A Rules suggestion

Philip Thomas Blog referred to my recent discussions on the Rules.  I thought no one was paying any attention. While I’ve been campaigning, I’ve found that most lawyers realize that there is a problem with our Rules.  First, there are too many.  Second, they have too many pages. And, third, there are times you think no one ever considers how the Rules may interact.

Philip talked about a “shot clock” on judicial opinion.  At the COA, we have a 270 day rule.  I don’t see the problem with having a time expectation on judicial opinions.

Certainly, with motion hearings, if the judge doesn’t rule on the motions in so many days, the Rules should say that the motion is either deemed denied or the movant must reschedule the hearing.  One of the problems with this is that there are many motions that should be granted or denied without a hearing.  Hearings can often be a big waste of time.

The Supreme Court’s Rule Change Schedule

Why is it the Supreme Court can’t issue Rules changes on a schedule?

Thus far in 2016, the Court has issued 9 Rule changes.  At least 3 were issued on one day, and one the following day.  Why not issue them once a month, or once a quarter, or some other schedule?

June 20, 2016
The Supreme Court amended Rule 28(a)(4) of the Mississippi Rules of Appellate Procedure. The amendment is effective June 20, 2016.
June 17, 2016
The Supreme Court amended the Mississippi Rules of Evidence by granting the Advisory Committee on Rules’ Motion to Restyle the Mississippi Rules of Evidence. The amendments are effective July 1, 2016.
June 16, 2016
The Supreme Court amended Section 9.A.5 of the Administrative Procedures for Mississippi Electronic Courts. The amendment is effective June 16, 2016.
June 16, 2016
The Supreme Court amended Section 6.A.5 of the Appellate E-Filing Administrative Procedures. The amendment is effective June 16, 2016.
June 16, 2016
The Supreme Court amended the Mississippi Rules of Evidence by substituting the title “Advisory Committee Note” for the title “Comment” for each comment to the Mississippi Rules of Evidence. The amendment is effective June 16, 2016.
May 26, 2016
The Supreme Court amended Rule 103 of the Mississippi Rules of Evidence. The amendment is effective July 1, 2016.
May 11, 2016
The Supreme Court amended Rule 28 of the Mississippi Rules of Appellate Procedure. The amendment is effective June 1, 2016.
May 5, 2016
The Supreme Court amended Rule 22(d) of the Mississippi Rules of Appellate Procedure. The amendment is effective April 28, 2016.
February 11, 2016
The Supreme Court amended the Mississippi Rules of Civil Procedure to include Rule 5.1. The amendment is effective July 1, 2016.

I forgot about these.

Here are some interesting ones from the Uniform Chancery Court Rules.

  1. Two Rules that say the same thing?

RULE 2.03 NO BLANKS IN PLEADINGS
No blanks shall be contained in any pleading.

RULE 2.06 BLANKS IN PLEADINGS MUST BE FILLED IN
All blanks contained in any pleading must be properly filled in according to the fact or facts before being filed with the clerk or presented for consideration by the Court or Chancellor. If the pleader does not know, and is unable to learn, the necessary fact or facts to enable him to fill in such blanks accurately, he must so state in his pleading.

2.  Demurrers?  We got rid of demurrers in the 1980’s.

RULE 2.10 TRIAL NOT DELAYED BECAUSE DEMURRER IS OVERRULED
The complainant shall not be delayed of a trial in any case because a demurrer is overruled. If, in such a case, the defendant has failed to file his answer with his demurrer he shall, if the complainant so insists, be required to answer within such time as will not delay the trial beyond the term.

Does anyone know what a demurrer is?

The Rules – The really big one.

What do we do about Rule 81?  The Conference of Chancery Judges passed a motion to move the notice provisions to Rule 4.  The Civil Rules Advisory Committee passed it to the Supreme Court.  It’s been out for comment.  What will the commenters say?

I’ve heard several Justices wonder out loud –  why do we say that the Rules supplant the Statutes but allow the statutes to control certain statutory claims?  Could you not just follow the MRCP to resolve all claims brought in Miss. Courts?

