appropriate to retain the case of one plaintiff and order the clerk to assign her
the other four.
Realizing this is an issue of first impression, and giving Judge Green the
benefit of the doubt (to which she is certainly entitled), we cannot say her
decision was unreasonable or without legitimate purpose. Judicial economy,
alone, could explain her decision to retain five similar cases filed against the
same defendant.
Id. at 842 (emphasis added).
¶28. We recognize that cases are reassigned and transferred in the courts of this State. In
fact, most reassignments or transfers go unchallenged as judges diligently work together,
seeking “justice, uniformity, and [] efficiency of courts.” See M.R.C.P. Order Adopting
M.R.C.P. Additionally, our Rules of Evidence express similar purposes. We are to
11
“administer every proceeding fairly, eliminate unjustifiable expense and delay, . . . to the end
of ascertaining the truth and securing a just determination.” M.R.E. 102.
¶29. Thus, we are of the opinion that any reassignment or transfer of a case would be
improper and would not be allowed to stand if it was “unreasonable or without legitimate
purpose.” Smith, 926 So. 2d at 842.
¶30. First, we are concerned by the irregularity of the reassignment order’s having been
signed by Judge Green, who was not the presiding judge, instead of Judge Gowan, to whom
the case had been assigned. While circumstances may warrant another judge’s signing an
order in a case, the better practice is for the judge assigned the case to sign an order
reassigning it. We also believe the better practice would be to give the parties notice and an
opportunity to address reassignment in advance of any reassignment order.
¶31. Second, we are concerned that the reasons for the reassignment, which were
articulated in the reassignment order, clearly contradict and are in opposition to the reasons
given for the special-master order. The reassignment order clearly stated that its goal was
judicial economy and efficiency. Yet, the special-master order stated,
The herein Court is pressed to promptly and thoughtfully dispose of litigated
matters associated with the trial demands of its civil and criminal docket, as
well as, its duties associated with the overall management of the circuit court.
Currently, the Court is without the personnel and resources to thoroughly and
closely manage the operation of the massive discovery process believed to be
forthcoming in the herein case.
(Emphasis added.)
¶32. The procedural irregularities in the entry of the reassignment order and the totality of
12
the circumstances require that we conclude the reassignment of this case by Judge Green was
not based on a reasonable, legitimate, or justifiable reason. Accordingly, we vacate the
reassignment order and remand this case with instructions to the Hinds County Circuit Clerk
to return this case to the docket of Subdistrict 4, with Circuit Judge Faye Peterson presiding.
2. Did the circuit court abuse its discretion in appointing a special
master?
¶33. Next, Safeco challenges Judge Green’s appointment of a special master. We review
this issue for an abuse of discretion. Massey v. Massey, 475 So. 2d 802, 806 (Miss. 1985)
(“The reference to a master is discretionary with the trial judge . . . .”).
¶34. The State filed a motion to consolidate, which included a request to appoint the same
special master serving in State Farm also to serve as special master in this case. Like State
Farm, Safeco objected to the appointment. This Court has “recognize[d] that reference to
a special master without the consent of the parties is the exception and not the rule.” Lewis
v. Lewis, 54 So. 3d 216, 218 (Miss. 2011) (citing M.R.C.P. 53(c)). And any “reference
without the consent of the parties would require a finding by the [trial judge] of exceptional
conditions.” Id. at 219. But just as she had done in State Farm, Judge Green gave little, if
any, consideration to the objection.11 Without conducting a hearing, the trial judge
11
Judge Green entered the order appointing the special master the same day Safeco
filed its objection to the State’s request to appoint a special master, indicating that she gave
little or no weight to the fact that Safeco had objected. Under Rule 53(c), an objection by
one of the parties to the appointment of a special master triggers the requirement of finding
an “exceptional condition” exists to justify the appointment to which the parties had not
consented. M.R.C.P. 53(c). See also Lewis, 54 So. 3d at 219.
13
immediately entered a sweeping appointment order granting the special master judicial
authority, beyond that permitted by Rule 53. After review, we find the trial court abused its
discretion and, thus, vacate the order.
¶35. The trial court’s order appoints an New Orleans-based attorney12 to serve as special
master. The primary duty assigned to him is to supervise discovery. But the order does not
limit his authority to discovery. Although stating that the court “shall be the final arbiter of
all pretrial and trial issues,” the order expressly grants the special master “concurrent
jurisdiction” with the trial court. And it empowers him “to address all litigation matters.”
