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Hewes v. Langston9/11/2003
our years already. Their argument is disingenuous. Under Section 165, Langston has not only a right to petition the Governor for the appointment of a "special justice," when a Justice of this Court has recused himself but attempt to get the other litigants to agree on substitutions. This right cannot be taken away without due process of law. Additionally, under Hoskins v. Howard, 214 Miss. 481, 502, 59 So.2d 263, 271-73 (1952), the appointment of a special judge pursuant to Section 165 is necessary if the appointment of such judge could affect the outcome of the proceedings.
. It is also worth noting, that currently before this Court on Motion for Rehearing is the case of Wise v. Valley Bank, -- So.2d -- , 2003 WL 21101211 (Miss. 2003). The Petitioners in Wise also attempt to invoke Section 165 and claim that they were prejudiced by the recusal and/or non-participation of a Justice. They argue that the outcome of the case could have been different if nine Justices would have decided their case. One has to wonder, why the rush to an "emergency" en banc in the present case, and not in the Wise case? I am of the opinion that more litigants have been aggrieved by the manipulative affect of recusal and/or non-participation of Justices so that the outcome is changed. Maybe if the legal community opens its eyes to see the underhanded practices of the "majority caucus," then eventually someone will convince this Court to change their beliefs or convince someone else that a system of checks and balances is needed to ensure that Justice is indeed "blind."
Interestingly enough, the "majority caucus" does not complain about the Governor's appointment of Justice Carlson to the bench in 2002. Even the facts surrounding this appointment seem more than a little sketchy. Justice Carlson and his wife own the controlling shares of the Bank of Batesville. As a member of the banking industry, Justice Carlson and Aubrey B. Patterson, Jr., the BankcorpSouth President, are "acquaintances" to say the least. It is not a coincidence that Justice Carlson was appointed by the Governor, since Aubrey Patterson, attorney Richard F. Scruggs, and Governor Ronnie Musgrove are friends. It is also suspicious and causes concerns that Justice Carlson has not recused himself from this case despite the fact that Scruggs is an attorney in this case. Perhaps there was a higher calling since Langston is considered a trial lawyer and Patterson is diverse to them.
. As to the merits of Langston's claims regarding the application of the crime/fraud exception to the confidential in camera documents, I stand by my original dissent. Since my original dissent correctly analyzes the facts and law, I will not change one word and will only restate its contents as an illustration of how convinced I am that the crime/fraud exception applies.
. This interlocutory appeal has been before this Court for over four years concerning a pre-trial discovery matter. One can only wonder if the delay has been intentional. In the present proceeding, the case has flipped twice. Justice Cobb won back the majority recently after a Justice recused himself. It is of the utmost importance that Article 6, Section 165 of the Mississippi Constitution be utilized here where so few Justices are participating in the case. Under that provision, the Governor is given power to appoint a Special Justice "to preside at such term or during such disability or disqualification in the place of the judge or judges so disqualified." Miss. Const. art. 6, ยง 165.
. The majority erroneously finds that the thirty documents, which the trial judge reviewed in camera and ordered production, are protected by the attorney client and work product privileg
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