Jackson Jambalaya

Jim Hood found out the old adage "Be careful what you ask for" applies even to him after U.S. District Judge Henry Wingate denied his motion to remand a lawsuit against Entergy to state court. The Attorney General asked the Fifth Circuit Court of Appeals to order Judge Wingate to rule on the motion. The court did so on August 17 and Judge Wingate said fine, you want a ruling, here's a ruling. Hope you're happy after I ruled against you. Should've quit while you were ahead, bucko.

The Attorney General filed a suit in Hinds County Chancery Court in 2008 alleging Entergy and several Entergy-related companies in other states overcharged customers. The state claimed the overcharging occurred from 1974 to 2008. Entergy removed the lawsuit to federal court at the end of 2008, claiming diversity jurisdiction. Federal courts are authorized to hear state cases if the claim is over $75,000 and the parties are from different states. Most of the action in the case took place in 2009, including a challenge by Mr. Hood to the removal. Nothing was filed in 2010. Three motions were filed in 2011. The AG filed a request for a status conference about the case on July 20, 2011. The AG then filed his petition for a writ of mandamus with the 5th Circuit. Judge Wingate issued his ruling on August 25, eight days after the granting of the writ of mandamus. A writ of mandamus is a court order directing a public official or lower court to perform a duty.

Judge Wingate ruled the case will stay in federal court despite Mr. Hood's efforts to move the lawsuit back to state court. The court said there was evidence less than two-thirds of the affected customers were from Mississippi as the state included present and past customers as victims in its lawsuit. The state argued over 95% of the current customers were in Mississippi but said Mr. Hood "has made statements on the record in a state court proceeding which indicate that the intends to claim restitution for individual ratepayers both past and present." Entergy also presented evidence not challenged by the state that the damages if it lost could range from $25 million to $200 million. However, the court did point out the parties had not yet engaged in discovery and the state could question the amount in controversy again if it found it to be less than $75,000 after discovery.

Hinds County Circuit Judge Tomie Green extended the temporary restraining order* granted to Attorney General Jim Hood another ten days and required ten inmates now free to call in every day. Judge Green issued the tro on January 11 blocking the state from releasing any convicted felons pardoned by Governor Barbour. The Attorney General asked Judge Green to invalidate most of the pardons granted by former Governor Barbour. Judge Green set the next hearing on February 3, 2012 at 1:00 PM.

The courtroom was a who's who of the top defense lawyer in Mississippi. Ed Blackmon, Bill Kirksey, John Collette, Cynthia Stewart, Jane Tucker, Tom Fortner, and more were all there. Lobbyists crowded the audience, unable to resist the political drama Haley's pardons created as a horde of deputies kept order. Ironically the safest place in Jackson at 3:00 PM today was Judge Green's courtroom.

The hearing began with Tom Fortner telling the court he represented Nathan Kern, Anthony McCray, David Gatlin, and Charles Hooker. All were pardoned by Governor Barbour and the subject of Jim Hood's motion. Judge Green surprised the courtroom by telling Mr. Fortner he had not notified the court he was representing them. Mr. Fortner informed the court he had filed notice with the circuit clerk on January 20 and emailed a copy to Judge Green's adiminstrator. Didn't matter. Judge Green rebuked him "Counsel, that is not the way you serve the court is by email not to a court administrator. She's not here. So may I have a copy of what you allegedly filed?" Apparently filing notices and motions with the circuit clerk is not considered a proper court filing in Judge Green's courtroom. One prominent defense lawyer said after the hearing the new rule is to serve Judge Green no matter where she is, even if out eating dinner.

Mr. Fortner had filed a motion asking the court to transfer the case back to Judge Weill, claiming Judge Green had removed the case after it was randomly assigned to junior circuit judge. Mr. Fortner also alleged the Attorney General had a conflict of interest, claiming AG lawyers helped prepare the notices and processed the pardon applications and later suing their own client- the Governor.

The lawyer for the Attorney General addressed the court (5:00 clip 1). Although four pardonees appeared in court, Joseph Ozment did not appear and the AG said he had not been found. The AG sought to amend the motion to block the pardons by adding five more convicts: Kirby Glenn Tate, Aaron Brown, Joshua Howard, Azikiwe Kambule, and Katharine Robinson. These individuals were John Does in the original motion. Judge Green allowed the amendment. Sylvia Owen (rep. Tate), Cynthia Stewart, and Ed Blackmon objected to no avail. Ed Blackmon told the court he had a hearing for habeas corpus on Thursday in Yazoo City. Ms. Owen said the same thing about her client but in Sunflower County. Both challenged the jurisdiction of the court but again did so in vain.

Judge Green again took it upon herself to lecture the attorneys present(24:50 of clip 1): "All of you know how to practice law. And I would expect this court to listen to what you have to say and talk through the motions, and those motions have to be proffered before the court. Now I am good, but I am not so good (FIGJAM)that you can come the day of the hearing and start throwing motions in baskets, the day before the hearing through emails. This hearing was conducted on the 9th, we are now on the 23rd, with everyone having an opporotunity that if everyone wanted the court to consider their motions, they would have properly done so. I have allowed the amendments to the original complaint..."

Judge Green later said the case was a "simple issue" (7:45 of clip 3). The issue is whether the constitution has been complied with. It is my understanding that the only persons who will be addressed are persons who are fully and completely pardons. The hearing today was for those persons who were ordered to appear.... The only question before this court is whether the conditions for felony conviction and publication has been met. It doesn't change with which circuit judge hears the case... It will not become a case about this judge..."

Mr. Fortner raised the issue of whether a conflict of interest existed (18:20 in clip 3). Mr. Fortner pointed out in his brief the AG advised MDOC and participated in the publication of the notices, arguing the AG "assumed responsibility to publish them in the first place." He compared it to a law firm representing both sides of a dispute. The AG called it a "thinly veiled attempt" to divert the court's attention. The AG said each lawyer assigned to an agency represented that agency, not the AG. Judge Green rejected Fortner's argument and said the responsibility for publishing the notice rested with the "applicant" and that the Attorney General is "authorized to raise ANY issues of constitutionality". She further told Mr. Fortner his motion was "without merit".

Here are the tweets from the hearing as it took place.. Note: Governor Barbour's lawyer filed an amicus curiae brief.

*Rule 65(b) of the Mississippi Rules of Civil procedure state: "A temporary restraining order may be granted, without notice to the adverse party or his attorney if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed ten days, as the court fixes (except in domestic relations cases, when the ten-day limitation shall not apply), unless within the time so fixed the order for good cause shown is extended for a like period"

Judge Green issued the original order without notice to several parties as allowed by the rule and they only had ten days to file anything. The AG complaining it didn't have time to read these when it was the one who asked for the emergency TRO was rich.

Watch the first five minutes of the first one. Tells you all you need to know about how the hearing went.

The Democrats just issued the following press release calling the bill to limit attorney's fees a retaliatory measure against Attorney General Jim Hood:

"Jackson, MS- In response to Attorney General Jim Hood’s efforts to stop former Gov. Haley Barbour’s release of over 200 Mississippi felons, including murderers, rapists and child sex offenders, a Republican senator has introduced a barrage of retaliatory legislation.

On Friday, two days after Hinds County Circuit Judge Tomie Green temporarily blocked the pardons of 21 current and former inmates at the request of Hood, Senator Joey Fillingane (R-Sumrall) introduced Senate Bills 2084 and 2102, bills aimed at limiting the powers of the Attorney General to hire outside legal counsel to prosecute complex claims on behalf of the State.

“This retaliatory stunt couldn’t come at a worse time,” said Rep. Bob Evans (D-Monticello). “At this moment, General Hood is working to recover tens of millions owed to the state’s retirement system, now is not the time to tie his hands.”

Democrats say S. B. 2084 and 2102 are aimed at keeping the Attorney General’s Office from recovering taxpayer money for egregious acts against the State. During his most recent term of office, Hood recovered over $500 million on behalf of Mississippi taxpayers in civil litigation that didn’t cost taxpayers a dime.

At issue is the Mississippi Attorney General’s Office’s ability to contract with outside counsel to represent the state for costly recovery actions. The practice has been the target of United States Chamber of Commerce funded entities such as the American Legislative Exchange Council for almost a decade. Fillingane, like a number of his Republican colleagues, is a member of ALEC.

“We were able to kill these efforts in the House during the last term,” Evans said. “But the Republicans are determined to make sure Jim Hood is blocked from making their big business cronies pay when they do bad things to the State of Mississippi.”

Ironically, Fillingane, as former Chair of the Senate Judiciary A Committee, killed at least three bills that would have provided “sunshine” on the Mississippi pardon system now under scrutiny by news outlets nation-wide.

Evans said, "This is simple retaliation against the only statewide official who has taken action to protect Mississippians from Republican recklessness.” Evans added, “Senator Fillingane failed Mississippi victims and families when he killed these bills before. We can’t afford to let him compound the problem by grounding our chief law enforcement officer.”

PRESS NOTES:

S.B. 2739 in 2009; S.B. 2130 and 2170 in 2010; S.B. 2118 in 2011 were killed in the Fillingane Committee.

As a private attorney, Fillingane urged the Miss. Supreme Court to allow a felon convicted of robbery and drug sale to be allowed visitation of his child, over the unwed mother’s objection in Christian v. Wheat, 876 So.2d 341 (Miss. 2004). The Court rejected his plea.

For more information on ALEC:
http://www.thenation.com/article/161978/alec-exposed
www.alecexposed.org
www.alec.org


Editorial comment: Um, 5% of $30 million is...... $1.5 million, exclusive of costs. Please, send some of that retaliation my way. And the attorneys are limited to FIFTY MILLION DOLLARS in fees EXCLUSIVE of costs. Dammit, I want some retaliation.

Republican Senator Joey Fillingange didn't waste any time filing a bill to change the way Jim Hood does business. SB#2102 will place limits on the fees attorneys can receive in contingency fee contracts with the state. Current law does not place any limits on attorney's fees in such suits. Section 1(c)provides the proposed guidelines:

1. 25% of any portion of a recovery not exceeding $10 Million PLUS
2. 20% of any portion of a recovery between $10 million & $15 million PLUS
3. 15% of any portion of a recovery between $15 million & $20 million PLUS
4. 10% of any recovery between $20 million and $25 million PLUS
5. 5% of any recover over $25 million.

The bill also limits the fees to $50 million excluding actual and reasonable costs and regardless of the number of attorneys involved in the litigation.
The bill mandates a government attorney "with supervisory capacity shall be personally involved in overseeing the litigation" and will have veto power over any decisions made by "outside counsel". Copies of the contracts between the private attorneys and the A.G. shall be posted on the his website within five days after the contract is executed. Payments of contingency fees would be posted on the website within 15 days after payment as well.

The bill has been referred to Senate Judiciary "Committee".

Editorial comment: This bill is high on the list of Republican objectives and its no surprise this bill was filed on the first day. This bill will probably move like a freight train through the Legislature to the Governor's desk.