author: COLEMAN, JUSTICE, FOR THE COURT:

text:
    Candice Rae Shurden BALLARD v. Joe Marshall BALLARD and Teresa Ann Ballard
    NO. 2016-CA-00615-SCT
    Supreme Court of Mississippi.
    May 25, 2017
    ATTORNEYS FOR APPELLANT: JERRY WESLEY HISAW, H. R. GARNER
    ATTORNEYS FOR APPELLEES: A. E. (RUSTY) HARLOW, JR., KATHI CRESTMAN WILSON
    BEFORE DICKINSON, P.J., COLEMAN AND BEAM, JJ.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. Appellant Candice Ballard and Appellee Joe Marshall Ballard were married in 2006. The parties' marriage was turbulent at best, and they ultimately agreed to an irreconcilable differences divorce with the chancery court to decide issues, among others, of child custody and visitation, equitable division of property, and attorneys' fees. The chancery court entered a final order in the matter in 2016.

¶ 2. The bulk of Candice's appeal revolves around the chancery court's order denying her custody of the parties' three minor children based upon the chancery court's determination that both Candice and Marshall were "unfit" and that neither should be awarded custody pursuant to Mississippi Code Section 93-5-24-(9)(a)(ii) (the "family-violence presumption"). The chancery court awarded custody to the Mississippi Department of Human Services but placed the children with Marshall's parents. Candice challenges the custody decision, arguing the chancellor relied strictly on hearsay to establish her "unfitness" and history of family violence. Candice also claims error in the division of the marital estate because the chancellor failed to apply the Ferguson factors. Further, Candice argues she should have received attorney's fees because her parents paid her fees, and she must pay them back. Finally, Candice alleges the chancery court failed to decree possession of the lot upon which the marital home had been situated before its destruction by fire. As to the issues of custody and division of the marital estate, we reverse and remand; with respect to attorney's fees, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On June 10, 2006, Candice and Marshall married in Ashland, Mississippi.

Three children were born during the marriage: (1) Jane (born in 2007); (2) John (born in 2009); and (3) Jill (born in 2011). Neither party disputes the fact that Marshall is not the biological father of Jill, who was born as a result of a marital-separation affair.

¶ 4. On January 5, 2015, Marshall filed a Complaint for Divorce, and Candice filed an answer and countercomplaint on January 27, 2015. The chancery court appointed a guardian ad litem, directing the guardian ad litem to investigate allegations of neglect surrounding the children and prepare a report concerning her investigation. The order also provided that,

the GAL will be designated as an expert witness under Rule 706 of the Mississippi Rules of Evidence... [t]herefore, the opinions and recommendations offered by the GAL, and the factual basis derived in the course of the investigation, shall be governed by Rule 702, Rule 703, Rule 803(6), (8), (24) & (25); and Rule 804 of the Mississippi Rules of Evidence, and any other applicable rules governing the presentation of expert opinions.

Based on the court's order, the guardian ad litem compiled three reports detailing her interviews with twenty-one people.

¶ 5. Relevant to our discussion, the guardian ad litem's interviews uncovered multiple anecdotes that detailed domestic violence within the home. Specifically, the guardian ad litem noted she felt "that the fighting was a result of the actions and attitudes of both parties, although it does appear that Marshall was often the party that escalated to physical violence." The guardian ad litem specified there was no evidence that either parent ever physically abused the children. Even though some of the interviews detailed fighting between the couple, as to the family-violence presumption, the guardian ad litem stated she "does not feel that the presumption would apply to the facts of this case." Moreover, the guardian ad litem recommended the parties share joint legal custody of the children.

¶ 6. The case went before the chancery court on February 16, 2016. The guardian ad litem testified at trial extensively as to the findings in her three reports, which consisted entirely of interviews. Candice lodged numerous objections, arguing the guardian ad litem's testimony on what she was told in interviews constituted hearsay. The chancery court overruled the objections and allowed the guardian ad litem to present evidence from her reports, including interviews with the children outlining domestic abuse witnessed and the often poor conditions of the home and lack of food on many occasions. The guardian ad litem additionally testified about her interviews with school officials regarding their interactions with Marshall and Candice, with the school officials favoring Marshall as the more concerned and involved parent-a finding that Candice vehemently denied in her testimony.

¶ 7. The parties put on evidence regarding the division of marital property. Finally, Candice testified about her request for attorney's fees. The following exchange took place between Marshall's counsel and Candice:

Q. Mr. Garner is a very good attorney, and he's been paid by your parents, right, your mother?
A. Uh-huh. Yes.
Q. Okay. And-A. Alone.
Q. What are you supposed to do about that? Are you going to be paying your mother back?
A. I sure am.
Q. How are you going to do that?
A. I work.
Q. I know you work.
A. And I'll make payments if I have to.

¶ 8. After receiving both parties' proposed findings of fact and conclusions of law, the chancery court issued its opinion on March 4, 2016, and entered its order on March 14, 2016. The opinion first determined that the parental rights of Lawrence Blain Holden should not be terminated with regard to Jill. However, the chancery court did find that Marshall stood in loco parentis as it relates to Jill and "consider[ed] him as a proper party for the placement of legal and physical custody of [Jill.]" Next, the chancery court acknowledged that Marshall could not be considered for custody of Jill if there was a natural parent available. Relying on the guardian ad litem's report and testimony and Candice's "evasive" answers at trial, the chancery court concluded that Candice's "natural parent presumption [was] rebutted by clear and convincing evidence of her unfitness."

¶ 9. The chancery court went on to address custody of the children. The chancery court noted: "Due to the facts and circumstances surrounding this particular case, before the Court analyzes the Albright factors, the Court considers first the fitness of the parents to have custody of these children as well as the presumption against granting custody to a parent with a history of family violence." The chancery court acknowledged, but declined to follow, the guardian ad litem's recommendation that Candice and Marshall have joint legal custody, with Marshall having primary physical custody and Candice having visitation. In addition to reiterating that Candice was unfit, the chancery court determined that Marshall also was unfit based on his drug and alcohol abuse, domestic violence issues, and his other legal issues. Next, the chancery court applied the family-violence presumption codified in Mississippi Code Section 93-5-24(9)(a)(i) and found that both parties had committed domestic violence, "[t]herefore, it is not in the best interest of the children to give either perpetrator of domestic violence custody over the other."

¶ 10. Without ever actually reaching an Albright analysis in its opinion or order, the chancellor vested custody of the three minor children with the Mississippi Department of Human Services (DHS), and placed the children in the care of the Marshall's parents until they became unable or unwilling to care for the children, or whatever placement DHS determines is in the best interest of the children. The chancery court additionally addressed child support, alimony, and guardian ad litem fees, none of which are at issue in the present appeal.

¶ 11. As to the equitable division of the marital property, the chancellor found "that both parties have contributed equally to the acquisition of the [marital] property. Accordingly, the Court finds that each is entitled to one-half of the value of all of the [marital] property." The chancery court further explained that the parties might receive additional insurance proceeds from the marital house that was destroyed in a fire. By prior order, the chancery court had placed an equitable lien on any such proceeds, and, in the order of divorce, the chancery court ordered the funds to be used to pay the guardian ad litem and attorney's fees and expenses first, then $3,000 to Marshall, and if any remains, that amount to be split equally between the parties.

¶ 12. Lastly, the chancery court addressed the award of attorney's fees. Since the court found both parties were employed and were likely to receive more proceeds from insurance payouts and neither party had presented proof that he/she had an inability to pay; it declined to award attorney's fees.

¶ 13. On March 11, 2016, Candice filed a Motion for Reconsideration and/or Motion for New Trial, which the chancery court denied. Based on the above, Candice raises the following issues on appeal:

I. Whether the chancery court erred in denying Candice custody of her minor children by relying on guardian ad litem hearsay testimony in order to find Candice unfit and apply the presumption against custody to a parent with a history of family violence under § 93-5-24(9)(a)(i).
II. Whether the chancery court erred in dividing the marital estate due to the chancellor's failure to make factor findings under Ferguson on the record.
III. Whether the chancery court erred in failing to award attorney's fees to Candice because her parents paid her fees, and she must repay them.
IV. Whether the chancellor erred in failing to decree possession of the lot upon which the marital home formerly had been situated before it burned.

STANDARD OF REVIEW

¶ 14. Per well-established customs involving domestic disputes, a chancellor's conclusions of law receive de novo review. Chesney v. Chesney , 910 So.2d 1057, 1060 (¶ 5) (Miss. 2005) (citing Southerland v. Southerland , 875 So.2d 204, 206 (¶ 5) (Miss. 2004) ). However, "[a] chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous." Sanderson v. Sanderson , 824 So.2d 623, 625 (¶ 8) (Miss. 2002) (quoting Consol. Pipe & Supply Co. v. Colter , 735 So.2d 958, 961 (¶ 13) (Miss. 1999) ). In other words, "we cannot reweigh the evidence and must defer to the chancellor's findings of the facts, so long as they are supported by substantial evidence." Gateley v. Gateley , 158 So.3d 296, 301 (¶ 26) (Miss. 2015) (citing White v. White , 26 So.3d 342, 352 (¶ 31) (Miss. 2010) ). "However, the Court will not hesitate to reverse if it finds the chancellor's decision is manifestly wrong, or that the court applied an erroneous legal standard." Owen v. Owen , 928 So.2d 156, 160 (¶ 11) (Miss. 2006).

ANALYSIS

I. Guardian Ad Litem Hearsay and Custody

¶ 15. Candice takes issue with the chancellor's disposition of custody due to the chancellor's reliance upon hearsay. Specifically, Candice argues the chancery court relied upon the guardian ad litem's reports-which consisted mostly of hearsay-and the guardian ad litem's testimony-which was based in hearsay-as substantive evidence to establish her unfitness and trigger the family-violence presumption. To the extent that the chancellor relied on the hearsay contained in the guardian ad litem's report, we agree.

¶ 16. First, the Court notes the chancery court's failure to provide an Albright analysis. Parents enjoy-against third parties-a natural-parent presumption favoring an award of custody. In re Waites , 152 So.3d 306, 311 (¶ 14) (Miss. 2014). Only a clear showing of abandonment, desertion, immoral conduct detrimental to the child, and/or unfitness can rebut the presumption. Id. at 311-12 (¶ 15). However, the inquiry does not end once the presumption is rebutted. In re Dissolution of Marriage of Leverock & Hamby , 23 So.3d 424, 431 (¶ 24) (Miss. 2009). "If the court finds one of [the] factors [that rebuts the natural-parent presumption] has been proven, then the presumption vanishes, and the court must go further to determine custody based on the best interests of the child through an on-the-record analysis of the Albright factors . Id. (emphasis added). In other words, a finding that the natural-parent presumption has been rebutted does not end the inquiry into custody without an Albright analysis. If, on remand, the chancery court finds that the natural-parent presumption has been rebutted, then the chancery court must go on to consider the Albright factors to determine custody in the best interest of the children. We note that, even if, upon remand, the chancellor finds enough competent evidence to engage the family-violence presumption, the presumption is a rebuttable one. Miss. Code Ann. § 93-5-24(9)(a)(I) (Rev. 2013).

¶ 17. In any event, the chancery court erred in finding Candice to be unfit and applying the family-violence presumption. Candice argues the only "proof" presented at trial to establish her unfitness was inadmissible hearsay from the guardian ad litem. Similarly, Candice argues the chancery court relied on inadmissible hearsay to apply the family-violence presumption against her.

¶ 18. Candice is correct that the chancery court relied heavily on hearsay testimony in determining that she was unfit and that the family-violence presumption should be triggered. The chancery court's analysis determining Candice's unfitness focused primarily on the guardian ad litem's report and testimony and on Candice's evasive answers to questions at trial that indicated a "wariness to convey the truth." The chancery court concluded: "Based on the evidence as stated above, i[.]e., [Candice] failing to take responsibility for her actions or lack thereof, and continuing to blame others for her mistakes, the [chancery c]ourt finds by clear and convincing evidence that her natural parent presumption has been rebutted due to her unfitness." Additionally, in our review of the record, we could discern only one piece of nonhearsay testimony that indicated Candice had committed any act of family violence: when Marshall testified that Candice had beaten him with a lamp. Other evidence suggesting Candice had inflicted violence on Marshall came almost entirely from the guardian ad litem's reports and the guardian ad litem's testimony at trial, all of which consisted of the guardian ad litem's third-party interviews. None of the persons interviewed by the guardian ad litem testified at trial except the parties and one of Candice's daughters from a previous relationship. Despite a recommendation from the guardian ad litem in her supplemental report that the chancery court should not apply the family-violence presumption, the chancellor relied on the hearsay contained within her report to disagree with her recommendation and apply it.

¶ 19. In McDonald v. McDonald , 39 So.3d 868, 882 (¶ 47) (Miss. 2010), the Court addressed "whether the guardian ad litem acted beyond her authority by offering hearsay testimony without being qualified as an expert." The appellant in McDonald argued the chancery court erred in allowing a guardian ad litem to testify as to statements relayed to the guardian ad litem by teachers at a school. Id. at 884 (¶ 53). The McDonald Court set forth the "proper role" of a guardian ad litem as follows:

[A] guardian ad litem appointed to investigate and report to the court is obligated to investigate the allegations before the court, process the information found, report all material information to the court, and (if requested) make a recommendation. However, the guardian ad litem should make recommendations only after providing the court with all material information which weighs on the issue to be decided by the court, including information which does not support the recommendation. The court must be provided all material information the guardian ad litem reviewed in order to make the recommendation. Recommendations of a guardian ad litem must never substitute for the duty of a chancellor.

Id. at 883 (¶ 48) (citing S.G. v. D.C. , 13 So.3d 269, 282 (Miss. 2009) ). During trial of the case, the chancellor had overruled the objection to hearsay, claiming courts in Mississippi have a "historical practice" of allowing guardians ad litem to offer hearsay testimony. Id. The majority opinion in McDonald disagreed with the chancellor's view, holding, "We find that it was error for the chancellor to find that the rules of evidence did not apply in this adversarial proceeding." Id. Considering the above-quoted language defining the importance and role of the guardian ad litem along with the admonition issued by the McDonald Court regarding reliance on hearsay, we conclude the following: The guardian ad litem plays an important role, and-as set forth above-chancellors must consider all of the information available to the guardian ad litem when considering whether to follow the recommendation made. However, especially when a chancellor departs from the recommendation of the guardian ad litem, as happened here, the result reached by the chancellor must be supported by admissible, competent evidence rather than hearsay.

¶ 20. Presiding Justice Dickinson issued a specially concurring opinion in McDonald tailored to the issue of guardian ad litem testimony and hearsay. Id. at 887 (¶ 65) (Dickinson, P.J., specially concurring). His concurrence was joined by four other justices, giving the opinion precedential value. See Sweatt v. Murphy , 733 So.2d 207, 209-210 (¶ 7) (Miss. 1999) (noting that when at least four justices vote in favor of another justice's concurring opinion, the concurrence has "precedential value"). Addressing guardian ad litem hearsay, Presiding Justice Dickinson wrote, "Rule 1 of the Mississippi Rules of Evidence plainly says those rules apply in chancery court-and they include no exception for guardians ad litem." Id. The concurrence continued: "Certainly I agree that guardians ad litem-properly appointed under Rule 706 and qualified as experts under Rule 703-may rely on hearsay in reaching their opinions. But hearsay used to support an expert's opinion is quite different from hearsay admitted as substantive evidence." Id. (¶ 68). In other words, "pure, rank, un-cross-examined hearsay" by a guardian ad litem cannot be used as substantive evidence. Id. (¶ 68).

¶ 21. A dearth of Mississippi jurisprudence squarely addresses the issue of guardian ad litem hearsay being used as substantive evidence. However, as Presiding Justice Dickinson proclaimed in McDonald , our rules of evidence apply in chancery court; and the rules prohibit, subject to listed exceptions, the use of hearsay as substantive evidence. In view of the rule, the chancery court erred in relying on inadmissible hearsay to find Candice unfit and to invoke the family-violence presumption against Candice. Therefore, we reverse the chancery court's disposition on custody of the three minor children and remand for further proceedings.

II. Division of the Marital Estate and Ferguson Factors

¶ 22. Candice argues the chancery court erred in its division of the marital estate because it failed to make factor findings pursuant to Ferguson v. Ferguson , 639 So.2d 921, 928 (Miss. 1994). We agree with Candice. Ferguson provides eight factors a chancery court must consider "when attempting to effect an equitable division of marital property." Id. " Ferguson requires consideration of the [eight] factors, or a finding of inapplicability." Lowrey v. Lowrey , 25 So.3d 274, 286 (¶ 28) (Miss. 2009). The Court has held in no uncertain terms, "The failure to consider all applicable Ferguson factors is error and mandates reversal." Id. at 286 (¶ 29). Moreover, "[f]actor tests, such as provided in Ferguson for property division ..., must be considered on the record in every case." Id. at 280 (¶ 7) (emphasis added). However, the chancery court need only to consider the factors it finds are "applicable." Sproles v. Sproles , 782 So.2d 742, 748 (¶ 23) (Miss. 2001) (citation omitted) ("[T]he chancellor is not required to address each and every factor; indeed, the chancellor may consider only the factors he finds applicable to the marital property at issue.").

¶ 23. In its opinion, the chancery court divided the marital estate using the following language: "Examining the factors for equitable distribution as set forth in Ferguson , and further considering Hemsley v. Hemsley , 639 So.2d 909, 921 (Miss. 1994), the Court finds that both parties have contributed equally to the acquisition of the aforesaid property." Candice asserts the chancery court's opinion is just a "blanket statement," which fails to satisfy the Lowrey requirement of an "on the record" analysis of the Ferguson factors. Marshall claims the chancery court was not presented evidence with regard to the other Ferguson factors, and therefore, the chancery court must have found them irrelevant for discussion. At issue, though, is that the chancery court did not say what factors were "irrelevant" or "inapplicable." Lowrey requires a chancery court to analyze all eight Ferguson factors or provide a "finding of inapplicability ." Lowrey , 25 So.3d at 286 (¶ 28) (emphasis added). The chancery court's order does not satisfy Lowrey 's directive to make on-the-record findings, and, therefore, we remand for a more thorough analysis of the Ferguson factors.

III. Failure to Award Attorney's Fees

¶ 24. Candice argues the chancery court erred in failing to award her attorney's fees. In its opinion, the chancery court correctly articulated, "In the present case, the most plausible reason or argument for an award of attorney fees would undoubtedly be the inability to pay." The chancery court found Candice's "inability to pay has not been shown ...." Marshall argues the chancery court's ruling should be affirmed, and we hold in favor of Marshall.

¶ 25. Candice's parents paid her attorney's fees, but she testified that she will repay them. When asked how, she said, "I work." Now Candice argues she should receive an attorney's fee award because unrebutted testimony that a party has to repay her parents for attorney's fees is a proper basis for an award of the same. Candice cites Layton v. Layton 181 So.3d 275 (Miss. Ct. App. 2015), to support her proposition. Candice's reliance on Layton is misplaced. First, the chancery court in Layton had approved an award of attorney's fees, not disallowed one as with Candice. Id. at 288 (¶ 44). Second, while the appellee in Layton similarly had to repay her parents, the appellee admitted she would be unable to repay them. Id. at 288-289 (¶ 45). In contrast, Candice testified she could pay back her parents.

¶ 26. Next, Candice relies on Armstrong v. Armstrong , 618 So.2d 1278 (Miss. 1993), arguing the Court will require an attorney's fee award when unrebutted testimony establishes a party must repay her parents. We disagree with Candice's characterization of Armstrong . The appellant in Armstrong was denied attorney's fees at trial, and the Court did reverse the chancery court's decision because "[s]he had no separate funds or estate available to pay her attorney and was forced to borrow funds from her parents for this purpose." However, the Court's decision in Armstrong is more narrow than the broad application Candice suggests. Specifically, the Court held, "Under these circumstances , failure to award [the Appellant] the reasonable attorney's fees incurred was an abuse of discretion." Id. at 1282 (emphasis added). The language, "under these circumstances," indicates the Court's intent to limit a broad application of its holding. Moreover, the Court reemphasized the high standard of review as to an award of attorney's fees: "We have said time and time again that an award of attorney's fees in divorce cases is largely a matter entrusted to the sound discretion of the trial court." Id.

¶ 27. Based on the above, we are left unconvinced the Court's precedent establishes a broad, per se rule that, if a party to a divorce provides unrebutted testimony her parents paid for her attorney's fees, then the Court should find abuse of discretion every time a chancery court fails to award the fees. Rather, the issue is more factually sensitive in nature. For example, Candice said at trial that she will pay her parents back. Candice also potentially could expect, as the chancery court noted in his opinion, more proceeds from the insurance company, which the chancery court ordered to be used to pay for attorney's fees. Because of the facts discussed above, the chancery court did not abuse his discretion in failing to award Candice attorney's fees. Therefore, we affirm the chancery court's decision on attorney's fees.

IV. The Lot upon which the Marital Home Formerly had been Situated

¶ 28. Candice argues the chancery court failed to address, classify, divide, or make any findings with regard to what was to be done with the lot upon which the marital home, which had burned down, formerly had been situated. In its opinion, the chancery court found the marital property included "the marital home located at 2117 Hwy. 301 So., Hernando, MS 38632 which was destroyed by fire in November of 2015." As a result of the fire destroying the home, the parties did receive (and could potentially receive more) insurance proceeds. The chancery court provided for the distribution of the proceeds within its opinion. However, Candice is correct. Neither the opinion nor the order addressed the disposition of the lot. The chancery court must account for the lot in its division of the marital estate; as a result, we remand for further proceedings.

V. Discovery of Possible Misconduct by Appellee

¶ 29. While reviewing the record, we discovered Marshall had included documents sealed by court order within his record excerpts. Specifically, Docket # 17, the "Initial Report of the Guardian Ad Litem By Ginger M. Miller," was placed under seal by the chancery court. According to the court order, the document was sealed "due to the highly sensitive subject matter and confidential information contained in the initial report ...." We discovered nothing in the record that indicated the report had been "unsealed." In fact, upon receipt of the record, the report was separately wrapped in a envelope with "Vault" and "Sealed" written across the front, along with the order sealing the report affixed to the back. However, Marshall included the report in his record excerpts, which were made publicly available. Because Marshall potentially violated the chancery court's order in publishing sealed documents, we raise the issue for the chancery court to consider, in his discretion, what, if any, action is necessary on remand.

CONCLUSION

¶ 30. We hold a chancery court cannot rely on guardian ad litem hearsay that is not within one of the enumerated exceptions as substantive evidence. The chancery court also failed to perform an on-the-record analysis of the Ferguson factors in its distribution of the marital estate, which is required by Lowrey . However, the chancery court did not err in failing to award Candice attorney's fees because she said she could pay back her parents. As to the fourth issue, the chancery court must address the parties' lot and properly provide for its distribution. Finally, the chancery court on remand should consider Marshall's potential violation of the order sealing the guardian ad litem report. Based on the foregoing, we affirm in part, reverse in part and remand for proceedings consistent with our opinion.

¶ 31. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, MAXWELL AND BEAM, JJ., CONCUR. RANDOLPH, P.J., AND CHAMBERLIN, J., CONCUR IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

      Ferguson v. Ferguson , 639 So.2d 921 (Miss. 1994).

      The names of all children discussed herein have been changed to protect their identities.

      Lawrence Blain Holden, the purported biological father of Jill, was added as a third-party defendant to case, but he never appeared or filed a response.

      Albright v. Albright , 437 So.2d 1003 (Miss. 1983).

      The statute reads:
      In every proceeding where the custody of a child is in dispute, there shall be a rebuttable presumption that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody or joint physical custody of a parent who has a history of perpetrating family violence. The court may find a history of perpetrating family violence if the court finds, by a preponderance of the evidence, one (1) incident of family violence that has resulted in serious bodily injury to, or a pattern of family violence against, the party making the allegation or a family household member of either party. The court shall make written findings to document how and why the presumption was or was not triggered.
      Miss. Code Ann. § 93-5-24(9)(a)(i) (Rev. 2013).

      "In short, to overcome the natural parent presumption, there must be clear and convincing evidence of conduct or unfitness 'presenting a genuine serious danger to the child.' " Neely v. Welch , 194 So.3d 149, 158 (¶ 25) (Miss. Ct. App. 2015) (citing Deborah H. Bell, Mississippi Family Law § 5.06 [2][a], at 121 (2005)).

      The parties' direct or indirect economic contribution to the acquisition of the marital property is one of the Ferguson factors. Ferguson , 639 So.2d at 928.


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Ermea J. RUSSELL v. The MISSISSIPPI BAR
    NO. 2016-BR-01807-SCT
    Supreme Court of Mississippi.
    June 8, 2017
    ATTORNEY FOR APPELLANT: ERMEA J. RUSSELL (PRO SE)
    ATTORNEY FOR APPELLEE: ADAM BRADLY KILGORE
    EN BANC.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. Appellant Ermea J. Russell files a Petition for Reinstatement to the practice of law following a ten-month suspension. Because Russell's petition fails to meet the jurisdictional requirements for reinstatement, we deny her request.

FACTS & PROCEDURAL HISTORY

¶ 2. On July 10, 2015, Russell was suspended for ten months resulting from a Formal Complaint filed at the request of former clients. Based on nine separate informal complaints, the Mississippi Bar found that Russell had failed to provide representation for which she was hired, return client property, and properly withdraw from representation of her clients. These informal complaints indicated her lack of diligence and lack of communication regarding her clients' legal representation. Through its investigations, the Complaint Tribunal found seven violations of Rules 1.16(d), 1.2, 1.3, 1.4, and 8.1 of the Mississippi Rules of Professional Conduct, which resulted in her suspension.

¶ 3. Russell now files a Petition for Reinstatement pursuant to Rule 12 of the Mississippi Rules of Discipline.

STANDARD OF REVIEW

¶ 4. The attorney seeking reinstatement carries the burden of proving that she has rehabilitated herself and has established the requisite moral character to reinstate her to the privilege of practicing law. Stewart v. The Mississippi Bar , 5 So.3d 344, 346 (Miss. 2008) (citing In re Holleman , 826 So.2d 1243, 1246 (Miss. 2002) ). This Court "has exclusive and inherent jurisdiction over matters regarding attorney discipline, reinstatement, and appointment of receivers for suspended and disbarred attorneys." In re Morrison , 819 So.2d 1181, 1183 (Miss. 2001) (quoting In re Smith , 758 So.2d 396, 397 (Miss. 1999) ). We review the evidence in disciplinary matters de novo , "on a case-by-case basis of triers of fact." Morrison , 819 So.2d at 1183.

DISCUSSION

¶ 5. The issue before this Court is whether Russell satisfied the jurisdictional requirements to be reinstated to the practice of law. Reinstatement is based on "whether [the attorney] has rehabilitated [her]self in conduct and character since the suspension was imposed." In re Steele , 722 So.2d 662, 664 (Miss. 1998). The Petitioner bears the burden of proving by clear and convincing evidence that she has rehabilitated herself by complying with the requirements of Rule 12(a), which provides that no person disbarred or suspended for a period of six months or longer shall be reinstated to the privilege of practicing law except upon petition to this Court. In re Petition of Benson for Reinstatement , 890 So.2d 888, 890 (Miss. 2004) (citing Miss. R. D. 12(a)). In Benson , this Court articulated five requirements which apply to Rule 12 reinstatement petitions. A petitioner must demonstrate rehabilitation by:

1. stating the cause or causes for suspension or disbarment,
2. providing the names and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss due to improper conduct,
3. making full amends and restitution,
4. showing requisite moral character for the practice of law, and
5. demonstrating the requisite legal education.

Id. Additionally, "although not a jurisdictional requirement, we consider the Bar's position as to reinstatement as a factor in determining whether to grant the petition." Id.

I. Cause for Disbarment and Suspension

¶ 6. In her petition, Russell reiterates the rules she violated without an explanation or summary of her actions. She states in paragraph three of her petition that "[t]he Tribunal found the cause or causes of the suspension to be violation of Rule 1.16(d), and as such violation of Rule 1.2, 1.3, and 1.4 of the Mississippi Rules of Professional Conduct in addition to Rule 8.1." Aside from stating rules, Russell has not provided a meaningful explanation of her actions that led to suspension. This Court previously has held that a mere recitation of the rules violated is not sufficient to satisfy this jurisdictional requirement. In Re Asher , 987 So.2d 954, 959 (Miss. 2008). Further, while the petitioner is not required to give a meticulous account of her past indiscretions, she does have a responsibility to give us a clear description of what improper actions led to her disbarment. Benson , 890 So.2d at 890 (Miss. 2004) (finding that merely mentioning the act for which he pleaded guilty does not suffice in meeting this requirement).

¶ 7. In contrast, the petitioner in Derivaux v. The Mississippi Bar provided sufficient evidence to satisfy this requirement.

Derivaux v. The Mississippi Bar , 226 So.3d 97, 2016 WL 4051347 (Miss. July 28, 2016). There, Derivaux states that by forging title insurance binders, misrepresenting himself as a title agent to clients and third parties, and collecting premiums for nonexistent policies, he directly violated the Rules of Professional Conduct, which led to his disbarment. Id. The Court found that Derivaux's thorough explanation provided sufficient evidence to satisfy this first requirement. Because Russell failed to provide a clear description of the improper actions that led to her suspension, she accordingly has failed to meet her burden. Therefore, we find that Russell has not satisfied this requirement.

II. Names and Addresses of Those Suffering Pecuniary Loss

¶ 8. Russell states within her petition that "she has received no communication regarding any claim of pecuniary loss due to the conduct resulting in her suspension, and is without knowledge of persons, parties, firms or legal entities who have made a claim of pecuniary loss in this matter." In its Motion to Dismiss, the Mississippi Bar argues that Russell fails to mention the Complaint Tribunal's finding that on five occasions she distributed the complaining parties' files to other attorneys and acted without regard to her clients' best interests. These actions create a high possibility that her clients suffered pecuniary loss in the form of attorneys' fees, court fees, and judgments, among others. With this possibility present, it is difficult for the Court to determine whether Russell has met this requirement.

¶ 9. Petitioners for reinstatement have the burden of proving they have met all the jurisdictional requirements. In re Shelton , 987 So.2d 938, 940 (Miss. 2008) (citing In Re Shelton II , 987 So.2d 898, 902 (Miss. 2006). Here, Russell provides no information indicating whether the conduct did not, may have, or eventually did cause her clients financial loss. Without any information regarding the existence or the lack of such loss, the Court is left with assessing the high likelihood of pecuniary loss based on the nine occasions submitted by the Complaint Tribunal. Because Russell did not provide clear and convincing evidence concerning the existence of pecuniary loss, she fails to satisfy this requirement.

III. Make Full Amends and Restitution

¶ 10. The only reference to amends and/or restitution in Russell's petition is found in paragraph seven. She states that the "respondent has paid all sums due the bar as assessed." Our decision in In re Baker provides the plain-meaning rule which defines what constitutes full amends and restitution. In re Baker , 649 So.2d 825, 828-29 (Miss. 1995). There, the Court held that the plain-meaning rule requires the disbarred attorney to make complete and total restitution to all parties who suffered pecuniary loss. Id. As addressed above, Russell did not provide clear and convincing evidence that her clients did not suffer pecuniary loss, therefore, this Court can not be confident that there was none at all. Consequently, there is no way to be sure that Russell has made full amends and restitution if we do not know whether her clients suffered pecuniary loss. We reiterate that "the attorney seeking reinstatement carries the burden of proving that he has rehabilitated himself." Holleman , 826 So.2d at 1246. We hold that, because Russell has failed to prove whether or not her clients suffered any pecuniary loss, she likewise has failed to prove that she made full amends and restitution, if necessary. Therefore, she failed to satisfy this requirement.

IV. Requisite Moral Character

¶ 11. In support of the fourth requirement, Russell describes her association and involvement with several community organizations. Russell states that she has rehabilitated herself by being a "faithful member at church, serving as the chairman of the Military Guild and financial oversight committee." Also, she claims that she "serves as a member of the Outreach Ministry working with children of incarcerated parents." Further, Russell states that she is active in her sorority, engaging in educational enrichment activities with youth, family strengthening, health education and awareness promotion for Alzheimer's and heart disease. Russell also includes her services as a radio talk-show host on matters of interest to the public as well as her support and work with the Junior ROTC program in Jackson Public Schools. While Russell has provided a list of activities in which she engages, she provides the Court with no evidence of her involvement. The Mississippi Bar contends that general statements of rehabilitation followed by an unsupported list of activities purportedly engaged in since a suspension are not sufficient. Although not required, the Court finds that further proof of engagement is helpful in deciding whether a petitioner has met this requirement.

¶ 12. In Benson , the petitioner provided a list of his involvement but lacked proof to support the list. In re Petition of Benson for Reinstatement , 890 So.2d 888 (Miss. 2004). Benson stated that he was involved with local political campaigns, and that he had abstained from tobacco, drugs, alcohol, and gambling. Benson also attached his income tax statement and a list of names and addresses of more than two dozen character references. Benson, however, did not offer any letters of recommendation on his behalf, give any evidence of community service, or show any substantial verification of his employment since disbarment. The Court found that without further proof, Benson's attempt at demonstrating the necessary moral character for the practice was wholly insufficient. Similar to Benson, Russell provided a list but failed to provided any support.

¶ 13. In re McGuire provides an example in which this Court has found sufficient evidence to satisfy this requirement. In re McGuire , 912 So.2d 902 (Miss. 2005). In support of this requirement, McGuire showed an active, sustained effort to rehabilitate himself and to prove the requisite moral character for admission by providing not only a list of his memberships in church and organizations but also by attaching approximately sixty-six letters of recommendation to his petition. Id. at 903. The letters were provided by law-enforcement officers, former and current circuit and chancery clerk personnel, professional and business persons, and fellow members of his church. Based on the evidence provided in support of his list of activities, the Court found sufficient evidence to support McGuire's request under this requirement. Id.

¶ 14. This Court does not engage in determining what assignment of value should be given to each activity listed in the petition; however, the Court cannot determine whether this requirement has been met without evidence to support the list provided. Because Russell failed to provide evidence to support the list of activities in her petition, the Court finds Russell's attempt to demonstrate requisite moral character wholly insufficient.

V. Requisite Legal Education

¶ 15. The fifth jurisdictional requirement is to demonstrate requisite legal education to be reinstated to the privilege of practicing law. Under Rule 12 of the Mississippi Rules of Discipline, the disbarred attorneys who eventually wish to be reinstated have a responsibility to show a continuing commitment to stay informed and competent in the practice of law. In support of this requirement, Russell asserts that she is a "perpetual learner and continues to read, study, and monitor legislation in the Mississippi Legislature." The Mississippi Bar contends that this claim fails to demonstrate the legal education required in order to be reinstated. Because studying and monitoring legislation in the Mississippi Legislature is not a sufficient means to establish that one has the requisite legal education to be reinstated to the practice of law, we find that Russell fails to meet this requirement.

¶ 16. In the case of In Re Petition of Parsons , the Court similarly found insufficient evidence is the petitioner's request. There, Parsons stated that, during the period of his disbarment, he had read various periodicals and articles concerning matters of legal interest to him. In re Petition of Parsons , 797 So.2d 203, 206 (Miss. 2000). As a result, the Court found that this information was insufficient to meet the legal learning requirement. Id. Likewise, Russell provides only information that she is a "perpetual learner" who monitors legislation of the Mississippi Legislature.

¶ 17. In contrast, the Court found sufficient evidence in Derivaux v. The Mississippi Bar . In that case, Derivaux detailed through his petition that he had passed the Multistate Professional Responsibility Examination with a score of ninety-two; participated in several CLEs, accumulating up to forty-eight hours, and regularly reviewed Mississippi Supreme Court opinions. In Derivaux , the Court found this requirement was met, as his attempts to stay informed were verifiable, diligent, and multifaceted. Derivaux , 226 So.3d at 100-01, 2016 WL 4051347, at *4. Accordingly, this Court finds that Russell has failed to meet this requirement.

CONCLUSION

¶ 18. We find that Ermea J. Russell has not successfully shown the Court that she has met the jurisdictional requirements outlined in Rule 12 of the Mississippi Rules of Discipline. As she has failed to meet these requirements, we are not convinced that Russell exhibits both the moral and professional rehabilitation necessary to be reinstated to the practice of law. As a result, we deny Russell's petition for reinstatement and bar the petitioner from filing another request for reinstatement until one year after the date of this decision, pursuant to Rule 12.6 of the Mississippi Rules of Discipline.

¶ 19. PETITION FOR REINSTATEMENT DENIED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN AND CHAMBERLIN, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.


author: WALLER, CHIEF JUSTICE, FOR THE COURT:

text:
    Joseph Patrick BROWN a/k/a Peanut v. STATE of Mississippi
    NO. 2015-DR-01099-SCT
    Supreme Court of Mississippi.
    September 14, 2017
    ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION COUNSEL, BY: JAMILA K. ALEXANDER, LOUWLYNN VANZETTA WILLIAMS, ALEXANDER KASSOFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BRAD SMITH
    EN BANC.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. This cause is before the Court on Joseph Patrick Brown's Motion for Leave to Invoke Discovery and Seek Access Orders in the Circuit Court. For the following reasons, this Court finds that said motion is not well-taken and should be denied.

FACTS & PROCEDURAL HISTORY

¶ 2. Brown was convicted of capital murder and sentenced to death in 1994, and his conviction and sentence were affirmed by this Court in 1996. Brown v. State , 682 So.2d 340 (Miss. 1996). Brown filed a petition for post-conviction relief in 1998, and after granting him leave to proceed in the trial court in 1999, this Court ultimately affirmed the trial court's denial of his petition in 2012. Brown v. State , 749 So.2d 82 (Miss. 1999) (granting leave to proceed in the trial court); Brown v. State , 88 So.3d 726 (Miss. 2012) (affirming trial court's denial of post-conviction relief). Brown now has notified this Court of his intent to file a successive petition for post-conviction relief. Included in that notice was a motion requesting this Court to direct the Circuit Court of Adams County to assume jurisdiction over "discovery matters relevant to Mr. Brown's successive post-conviction claims." This Court unanimously denied that motion by order of December 17, 2015, finding that "there has been no minimal showing of any need for pre-petition discovery."

¶ 3. The subject motion requests the same relief as the motion previously denied by this Court: "Mr. Brown respectfully requests that this Court enter an order directing the Circuit Court of Adams County to exercise jurisdiction over matters and over requests for access orders that are relevant to Mr. Brown's post-conviction claims." The only thing differentiating this motion from the previous request is that Brown now presents this Court with several discovery "needs." Aside from references to a claim of ineffective assistance of post-conviction counsel, Brown's motion does not identify with any particularity the issues that he plans to raise in his successive petition. Instead, he claims that so-called "pre-petition discovery" is necessary for him to "file a meaningful and constitutionally adequate motion for leave to proceed in the trial court with a petition for post-conviction relief."

DISCUSSION

¶ 4. In support of his motion, Brown relies on Rule 22(c) of the Mississippi Rules of Appellate Procedure, which contains rules governing the filing of petitions for post-conviction relief by defendants who have been sentenced to death. Specifically, Rule 22(c)(4)(ii) requires certain mandatory disclosures to the defendant, including the transfer of certain files to the petitioner or his post-conviction counsel and allows limited prepetition discovery at the trial court's discretion and upon a showing of need:

Upon appointment of counsel, or the determination that the petitioner is represented by private counsel the petitioner's prior trial and appellate counsel shall make available to the petitioner's post-conviction counsel their complete files relating to the conviction and sentence. The State, to the extent allowed by law, shall make available to post-conviction counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed and the prosecution of the petitioner. If the State has a reasonable belief that allowing inspection of any portion of the files by post-conviction counsel for the petitioner would not be in the interest of justice, the State may submit for inspection by the convicting court those portions of the files so identified. If upon examination of the files, the court finds that such portions of the files could not assist the capital petitioner in investigating, preparing, or presenting a motion for post-conviction relief, the court in its discretion may allow the State to withhold that portion of the files. Discovery and compulsory process may be allowed the petitioner from and after the appointment of post-conviction counsel or the determination that the petitioner is represented by private counselor or is proceeding pro se, but only upon motion indicating the purpose of such discovery and that such discovery is not frivolous and is likely to be helpful in the investigation, preparation or presentation of specific issues which the petitioner in good faith believes to be in question and proper for post-conviction relief, and order entered in the sound discretion of the court. Upon determination that the petitioner has elected to proceed pro se, such files and discovery shall be made available as provided in subsection (2)(iii) above.

Miss. R. App. P. 22(c)(4)(ii). Brown argues that Rule 22(c) entitles him to submit discovery requests to the circuit court so he may investigate potential claims for his yet-to-be-filed successive petition.

¶ 5. We find that Brown's reliance on Rule 22(c) is misplaced. Today, we clarify that Rule 22(c) does not apply to successive petitions for post-conviction relief. Rule 22(c) must first be read in light of the Uniform Post-Conviction Collateral Relief Act's (UPCCRA) pronouncement that criminal defendants are entitled to file only one petition for post-conviction, subject to limited exceptions. See Miss. Code Ann. §§ 99-39-23, 27(9) (Rev. 2015). See also Russell v. State , 819 So.2d 1177, 1178 (Miss. 2001) ("Russell, as all others, is, upon entry of a final order and subject to only limited exceptions, allowed a single post-conviction motion by virtue of the successive writ bar of § 99-39-23."). Accordingly, as discussed more fully below, Rule 22(c) was enacted to ensure that capital defendants could comply with the UPCCRA's burden of production when they filed their first petitions. Carrothers v. State , 189 So.3d 612, 614 (Miss. 2015). The purpose of Rule 22(c) is not, as Brown contends, to allow defendants an endless opportunity for discovery on the assertion that they may have claims which they did not raise in prior proceedings. We also note that Brown's first motion for leave to proceed in the trial court with a petition for post-conviction relief was filed and granted in part by this Court before Rule 22(c) went into effect, and this Court previously determined that Brown was not entitled to discovery under Rule 22 after he was granted leave to proceed in the trial court with his first petition. See Brown , 88 So.3d at 730.

¶ 6. Moreover, none of the provisions of Rule 22 suggest that the rule should be applied to successive petitions for post-conviction relief. On the contrary, Rule 22(c)(1)(ii) explicitly requires this Court to direct the convicting court to rule on the issue of appointment of counsel "immediately after the announcement of the decision on direct appeal [.]" Miss. R. App. P. 22(c)(1)(ii) (emphasis added). Additionally, Rule 22(c)(5)(i) provides that the petitioner's application for leave to proceed in the trial court must be filed "not later than one hundred eighty (180) days after counsel is appointed or sixty (60) days following denial of rehearing on the direct appeal of the conviction and sentence, whichever is later." Miss. R. App. P. 22(5)(i) (emphasis added). As a successive petitioner, Brown is not bound by these provisions and must instead make a showing that his successive claims are excepted from the UPCCRA's time bar and successive-writ bar. See Miss. Code Ann. § 99-39-5(2)(b) (Rev. 2015); Miss. Code Ann. § 99-39-27(9) (Rev. 2015); Miss. R. App. P. 22(c)(5)(i). Brown cannot claim the benefit of a single provision of Rule 22(c) as a ground for discovery prior to the filing of his successive petition, when the other provisions of that rule clearly do not apply to him.

¶ 7. The historical context of Rule 22(c) also supports a finding that it does not apply to successive post-conviction petitions. The current version of Rule 22(c) was adopted by this Court in 2000 in tandem with the Legislature's enactment of House Bill 1228, which made several important changes to death-penalty litigation in Mississippi. Relevant to this case, House Bill 1228 created of the Office of Capital Post-Conviction Counsel and the amended the Uniform Post-Conviction Collateral Relief Act to require petitions for post-conviction relief in capital cases to be filed within one year of conviction. See Miss. Code Ann. § 99-39-101 (Rev. 2015) (effective July 1, 2000); Miss. Code Ann. § 99-39-5(2)(b) (Rev. 2015) (effective July 1, 2000). Rule 22(c) was "designed to implement" these legislative enactments. Miss. R. App. 22 cmt. To that end, Rule 22(c) contains provisions governing the representation and compensation of counsel and imposes specific deadlines on both the petitioner and the State in order to comply with the expedited statute of limitations in capital cases. See Miss. R. App. P. 22(c)(1), (2), (3), (5), (6). Rule 22(c) also recognizes that, with the creation of the Office of Capital Post-Conviction Counsel, many capital defendants will be represented in their initial post-conviction proceedings by attorneys who have had no prior involvement with the case. With this context in mind, Rule 22(c)(4)(ii) serves as this Court's method of ensuring that capital petitioners are provided adequate information to file their initial petition for post-conviction relief within the expedited deadline following this Court's decision on direct appeal, and not as a broad guarantee of unlimited discovery for all capital petitioners, as Brown suggests.

¶ 8. Brown argues that, without so-called "prepetition discovery," he will not be able to support his claims with the "affidavits of the witnesses who will testify and copies of documents or records that will be offered" as required by the UPCCRA. See Miss. Code Ann. § 99-39-9(e) (Rev. 2015). Similarly, Brown's current post-conviction counsel argues that she cannot render effective assistance to Brown without the benefit of discovery under Rule 22(c)(4)(ii). But Brown fails to recognize that the evidentiary burden imposed by Section 99-39-9 is not absolute:

The affidavits of other persons and the copies of documents and records may be excused upon a showing, which will be specifically detailed in the motion, of good cause why they cannot be obtained. This showing shall state what petitioner has done to attempt to obtain the affidavits, records and documents, the production of which he requests the court to excuse.

Id. (emphasis added). In addition, Brown may be entitled to discovery under the UPCCRA, assuming that he eventually files his successive petition for post-conviction relief. Miss. Code Ann. § 99-39-15 (Rev. 2015). See also Fleming v. State , 553 So.2d 505, 506 (Miss. 1989) ("A prisoner who has filed a proper motion pursuant to this Act, and whose motion has withstood summary dismissal under § 99-39-11(2), may be entitled to trial transcripts or other relevant documents under the discovery provisions of § 99-39-15, upon good cause shown and in the discretion of the trial judge."). Thus, we find no merit in Brown's argument that he is without recourse if he is unable to obtain certain evidence through prepetition discovery.

¶ 9. The instant motion provides only scant support for the required showing that "such discovery is not frivolous and is likely to be helpful in the investigation, preparation or presentation of specific issues [.]" Miss. R. Civ. P. 22(c)(4)(ii) (emphasis added). Nothing further is advanced in terms of new or different needs as compared to Brown's previous request for prepetition discovery. Brown's list of discovery requests includes, but is not limited to, the following:

(1) trial counsel's files;
(2) files of the relevant law enforcement agencies and District Attorney's Office;
(3) copies of audiotapes and videotapes of the Natchez Police Department which were taken during the investigation of Brown's case;
(4) an order requiring the development of undeveloped film in the custody of the Natchez Police Department;
(5) "discovery relating to the issue of whether black jurors were stricken from the jury on the basis of their race";
(6) "discovery from the television stations that provided media coverage of Mr. Brown's arrest, the case investigation, pretrial proceedings, and the trial";
(7) Youth Court and Department of Human Services records of Brown and/or his family members;
(8) discovery regarding other robberies or shootings that occurred in Natchez on August 8, 1992;
(9) "discovery of reports or information regarding misconduct or unethical behavior of law enforcement officers or prosecutorial staff who were involved in the investigation and prosecution of Mr. Brown's case";
(10) prosecutorial files relating to the death of Moses Green;
(11) production of a letter from Larry Bernard to the head jailer's brother regarding what Brown allegedly told Bernard while they were in the custody of the Adams County Detention Center in 1993.

Brown fails to explain why he has been unable to obtain the requested information without resorting to discovery, how this information is related to the claims he intends to raise, or the ultimate purpose of seeking this information, making this quest nothing more than an elaborate fishing expedition. In addition, Brown's filings before this Court and the State's response indicate that Brown has been given access to some of this information, while other information simply cannot be located and may not exist.

¶ 10. In addition, while Brown alleged both in his prior notice and the instant motion that he intends to file his successive petition on the basis of ineffective assistance of post-conviction counsel, a review of the instant motion belies this allegation. In his filings before this Court, Brown makes repeated references to his efforts to engage in discovery during his first post-conviction proceedings and this Court's denial of his request for Rule 22 discovery. The substance of Brown's complaint is perhaps best framed by the following excerpt from the instant motion:

The unfortunate result of this Court's denial of Mr. Brown's discovery requests was that by the conclusion of Mr. Brown's initial post-conviction litigation, Mr. Brown had never had an opportunity to fully investigate and develop potentially meritorious claims by use of Rule 22's discovery provisions. Mr. Brown should now be granted that opportunity since he is currently in a pre-petition posture rather than a post-remand posture.

Throughout his motion, Brown blames his alleged "inability" to investigate claims during his first post-conviction proceedings not on the actions of prior post-conviction counsel, but on the fact that prepetition discovery did not exist when he filed his first petition. This argument does not equate to a claim of ineffective assistance of post-conviction counsel.

CONCLUSION

¶ 11. Today we hold that Rule 22(c) does not apply to successive petitions for post-conviction relief. Accordingly, Brown is not entitled to discovery before filing his successive petition. For the foregoing reasons, we deny Brown's Motion for Leave to Invoke Discovery and Seek Access Orders in the Circuit Court.

¶ 12. MOTION DENIED.

RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ.; COLEMAN, J., JOINS IN PART.

¶ 13. Mississippi Rule of Appellate Procedure 22(c) mandates that "[d]iscovery and compulsory process may be allowed by the petitioner from and after the appointment of post-conviction counsel or the determination that the petitioner is represented by private counselor or is proceeding pro se." Nothing in the Rule limits that discovery and compulsory process to first petitions for post-conviction relief. Rather, the Rule's plain, clear "from and after" language establishes that no temporal bar exists on a petitioner's access to this discovery and compulsory process. Instead, the Rule limits a petitioner's access with a case-by-case analysis of whether the petitioner established a need for the information sought.

¶ 14. The majority abandons the case-by-case analysis required by a rule he enacted. But Rule 22's language stands in the majority's way. So the majority resorts to procedural statutes-undoubtably unconstitutional-in the Mississippi Uniform Post-Conviction Relief Act.

¶ 15. The time long since has passed to end this Court's embarrassing, dissembling, and indefensible practice of seeking refuge behind some procedural provision of the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA) when it suits the majority's purposes in a particular case. Those justices who cite as authority the procedural provisions of the PCR statutes are the same justices who heap high praise on the first two sections of our Constitution, and extol the virtues of Newell v. State , a case that proclaims this Court's exclusive authority to promulgate procedural rules for the courts of Mississippi.

¶ 16. In Newell , this Court held:

The division of authority [between the Legislature and this Court] is specifically implemented by Section 144 of the Constitution :
The judicial power of the state shall be vested in a Supreme Court and such other courts as are provided for in this constitution. This leaves no room for a division of authority between the judiciary and the legislature as to the power to promulgate rules necessary to accomplish the judiciary's constitutional purpose.

To be clear, I take the phrase, "no room for a division of authority" to mean no room for a division of authority. Section 99-39-27 directly contradicts both Newell and Section 2 of the Mississippi Constitution, by dictating that post-conviction proceedings in death-penalty cases "shall be governed by rules established by the Supreme Court as well as the provisions of this section." Thus, the Legislature gives no weight to Newell 's holding that there is "no room for division."

¶ 17. This Court's record of respect for Newell and Section 2 of the Constitution is no better. Our precedent is replete with hundreds of examples of cases in which this Court has cited as authority the UPCCRA's procedural statutes which dictate every procedural aspect of a PCR petition, including: (1) the contents and form of a petition, (2) the contents and form of the answer, (3) the contents of the record on appeal, (4) where petitions must be filed, (5) this Court's standard of review, (6) the procedure for summary judgment, (7) "procedural" waiver of objections, (8) procedures to be followed at a hearing, (9) the form and content of an application to be filed with this Court, (10) those who must be served, (11) what this Court must review in making its decision, (12) the number of days the Attorney General must be given to respond to a petition, and numerous other examples.

The Law that Should Be Applied to this Case

¶ 18. In this death-penalty case, a prisoner claims he needs to conduct discovery before filing a petition for post-conviction relief. He does not ask this Court to allow him to conduct the discovery. Instead, he relies-as he should-on Rule 22(c)(4)(ii) of the Mississippi Rules of Appellate Procedure, which if applied by its terms, unquestionably would allow Brown to seek the trial court's permission to conduct the discovery. But the majority refuses to decide the issue based on the language of our rule. Instead, the majority proclaims that this Court's

Rule 22(c) must first be read in light of the Uniform Post-Conviction Collateral Relief Act's (UPCCRA) pronouncement that criminal defendants are entitled to file only one petition for post-conviction, subject to limited exceptions. See Miss. Code Ann. §§ 99-39-23, 27(9) (Rev. 2015).

¶ 19. This Court's Rule 22-this Court's rule-provides for prepetition discovery in order for a petitioner to file a meaningful petition. Yet, the majority mocks Brown's request by referring to it as his request for "so-called 'prepetition discovery,' " and then denies his request because the rule-"when read in the light of a procedural statute"-means something other than what it actually says.

¶ 20. The majority correctly notes that Rule 22(c)(4)(ii)"requires certain mandatory disclosures to the defendant, including the transfer of certain files to the petitioner or his post-conviction counsel and allows limited prepetition discovery at the trial court's discretion and upon a show of need." The rule states:

Upon appointment of counsel, or the determination that the petitioner is represented by private counsel the petitioner's prior trial and appellate counsel shall make available to the petitioner's post-conviction counsel their complete files relating to the conviction and sentence. The State, to the extent allowed by law, shall make available to post-conviction counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed and the prosecution of the petitioner. If the State has a reasonable belief that allowing inspection of any portion of the files by post-conviction counsel for the petitioner would not be in the interest of justice, the State may submit for inspection by the convicting court those portions of the files so identified. If upon examination of the files, the court finds that such portions of the files could not assist the capital petitioner in investigating, preparing or presenting a motion for post-conviction relief, the court in its discretion may allow the State to withhold that portion of the files.
Discovery and compulsory process may be allowed the petitioner from and after the appointment of post-conviction counsel or the determination that the petitioner is represented by private counselor or is proceeding pro se, but only upon motion indicating the purpose of such discovery and that such discovery is not frivolous and is likely to be helpful in the investigation, preparation or presentation of specific issues which the petitioner in good faith believes to be in question and proper for post-conviction relief, and order entered in the sound discretion of the court. Upon determination that the petitioner has elected to proceed pro se, such files and discovery shall be made available as provided in subsection (2)(iii) above.

¶ 21. Two things are apparent from the language of the rule. First, it includes no limitation for "successive petitions" for post-conviction relief. Second, and more importantly, it provides the prerequisite for obtaining discovery: (1) a motion that discloses the purpose of the proposed discovery and demonstrates that the discovery "is not frivolous and is likely to be helpful in the investigation, preparation or presentation of specific issues which the petitioner in good faith believes to be in question and proper for post-conviction relief," and (2) an "order entered in the sound discretion of the court."

¶ 22. So the rule authorizes the petitioner in this case to ask the trial judge for discovery, and to attempt to persuade the trial judge that his request "is not frivolous and is likely to be helpful in the investigation, preparation or presentation of specific issues which the petitioner in good faith believes to be in question and proper for post-conviction relief." The majority, displeased with this troublesome rule, drags in a statute that the majority says "clarifies" the rules.

¶ 23. The majority correctly notes that "Brown's first motion for leave to proceed in the trial court with a petition for post-conviction relief was filed and granted in part by this Court before Rule 22(c) went into effect, and this Court previously determined that Brown was not entitled to discovery under Rule 22 after he was granted leave to proceed in the trial court with his petition." But the majority fails to point out that the reason the majority denied him discovery was because he failed to show "good cause" for needing the discovery, even though the discovery listed in Rule 22 is automatic and requires no showing of good cause.

¶ 24. I dissent, not because I have concluded that Brown has, or has not, shown "good cause"; and not because I think he may, or may not, prevail on a petition for post-conviction relief. I dissent because our rules, as they currently exist, allow him to obtain the discovery he seeks, and I cannot join the majority's acrobatics in finding a way to deny him what our rules allow him to have. If the justices in the majority think our rules are too lax, then they should change the rules, not take refuge behind a procedural statute.

KITCHENS AND KING, JJ., JOIN THIS OPINION. COLEMAN, J., JOINS THIS OPINION IN PART.

      Russell involved a defendant's first petition for post-conviction relief and therefore is distinguishable from the instant case.

      The State used this exact procedure to subpoena Brown's trial attorneys and the doctors who had conducted Brown's mental evaluation to testify at the evidentiary hearing on Brown's first petition. See Brown , 88 So.3d at 731.

      For example, in the Notice of Intent filed with this Court, Brown admitted that he had been in contact with his trial attorneys and that they were unable to locate their files. In addition, the State represents in its response to the instant motion that the Natchez Police Department has given Brown complete access to its files on more than one occasion.

      Miss. R. App. P. 22(c) (emphasis added).

      Id. ("upon motion indicating the purpose of such discovery and that such discovery is not frivolous and is likely to be helpful in the investigation, preparation or presentation of specific issues which the petitioner in good faith believes to be in question and proper for post-conviction relief, and order entered in the sound discretion of the court.").

      Miss. Code Ann. § 99-39-1 to 99-39-119 (Rev. 2015).

      Newell v. State , 308 So.2d 71 (Miss. 1975).

      Id. at 77.

      A cursory Westlaw, Lexis, or Casemaker search results in hundreds of cases in which this Court has ignored Newell and Section 2 of the Mississippi Constitution, and applied the procedural statutes in the UPCCRA. For instance, a search for cases relying on Section 99-39-9, which dictates the contents of a petition, results in more than 200 cases. And these are just the reported cases. This Court's motions panels have relied on the same procedural statutes to decide thousands of unreported motions.

      See Miss. R. App. P. 22

      Maj. Op. at ¶ 5.

      Maj. Op. at ¶ 4 (emphasis added).

      Miss. R. App. P. 22(c)(4)(ii).

      Maj. Op. ¶ 5.


text:
    The MISSISSIPPI BAR v. John H. CLEGG
    NO. 2017-BD-00319-SCT
    Supreme Court of Mississippi.
    September 21, 2017
    ATTORNEY FOR COMPLAINANT: JAMES R. CLARK
    ATTORNEY FOR RESPONDANT: NONE
    EN BANC.
   WALLER, CHIEF JUSTICE, FOR THE COURT:

¶ 1. This matter is before the Court on the Mississippi Bar's formal complaint against attorney John H. Clegg pursuant to Rule 13 of the Mississippi Rules of Discipline.

FACTS

¶ 2. Clegg is licensed to practice law in both Louisiana and Mississippi. On July 6, 2010, the Louisiana Supreme Court found that Clegg had violated Rule 8.4(a) and (b) of the Louisiana Rules of Professional Conduct by possessing and using crack cocaine, an illegal act that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer. In re John H. Clegg , 41 So.3d 1141, 1146 (La. 2010). The Louisiana Court suspended Clegg from the practice of law for a period of one year and one day, with all but six months of the suspension deferred on the condition that Clegg provide written confirmation that he has executed a recovery agreement with the Louisiana Bar Association's Lawyers Assistance Program (LAP) prior to being reinstated. Id. at 1158-59. Upon reinstatement, Clegg would be placed on unsupervised probation for two years, subject to the condition that he fully comply with the recovery agreement. Id.

¶ 3. According to the Louisiana State Bar Association's website, