Sunday, October 28, 2018

An Intriguing and Powerful Dissent

Many years ago, in one of my first legal jobs, I was paid to peruse a weekly stack of various-colored papers ("slip opinions") issued by the Mississippi Supreme Court. These decisions encompassed all of the Court's decisions for a particular week. The pages' coloring had a significance, the details of which elude me today. But essentially,  certain categories of decisions were printed on yellow paper, others on blue, green, etc. The benefit being that a busy lawyer might nonetheless remain current on her or his specialty by perusing only those decisions on a particular paper color. 

For whatever reason, the firm that employed me wanted a written synopsis of each of the cases, a "Cliff notes" version created each week and distributed the following Monday. At the time, the Mississippi Supreme Court was the only appellate court in Mississippi, so there were often numerous and diverse topics. Summarizing its decisions was a difficult burden some weeks when the Court was busy, but other weeks not so much.

Over the years, I have managed to forget virtually all of those cases. Many were interesting in the moment, and my job was to analyze them. But time fades memories. One I have never forgotten stuck with me for several reasons. I learned of it reading and summarizing Lambert v. State, 574 So.2d 573 (Miss. 1990). In Lambert, Justice Hawkins concurred (agreed) with a separate opinion. He agreed with the decision, and argued for the reversal of Hall v. State, 539 So.2d 1338 (Miss. 1989), rendered almost two years previously, in which he colorfully and eloquently dissented. 

Following that thread, I read Hall, and it has stuck with me for these many years. First, the topic of constitutional powers was central to the analysis, and the Constitution is a personal favorite. Second, the decision included a masterfully written dissent and at the time I was only beginning to appreciate the power of civil disagreement. Third, the Hawkins dissent in Hall referenced Florida, which was where I then intended to soon move. And, finally, the opinion gave prose to a Mississippi legend, memorializing what was perhaps a Hollywood-worthy moment in the course of oral argument. 

Justice Hawkins' Hall dissent came rushing back to me early this century as the Florida Supreme Court contemplated its role in Florida workers' compensation rule promulgation. Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004). His thoughts crossed my mind again when the Florida Supreme Court declined to adopt the legislative imposition of a stricter evidentiary standard (the Daubert standard) for opinion testimony in Florida court cases. In re Amendments to the Florida Evidence Code, 210 So.3d 1231 (Fla. 2017). See Daubert, We Hardly Knew Ye, or Do We?

Justice Hawkins' dissent in Hall was enlightening. The case focused on elements of the Mississippi Rules of Evidence, and the admissibility of information in court. The State sought to introduce evidence precluded by those court rules, under the authority of a statute passed by the Mississippi legislature. The Hall majority conceded that the statute "appear(ed) to suggest admissibility," but explained that rule-making power for courts was the exclusive province of the courts. It noted its evolution to Court-enacted rules stating that in 1981 "we crossed the Rubicon as the Court entered its Order Adopting the Mississippi Rules of Civil Procedure." Such judicial prose seems increasingly rare. The symbolism of both the Rubicon and crossing are noteworthy. 

Upon the conclusion that constitutional structure both created government and defined roles, the Hall majority focused upon separation of powers. From that separation of powers, the Court concluded that it and it alone had province to make rules for litigation. It perceived the legislative action as encroaching upon that power, and as such unconstitutional. Therefore, the trial court's admission of evidence under that statutory provision, in seeming violation of the Court's hearsay rules, mandated reversal for a new trial. Having "crossed the Rubicon," the Court remained colorful in declining to address other points raised on appeal, noting:
"What we have said above is adequate to adjudge this appeal. The bite is quite as much as we this day ought chew."
Justice Hawkins alone dissented. In an opinion that is both courteous and direct, the foundations of the majority analysis are questioned. And in that text, he recounts the legend of Mississippi attorney Weaver Gore. His was a story recounted in lawyer gatherings in Mississippi; though perhaps few remembered his name, most knew of the story, to which REO Speedwagon's lyrics might aptly apply ("And the tales grow taller on down the line"). 

You see, it seems that Weaver Gore found himself in an argument in court. As the legend is recounted by Justice Hawkins, "he is reputed to have been reading from his law book in making an argument," only to be interrupted by the judge, who told him, “that's not the law, Mr. Gore.” Justice Hawkins recounts that "whereupon, Mr. Gore tore the pages from his book and replied, 'If this is not the law, I don't want these pages in my book.'" I have heard the story told many times, and a fair few who also have will likely agree that Justice Hawkins' version is not necessarily one of the most embellished or fanciful they have heard. That alone makes this dissent interesting reading. 

But, Justice Hawkins proceeds. Perhaps answering the invitation of literary prose proffered by the majority ("Rubicon"), he too waxes a bit eloquent, noting that the 
"majority is stingy with its citations. Other states' experiences with this question are ignored. The citations the majority does give, as examination reveals, are no support." 
In the proverbial nutshell version, when I was a child on the playground, we regularly encapsulated such lofty espousal with a simple "oh huh." Justice Hawkins' language, with its courteous criticism impressed me in 1990, and its allure remains today.

See, Justice Hawkins believed that the "Legislature acted well within its sphere of Constitutional authority" in passing the statute in question. He perceived "no Constitutional authority in strike it." and accused instead the Court of "trespassing into forbidden territory, and not the Legislature in passing an Act." And he explained the lack of judicial authority quoting a poem by Samuel Coleridge, Xanadu:
"In Xanadu did Kubla Khan, A stately pleasure dome decree, Where Alph, the sacred river, ran Through caverns measureless to man, Down to a sunless sea."
Justice Hawkins explained that "Kubla Khan, being a dream king, did not need to build a palace; he simply 'decreed' it out of thin air," and he accused the majority of essentially doing the same with its assumption of power to strike the legislative enactment. 

Justice Hawkins reminds of the essential nature of our constitutional republic, that power comes to government not through some divine right or presumption, but from the people themselves. The people grant the government its right to exist, and the people, he reminds us, speak through their elected representatives, not through appointed judges. He reminds us that
"it is strange reasoning for the majority to say that the people, speaking through the Legislature, the only manner in which they can speak, can enact no such law under our Constitution." 
Truly a point to ponder. He drives the point home noting in conclusion "the majority is not picking a fight with the Legislature, but with the people. Guess who is going to win?" That may be the most intriguing phrase of the dissent, despite the lofty reference to Xanadu and the entertaining Weaver Gore story.

Justice Hawkins notes that "generally throughout the United States it has been accepted that the Legislature was exercising a Constitutional prerogative in passing procedural or evidentiary statutes." He describes legal encyclopedic support for his contention, and that "several hundred decisions are cited under each." Justice Hawkins cautions of “inherent power,” noting that it "can get risky. It can get especially so when there is no one to dispute the claim" (a rephrasing perhaps of the old saw "absolute power corrupts absolutely"). 

And, Justice Hawkins bolstered his rebuttal with "other states," naming in particular Florida. He noted that "in most states their Supreme Courts either have been given specific constitutional or statutory authority to promulgate rules of practice." He noted that Florida differs from Mississippi in that the Florida Supreme Court's authority comes from "The Florida Constitution," which "expressly directs that its Supreme Court 'shall adopt rules for practice and procedure in all courts.'” And despite that grant of power, he argued that Florida legislative adjustments to the admissibility of evidence had nonetheless occurred; accepted in Florida to some extent, but deemed unconstitutional by the majority in Mississippi. 

Justice Hawkins accused the majority of embracing "a quixotic idea that the umpire of a game should be vested with the exclusive authority to prescribe the rules." He explained that "this ignores the players, the ones who ultimately win, as well as the one who must suffer the misery following losing." His is an indictment of judicial activism in the strongest terms. He cautioned that in limiting or delineating which rules should be stricken, through any "attempt to clearly separate rules into 'substantive' and 'procedural' is a quagmire." He reminded that "a court is created to administer justice, to decide cases, to administer the law in court on a case-by-case basis, not to legislate." He lamented the majority action, and predicted repercussion. Justice Hawkins closed quoting Thomas Hobbes “Hell is learning the truth too late.”

Across the country, hundreds of legal decisions are rendered each day. It is hoped that the vast majority of them are decided by umpires who enforce, but who do not attempt to create, the rules of the game. On a dreary afternoon decades ago, I stumbled across Justice Hawkins' wisdom and wit. It resonated with me. Writing about it today, I lament that we never met. I would have enjoyed a conversation with him.

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