Why would you have your Notice provision at Rule 4, and then 77 rules later you say, oops, we have a different notice provision in some cases?

The Rules – Where do we go?

In the last couple of posts, I just wanted to point out several rules that were redundant or overkill in Mississippi’s Court Rules.

I served a term on the Committee for Continuing Judicial Education.  What concerned me is why we do not make the reporting of CLE efficient.  If we have “Rules and Regulations for Mandatory Continuing Legal Education,” can’t you just add a section on how you report that you have completed the required courses.  Do you really need separate rules for lawyers, judges, court reporters and court administrators?

My pet peeve is that the rules could be consolidated to make life a little bit more simple.

If the Supreme Court is going to be responsible for the Rules, they need to make the rules clear, concise and easier to understand.

 

The Rules – Where do we go?

Recusal of Judges.  Would one Rule do?

Uniform Circuit Court Rule 1.15 – MOTIONS FOR RECUSAL OF JUDGES
Any party may move for the recusal of a judge of the circuit or county court if it appears that the judge’s impartiality might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law. A motion seeking recusal shall be filed with an affidavit of the party or the party’s attorney setting forth the factual basis underlying the asserted grounds for recusal and declaring that the motion is filed in good faith and that the affiant truly believes the facts underlying the grounds stated to be true. Such motion shall, in the first instance, be filed with the judge who is the subject of the motion within 30 days following notification to the parties of the name of the judge assigned to the case; or, if it is based upon facts which could not reasonably have been known to the filing party within such time, it shall be filed within 30 days after the filing party could reasonably discover the facts underlying the grounds asserted. The subject judge shall consider and rule on the motion within 30 days of the filing of the motion, with hearing if necessary. If a hearing is held, it shall be on the record in open court. The denial of a motion to recuse is subject to review by the Supreme Court on motion of the party filing the motion as provided in M.R.A.P. 48B.

Uniform Chancery Court Rule 1.11 –MOTIONS FOR RECUSAL OF JUDGES
Any party may move for the recusal of a judge of the chancery court if it appears that the judge’s impartially might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law. A motion seeking recusal shall be filed with an affidavit of the party or the party’s attorney setting forth the factual basis underlying the asserted grounds for recusal and declaring that the motion is filed in good faith and that the affiant truly believes the facts underlying the grounds stated to be true. Such motion shall, in the first instance, be filed with the judge who is the subject of the motion within 30 days following notification to the parties of the name of the judge assigned to the case; or, if it is based upon facts which could not reasonably have been known to the filing party within such time, it shall be filed within 30 days after the filing party could reasonably discover the facts underlying the grounds asserted. The subject judge shall consider and rule on the motion within 30 days of the filing of the motion, with hearing if necessary. If a hearing is held, it shall be on the record in open court. The denial of a motion to recuse is subject to review by the Supreme Court on motion of the party filing the motion as provided in M.R.A.P. 48B.

Uniform Justice Court Rule 1.10 – RECUSAL OF JUDGES
If a justice court judge recuses himself or is otherwise unable to serve in a case, the case shall be rotated to another justice court judge of the county. If no justice court judge is able to serve because of recusals, or is otherwise unable to serve, then a circuit court judge of the district, in consultation with the recused judge(s), may appoint any justice court judge from a surrounding county to hear the case.

Mississippi Rules of Appellate Procedure 48B  – PROCEEDINGS ON MOTION FOR DISQUALIFICATION OF TRIAL JUDGE.
If a judge of the circuit, chancery or county court shall deny a motion seeking the trial judge’s recusal, or if within 30 days following the filing of the motion for recusal the judge has not ruled, the filing party may within 14 days following the judge’s ruling, or 14 days following the expiration of the 30 days allowed for ruling, seek review of the judge’s action by the Supreme Court. A true copy of any order entered by the subject judge on the question of recusal and transcript of any hearing thereon shall be submitted with the petition in the Supreme Court. The Supreme Court will not order recusal unless the decision of the trial judge is found to be an abuse of discretion. Otherwise, procedure in the Supreme Court shall be in accordance with M.R.A.P. 21. Appointment of another judge to hear the case shall be made as otherwise provided by law.