Further, the order grants the special master express authority “to participate in ex parte
contact with counsel.”13 A particularly curious aspect of the ex parte provision is its
authorization to maintain the secrecy of ex parte contact by excusing the special master “from
In State Farm, no party requested the appointment of a special master—Judge Green
appointed one sua sponte after State Farm filed a motion to dismiss. State Farm objected
to the order, citing the fact the order failed to specify the powers being conveyed under Rule
53(d) and failed to justify the appointment under Rule 53(c). Judge Green overruled State
Farm’s objection, and State Farm did not seek permission to file an interlocutory appeal.
12
The appointed special master is authorized to practice law in Mississippi, as
required by Mississippi Rule of Civil Procedure 53(b).
13
Specifically, the order provides,
IT IS FURTHER ORDERED that the Special Master and his staff be
expressly given the authority to participate in ex parte contact with counsel for
all parties in these proceedings as the [c]ourt views ex parte exchanges will
be extremely helpful to the Special Master’s ability to assist the parties and the
[c]ourt in managing these proceedings much more efficiently than it would be
without them.
14
the obligation of providing detailed descriptions of his activities in his Invoices and Requests
for Distributions of Funds.” As to compensation, the order sets the special master’s
compensation at $250 per hour and reimburses him for lodging and travel from the New
Orleans, Louisiana, area to Mississippi.
¶36. An initial problem with the order is the broad authority it gives to the special master.
The order grants the special master “concurrent jurisdiction” with the circuit court. Really,
the order appoints an attorney to serve as a de facto special judge—an appointment that is
unquestionably beyond the trial judge’s discretionary authority under Rule 53. Judge Green’s
given justification for this broad delegation of judicial authority is the court’s heavy docket
and lack of personnel and resources to handle the case. Furthermore, in her order appointing
the special master, Judge Green maintained, “[t]he parties in this case ha[d] filed numerous
pretrial motions pertaining to discovery, privileged matters, arbitration and other disputed
matters.” But from our review of the record, this is simply not so. The reality is that there
were not numerous disputed discovery or arbitration matters pending—indeed, there were
none. The record does, in fact, show that the only motions pending were two motions to
dismiss filed by Safeco, plus a motion to stay discovery pending the outcome of the dismissal
motions. But even if these representations were true, Rule 53 is not the appropriate vehicle
to hand off judicial duties based on backlogged dockets and resources constraints.14
14
Part of the justification for the appointment is the fact the same special master has
already been appointed in a similar case before the same court. But we note the other case
involves almost thirty times more individual homeowners insurance policies than in this
15
¶37. Instead, to address these specific problems, Mississippi has a statutory procedure for
appointing special judges. Mississippi Code Section 9-1-105(2) (Supp. 2018) provides,
(2) Upon the request of . . . the senior judge of a . . . circuit court district, . .
. or upon his own motion, the Chief Justice of the Mississippi Supreme Court,
with the advice and consent of a majority of the justices of the Mississippi
Supreme Court, shall have the authority to appoint a special judge to serve on
a temporary basis in a circuit . . . court in the event of an emergency or
overcrowded docket. It shall be the duty of any special judge so appointed to
assist the court to which he is assigned in the disposition of causes so pending
in such court for whatever period of time is designated by the Chief Justice.
The Chief Justice, in his discretion, may appoint the special judge to hear
particular cases, a particular type of case, or a particular portion of the court’s
docket.
(Emphasis added.) While the appointment may be general in nature, it may also be tailored
so the special judge hears a particular case or a particular type of case. Id.
¶38. By contrast, the purpose of special masters—and the trial judge’s discretionary
authority to appoint them—is more narrowly tailored. Typically, courts utilize Rule 53
special masters to review facts, to organize information, and to give comprehensive
recommendations or reports to assist the judge in making his or her decision. These
arrangements may certainly extend to discovery management. But Rule 53 does not permit
a trial judge to bring in a private attorney—over the objection of one of the parties—to serve
for all intents and purposes as the trial judge. If a trial judge anticipates that a case will be
too complex and time consuming, requesting the chief justice to appoint a special judge is
case—thousands of policies as opposed to the mere 232 Safeco policies at issue in this
matter and the 180 policies in the companion case, Liberty Mutual Insurance Co. v. State,
No. 2017-IA-01588-SCT (Miss. Aug. 22, 2019).
16
the appropriate route. See Massey, 475 So. 2d at 806 (cautioning that, “[i]f it is the intent
of the trial judge to appoint a special judge,” and not simply a special master, “then [s]he
should avail h[er]self with specificity of” the statutory procedures for obtaining a special
judge).
¶39. The second abuse of discretion concerns the order’s explicit authorization allowing
the special master to participate in ex parte communication with counsel.
¶40. Under Canon 3B(7) of the Code of Judicial Conduct—which applies equally to special
masters as it does to judges15—“[a] judge shall not initiate, permit, or consider ex parte
communications[.]” While Canon 3B(7) makes an exception for “ex parte communications
for scheduling, administrative purposes, or emergencies that do not deal with the substantive
matters or issues on the merits,” such ex parte communications are only allowed if “the judge
makes provision promptly to notify all other parties of the substance of the ex parte
communication and allows an opportunity to respond.” Miss. Code of Jud. Conduct, Canon
3B(7)(a)(ii).
¶41. Instead of requiring that all parties be notified of the substance of the ex parte
communications and given an opportunity to respond, the circuit judge’s order does the exact
opposite. It instead takes extra measures to craft a provision aimed to ensure that any ex
parte communications remain confidential. Specifically, the order excuses the special master
15
A special master is considered a “judge” for these purposes. Miss. Code of Jud.
Conduct, Application A.
17
“from the obligation of providing descriptions of his activities in his Invoices and Requests
for Distribution of Funds” for the express purpose of preventing other parties from knowing
ex parte communications occurred. This is a clear violation of Canon 3B(7) and is outside
the bounds of Rule 53. It also violates Rule 53(a), which governs a special master’s
compensation. Rule 53(a) entitles a special master to “reasonable compensation for services
rendered.” But, here, under this concealed-billing approach, there is no way to determine if
a special master’s requested compensation is reasonable without knowing the particular
services rendered.
¶42. The order itself acknowledges the blind-billing provision is “unusual.” But we find
it is more than that. Requiring both parties—one of which is the State of Mississippi—to pay
an attorney in Louisiana to act as a judge, allowing either side to meet with him ex parte, and
not requiring this special master to mention these meetings or even justify or detail his bill
far exceeds the discretionary authority to appoint special masters under Rule 53.
¶43. For these reasons, we vacate the order appointing the special master.
¶44. VACATED AND REMANDED.
RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ.,
CONCUR. ISHEE, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE
WRITTEN OPINION. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY KING, P.J. KING, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KITCHENS, P.J.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶45. I respectfully dissent from the majority’s finding that the trial court abused its
18
discretion in case reassignment. Reasonable and legitimate grounds existed for reassignment
within the sound discretion of the Hinds County Circuit Court, and I find that no abuse of
that court’s discretion has occurred.
¶46. This Court consolidated three cases from Circuit Court of the First Judicial District
of Hinds County for purposes of interlocutory appeal.16 Circuit Court District Seven,
comprised of Hinds County only, is a multi-judge district. The three cases initially were
assigned randomly to circuit court judges under Uniform Civil Rule of Circuit and County
Court Practice 1.05A. The original assignments were as follows:
(1) Safeco - Circuit Court Judge William Gowan
(2) Liberty Mutual - Senior Circuit Court Judge Tomie Green
(3) Cannon - Circuit Court Judge William Gowan
¶47. Safeco and Liberty Mutual have similar factual backgrounds.17
¶48. On March 29, 2017, the State filed these suits against Safeco and Liberty Mutual,
alleging misadjustment of 232 homeowner-insurance claims by Safeco and 180 claims by
16
(1) Safeco Ins. Co. of Am. v. State, No. 2017-IA-01554-SCT (Miss. Aug. 22, 2019)
(Safeco); (2) Liberty Mut. Ins. Co. v. State, No. 2017-IA-01558-SCT (Miss. Aug. 22, 2019)
(Liberty Mutual); (3) Vinod Khosla, et al., v. State, No. 2017-IA-01637-SCT (Miss. Aug.
22, 2019) (Cannon). The parties refer to the third case as Cannon rather than Khosla
because the original complaint in the underlying action was styled Hood ex rel. Mississippi
v. Fred Cannon et al., No.: 15-CV-00017 (Hinds Cty. Circuit Court, 1st Jud. Dist., filed
Jan.13, 2015) (Cannon).
17
Safeco is a subsidiary of Liberty Mutual; Safeco and Liberty Mutual filed the same
appellant’s brief under their respective docket numbers in this Court.
19
Liberty Mutual. Safeco was assigned randomly to then-Circuit Judge Gowan’s18 docket;
Liberty Mutual was assigned randomly to Senior Circuit Judge Green’s docket.
¶49. Before filing Safeco and Liberty Mutual, the State had sued Metropolitan Property
and Casualty Insurance Company (Metropolitan). That case had been assigned to Judge
Gowan. Safeco and Liberty Mutual emphasize that Judge Gowan had ruled against the State
in Metropolitan—a case with pretrial issues very similar to those in Safeco and Liberty
Mutual—on pretrial matters before Safeco and Liberty Mutual were filed. Safeco and
Liberty Mutual point out that Judge Green had not ruled on any of the similar pretrial
motions filed in the HAP cases randomly assigned to her. The first HAP case, brought
against State Farm Fire & Casualty Company (State Farm), was filed on April 21, 2015.19
Judge Green had not ruled on similar motions filed in State Farm, and on July 17, 2017, she
appointed a special master—Bobby Harges, J.D., LLM20—to handle the discovery process
in State Farm.
¶50. On October 13, 2017, the State filed a motion to consolidate State Farm, Safeco, and
Liberty Mutual, and for the appointment of a special master. The motion was filed in State
18
Judge Gowan retired in March of 2018.
19
Mississippi ex rel. Hood v. State Farm Fire & Cas. Co., No. 1:15-cv-00221-TTG
(Hinds Cty. Circuit Court, 1st Jud. Dist., filed April 21, 2015).
20
Mr. Harges is a licensed attorney in Mississippi and Louisiana. Although criticized
by the majority for residing in Louisiana, I believe that his credibility is enhanced by his
relative remoteness from Mississippi politics and by the fact that he never practices before
the Circuit Court of Hinds County.
20
Farm, and notices of that filing were filed in Safeco and Liberty Mutual. The State moved
for consolidation under Mississippi Rule of Civil Procedure 42(a) and also sought to have
Special Master Harges administer Safeco and Liberty Mutual once consolidation had
occurred. Both Safeco and Liberty Mutual filed objections to consolidation under their
respective docket numbers.
¶51. On October 23, 2017, Judge Green signed an order entitled “Order Reassigning Case”
under the Safeco docket number. The order reads, in part,
[T]his case should be reassigned to [Judge Green] on the bas[i]s of judicial
economy and efficiency, and also to minimize the risk of inconsistent judicial
rulings in the several cases.
Pursuant to the undersigned judge’s statutory authority:
IT IS THEREFORE ORDERED AND ADJUDGED that therein in case
[sic] shall be reassigned to the docket of Senior Judge Tomie Green (by
agreement of Judge Bill Gowan) for all further proceedings.21 Further, upon
reassignment, the Court shall consider the appointment of Special Master
Bobby Harges and the Consolidation of this case with similar cases brought by
the Mississippi Attorney General.
¶52. Also on October 23, 2017, Judge Green signed an order appointing Special Master
Harges to Safeco and Liberty Mutual. The two special master appointment orders were
entered into the court record on October 24 and 25, 2017, while the reassignment order was
entered on October 26, 2017. From these orders Safeco and Liberty Mutual petitioned this
Court for interlocutory review.
21
While the parties and the circuit court judges refer to the moving of a case from one
judge’s docket to another as a “reassignment,” this occurrence could be called a “transfer.”
21
¶53. Regarding the alleged abuse of its discretion in the appointment of a special master
in Safeco and Liberty Mutual, I would not vacate the special master appointment for the
reasons discussed in Presiding Justice King’s separate opinion, with which I concur fully. On
appeal, the petitioners and the State assert several different issues. The central issue
presented respecting the reassignment order may be summarized as follows:
May trial court judges in a multi-judge district reassign cases amongst
themselves?
¶54. The majority answers that question in the affirmative: circuit judges do have the
authority to reassign and transfer a case, and that reassignment does not violate the random
assignment requirement of Rule 1.05A. Moreover, this Court allows trial courts to manage
their own dockets, and that function firmly resides within the power of those courts.22 The
same is true of the federal system. See United States v. Stone, 411 F.2d 597, 599 (5th Cir.
22
For example, Rule 2 of the Local Rules of the Fifteenth Circuit Court District allows
the following procedure:
Once a case is assigned to a Judge by the letter system, that Judge shall handle
that case until final disposition. For good cause, a Judge may transfer a case
to another Judge of the District for that Judge’s handling and, upon transfer,
the clerk is to add a hyphen and the letter of that Judge’s Place to show the
case has been transferred.
If Safeco were correct, judges in the Fifteenth Circuit Court District would be in
violation of the Code of Judicial Conduct every time a case was transferred under Rule 2 of
that district’s local rules, which this Court has approved. Such a result should not be
ascribed to the Code of Judicial Conduct inasmuch as we have legitimized intra-court
reassignment or transfer as being within judicial discretion. See also Fifth Chancery Court
District Local Rule 14 (“A case may be transferred to another division only by agreement
of the Chancellor of the divisions involved.”).
22
1969) (“District judges may by rule, order or consent transfer cases between themselves. .
. . [and] have the inherent power to transfer cases from one to another for the expeditious
administration of justice.” (citing 28 U.S.C.A. § 137 (West 2018))).
¶55. The majority favorably cites our decision in Canadian National/Illinois Central
Railroad Co. v. Smith, 926 So. 2d 839 (Miss. 2006), in which this Court recognized that trial
court judges have authority to retain or assign cases without implicating Rule 1.05A. Maj.
Op. at ¶¶ 26-27. Further, the majority, citing Smith, acknowledges that this Court gives
considerable discretion to the authority of trial courts to “reassign” cases intra-docket:
Because the suits of all five plaintiffs were originally assigned to [Judge
Green], and because she concluded that all five plaintiffs could properly
pursue their claims in the First Judicial District of Hinds County, Judge Green
thought it appropriate to retain the case of one plaintiff and order the clerk to
assign her the other four.
Realizing this is an issue of first impression, and giving Judge Green the
benefit of the doubt (to which she is certainly entitled), we cannot say her
decision was unreasonable or without legitimate purpose. Judicial economy,
alone, could explain her decision to retain five similar cases filed against the
same defendant.
Smith, 926 So. 2d at 842 (emphasis added).
¶56. While today’s majority would not allow a reassignment to stand if “unreasonable or
without legitimate purpose,” this Court, in Smith, afforded Judge Green “the benefit of the
doubt” regarding the trial court’s prerogative to reassign cases. Contrary to our precedent,
the majority in this case declines to give Judge Green the benefit of the doubt. Moreover,
here we have detailed explanations from the judges themselves on the reasons for
23
reassignment.
¶57. Both Judge Green and Judge Gowan, at this Court’s request, filed responses to these
appeals on November 13, 2017, explaining the reasons for their actions concerning
reassignment or transfer. The judges strongly defended and provided support for
reassignment: inter alia, Judge Gowan stressed that he agreed to the reassignment “for the
purposes of judicial economy, since Judge Green was assigned the earlier case and the most
number of insurance cases, and in an effort to ensure that the requisite amount of attention
and efficiency was maintained in this case.” Judge Green additionally responded that “[a]fter
the undersigned judges reviewed the files of State Farm [], Liberty [], and Safeco [], the
undersigned [] agreed that judicial economy and efficiency demanded that the Court
transfer/reassign Safeco from Judge Gowan to Judge Green who had already been properly
assigned the State Farm and Liberty Mutual insurance cases.” The trial court took these
actions within the legitimate context of case management and in anticipation of
consolidation. The majority, however, (as Judge Gowan found regarding Safeco’s
contentions), “insert[s] an intention that was completely absent from the thought-process
behind the attempt to consolidate these factual[ly]-similar matters.”
¶58. Judge Green and Judge Gowan did not act inconsistently with any Mississippi law.
“Trial courts have inherent authority and duty to control their dockets for the orderly disposal
of business.” Harris v. Fort Worth Steel & Mach. Co., 440 So. 2d 294, 296 (Miss. 1983);
see also Hanson v. Disotell, 106 So. 3d 345, 347 (Miss. 2013) (“Our precedent clearly
24
provides trial judges the ‘inherent authority to dismiss cases for failure to prosecute as a
means of controlling the court’s docket and ensuring [expeditious] justice.’” (alteration in
original) (quoting Watson v. Lillard, 493 So. 2d 1277, 1278 (Miss. 1986))); Smith v.
Normand Children Diversified Class Tr., 122 So. 3d 1234, 1238 (Miss. Ct. App. 2013)
(“Trial courts in Mississippi likewise have the inherent authority to control their own
dockets. . . . The decision of whether to consolidate cases remains within the sound discretion
of the trial court.” (internal quotation marks omitted) (citations omitted)).
¶59. It is not suggested that judges in multi-judge districts have inherent and ultimate
authority over their colleagues’ dockets. I would hold that, when judges in the same district,
who, acting in agreement, reassign or transfer cases between or amongst themselves, their
inherent authority over their dockets empowers them to do so absent a contrary rule,
controlling precedent, or statute.
¶60. Judge Green’s order reassigning Safeco to her docket expressly did not consolidate
Safeco, Liberty Mutual, and State Farm: “Further, upon reassignment, the [c]ourt shall
consider . . . the [c]onsolidation of this [case] with similar cases brought by the Mississippi
Attorney General.” But the State had moved for consolidation under Rule 42, and Judge
Green and Judge Gowan explained that the reassignment was for purposes of eventual
consolidation. Notwithstanding that consolidation in the trial court was yet to occur, no law
prohibited Judge Green and Judge Gowan from reassigning the case in the manner they did,
regardless of whether consolidation came to fruition before or after the reassignment, or not
25
at all. Moreover, the senior circuit court judge in a district has statutory authority to do as
Judge Green did under Mississippi Code Section 9-7-3(5) (Rev. 2015) (“The senior judge
shall have the right to assign causes and dockets . . . .”).
¶61. Although it is conceivable that one could craft principles respecting “best practices”
to accomplish reassignment, any possible procedural irregularities do not preponderate
against the “reasonable, legitimate, or justifiable reason” the circuit judges provided for their
actions. Under these circumstances, I would uphold the order of reassignment in deference
to these judges’ discretion and inherent authority. Circuit Judges Green and Gowan acted
within their lawful authority and in the complete absence of any nefarious or corrupt motive.
Amid accusations by Safeco that somehow they were complicit in a “judge-shopping”
enterprise, and at the behest of this Court, these seasoned trial judges provided reasonable
explanations for the case transfer or reassignment. They supported their decisions with
numerous, relevant citations. These respected jurists, possessed of more judicial experience
than most members of this Court, conscientiously exercised the well-established authority
the majority recognizes they could wield, and they have in nowise abused their discretion.
¶62. I would affirm the Hinds County Circuit Court’s reassignment or transfer of the
instant case to Senior Judge Green’s docket, and I would affirm that Court’s appointment of
Special Master Harges with the modifications suggested by Presiding Justice King.
KING, P.J., JOINS THIS OPINION.
KING, PRESIDING JUSTICE, DISSENTING:
26
¶63. I join Presiding Justice Kitchens’s dissent as to Part I of the majority opinion. I agree
with Part II of the majority opinion only to the extent that the Court finds inappropriate and
reverses the portion of the trial court’s order that allows ex parte communications, and the
corresponding blind billing provision. However, I do not believe that the overall
appointment of a special master was an abuse of discretion; instead of reversing the
appointment of a special master, I would reverse and remand the order for the trial court to
reconsider the duties and authorities of the special master, and to eliminate the ex parte
communications and blind billing provisions. Accordingly, I respectfully dissent.
Additionally, I write further to explain my objections to any suggestion that this Court should
appoint special judges to Hinds County.
A. Special Master
¶64. Part II of the majority opinion opines that the entire order was “sweeping” and beyond
the authority permitted by Rule 53. Maj. Op. ¶ 34. It insinuates that the order should “limit
his authority to discovery.” Maj. Op. ¶¶ 35, 38. It further complains that the order empowers
the special master “to address all litigation matters.” Maj. Op. ¶ 35. Additionally, it opines
that Rule 53 does not allow appointment of a special master due to a heavy docket or lack
of resources to handle a particular case. Maj. Op. ¶ 36. With all due respect, the majority’s
interpretation of the narrow limits of Rule 53 belies both Rule 53 itself, and this Court’s
caselaw.
1. Reasons to Appoint a Special Master
27
¶65. The majority argues that Rule 53 does not allow a judge to appoint a special master
because that judge has a crowded docket or is faced with a particular type of complex case.
Yet, nothing in Rule 53 prohibits a trial judge from doing so. Rule 53 states that, when the
parties do not consent to a special master, “a reference shall be made only upon a showing
that some exceptional condition requires it.” Miss. R. Civ. P. 53(c). This Court has held
that “we will not assume that a trial judge of this state would issue an order of reference
without some exceptional condition requiring it.” Massey v. Massey, 475 So. 2d 802, 806
(Miss. 1985). While the trial court in this case did point to its heavy docket, it also justified
the appointment of a special master by “the complex issues involved in this case and the
numerous pre-trial and discovery disputes filed and anticipated[.]”23 Indeed, the “complexity
of modern civil litigation” is one reason attributed to the increasingly common nature of
special master appointments. 2 Jeffrey Jackson et al., Miss. Practice Series: Civil Procedure
§ 26:1 (updated May 2019), Westlaw. “The rules governing civil practice in Mississippi and
elsewhere are bottomed on three values: justice, speed and economy. . . . In some cases,
special masters can assist the court by improving the quality of fact finding through more
investigation of complex issues and the lending of the master’s expertise to the court.” Id.
(citing Miss. R. Civ. P. 1). Furthermore, the trial court is in the best position to determine
23
The majority emphasizes the fact that not many disputes had already been filed in
the case. While this is true, the court also cited that it anticipated numerous disputes. Part
of properly preparing to manage a case is anticipating problem areas. The court had ample
experience with a case of the same the nature and the counsel on both sides in that case. The
court’s anticipating numerous disputes based on experience is not far-fetched.
28
whether complexities in a case are sufficiently exceptional to warrant reference to a special
master. Miss. Power Co. v. Miss. Pub. Serv. Comm’n, 135 So. 3d 887, 891 (Miss. 2014).
Thus, I would find that the trial court’s reasons for appointing a special master were not an
abuse of discretion.
2. Authority of a Special Master
¶66. Rule 53 allows a court the discretion to grant a special master powers that are either
broad or narrow in nature.
The order of reference to the master may specify or limit his powers and may
direct him to report only upon particular issues or to do or perform particular
acts or to receive and report evidence only and may fix the time and place for
beginning and closing the hearing and for the filing of the master’s report.
Subject to the specifications and limitations stated in the order, the master has
and shall exercise the power to regulate all proceedings in every hearing before
him and to do all acts and take all measures necessary or proper for the
efficient performance of his duties under the order. He may require the
production before him of evidence upon all matters embraced in the reference
....
Miss. R. Civ. P. 53(d) (emphasis added). Rule “53(d) does not require that the order specify
or limit the powers of the master, but only provides that the order ‘may’ do so; otherwise, the
powers of the master are broad.” Massey, 475 So. 2d at 806. Special masters have even
conducted the trial on the merits. See, e.g., Loggers, L.L.C. v. 1 Up Techs., L.L.C., 50 So.
3d 992, 993 (Miss. 2011). Additionally,
special masters have been appointed to prepare accountings, determine profits,
determine partnerships rights, equitably wind-up and dissolve businesses,
value business interests, investigate estate administration, hold divorce
hearings and consider compliance with divorce judgment, hold contempt
hearings, hold civil commitment hearings, hold bar reinstatement evidentiary
29
hearings, reconcile conflicting land surveys, conduct factual investigations,
inventory assets and debts to determine an equitable distribution of personal
property, certify a church congregation’s vote on whether to retain its pastor,
partition property, resolve discovery disputes, and rule on pre-trial evidentiary
issues.
Jackson, et al., supra, at § 26:1. Indeed, “a reference containing no limitations is a general
reference to report on all the issues, both of law and fact, involved in the litigation.” Banks
v. Banks, 648 So. 2d 1116, 1124 (Miss. 1994) (quoting 5A James Wm. Moore et al., Moore’s
Federal Practice Ch. 53 (2d ed. 1994)). The primary restriction on a special master is that
“the court cannot . . . refer the whole case to the master for final decision.” Id. (quoting
Moore, supra, at Ch. 53). The court, therefore, must decide issues and render a final
decision. Id. (quoting Moore, supra, at Ch. 53). Further, a special master is not authorized
to order parties to perform specific duties as a result of a hearing. Id.
¶67. The majority relies heavily on the trial court’s statement that it “retains concurrent
jurisdiction with the Special Master in this case and the Court shall be final arbiter of all
pretrial and trial issues.” While I agree that the trial court’s use of the phrase “concurrent
jurisdiction” was not an optimal word choice, I disagree that, read in context, this phrase
granted the full jurisdiction of the court to the special master. The trial court clarified that
it was the final arbiter of all issues, and the court was to make all final decisions, as is
appropriate and mandated. Rather than granting the special master the full jurisdiction of the
court, as the majority insinuates, this statement, while admittedly inartfully worded, is an
attempt to clarify that the broad grant of authority to the special master did not deprive the
30
trial court of its jurisdiction, and it reserved all final decision-making exclusively to the trial
court. I would therefore conclude that the appointment of a special master, even one with
broad and general powers, was not an abuse of discretion.24 Consequently, I would reverse
the portion of the trial court’s order regarding ex parte contact and blind billing, and would
remand the entire order for the trial court to revisit, clarify, and define the duties and
authority of the special master.
¶68. The majority, with its rulings that trivialize and minimize Judge Green’s ability,
judgment, and findings, is micromanaging the administration of the Hinds County Circuit
Court and this particular judge. The Court of Appeals has mentioned overcrowded dockets
in three other counties in its 2019 opinions alone, yet this Court is not clamoring to appoint
special judges and micromanage those courts. In Sullivan v. Maddox, the Court of Appeals
noted that in Simpson County Judge Shoemake appointed a special master because he had
a full calendar, as well as administrative responsibilities. Sullivan v. Maddox, No. 2017-CA-
00418-COA, 2019 WL 3423397 (Miss. Ct. App. July 30, 2019). This Court is also aware
of other troubles in Simpson County that would contribute to congested dockets, namely the
24
I am also concerned with the majority’s inexplicable focus on the state of residence
of the special master and the insinuation that this should be disqualifying, even while
admitting that the special master meets the explicit qualifications of Rule 53(b). The special
master was born in Mississippi, attended Mississippi State University and the University of
Mississippi School of Law, taught at the University of Mississippi School of Law, is
admitted to the Mississippi Bar, has published articles on Mississippi law, and has sat on the
board of directors of the Mississippi Bar Alternative Dispute Resolution Section. The fact
that he is currently a law professor in Louisiana is hardly disqualifying, nor does Rule 53
make the special master’s state of residence a disqualifying issue.
31
suspension of Judge Shoemake in 2016. See Miss. Comm’n on Judicial Performance v.
Shoemake, 191 So. 3d 1211 (Miss. 2016). The Court of Appeals has also flagged
overcrowded dockets as an issue (and a seemingly pervasive one) in Harrison County, which
trigger speedy trial issues. May v. State, No. 2017-KA-01415-COA, 2019 WL 2183468(Miss. Ct. App. May 21, 2019); see also Parks v. State, 228 So. 3d 853 (Miss. Ct. App.
2017). Scott County has also recently been flagged as having crowded docket problems,
triggering speedy trial issues. Ford v. State, No. 2018-KA-00395, 2019 WL 2353432 (Miss.
Ct. App. June 4, 2019). If the majority is so concerned about overcrowded dockets and the
administration of justice, why, then, is it not also advocating for judges in these courts,
namely Harrison County Circuit Court, Simpson County Chancery Court, and Scott County
Circuit Court, to request the appointment of special judges? What is the difference between
Hinds County Circuit Court and the other courts who cite overcrowded dockets? Is it a
difference in personalities of the judges? Or is some other clearly distinguishing factor the
difference? The failure to treat all courts citing crowded dockets equally is puzzling.
B. Special Judges
¶69. The majority suggests that its members may be open to the sua sponte appointment
of special judges to Hinds County by the chief justice of this Court.25 Again, why the
25
I note the hypocrisy in disallowing Judge Green to appoint a special master in
accordance with Rule 53 and our caselaw in order to move cases along, and then forcing
special judges on Hinds County because they have not moved cases along to the majority’s
satisfaction.
32
majority is so focused on special judges in Hinds County, and Hinds County alone, is
puzzling.
¶70. I agree that this Court has constitutional responsibility for the administration of
justice, and that responsibility includes ensuring that the dockets in all courts in the state
move at a pace commensurate with ensuring justice. And I agree that Mississippi Code
Section 9-1-105 is one of the methods by which this Court may implement that responsibility.
I am not diametrically opposed to the appointment of special judges in Hinds County as a
general matter; I simply think that appointment at this juncture is premature and lacks
foundation. Section 9-1-105 gives the chief justice, with the consent of a majority of the
justices of this Court, the authority to appoint a special judge “in the event of an emergency
or overcrowded docket.” Miss. Code Ann. § 9-1-105 (Rev. 2014). This Court does not have
adequate proof of either to appoint a special judge.
¶71. No true foundation exists regarding the need to appoint special judges in Hinds
County beyond reputation and statements regarding the judges being busy. This Court
decides matters according to facts shown in the records before it. Underwood v. State, 708
So. 2d 18, 26 (Miss. 1998). This Court does not generally engage in speculation, conjecture,
supposition, or guesswork regarding the facts necessary in a case. Sears, Roebuck & Co. v.
Learmonth, 95 So. 3d 633, 637-39 (Miss. 2012) (Randolph, J., for the Court). We do not
have accurate or reliable facts before us at this juncture to determine whether an “emergency
or overcrowded docket” exists. I would be open to the consideration of such an appointment
33
should the judges of Hinds County request such an appointment, or should facts be adduced
regarding the pace of the administration of justice in Hinds County, indicating that an
emergency or overcrowded docket necessitates the appointment of a special judge. I also
note, should this Court eventually consider such an appointment in Hinds County due to a
crowded docket, that this Court’s responsibility for the administration of justice requires that
we apply the same standards to all the various courts of the State.
KITCHENS, P.J., JOINS THIS OPINION.
34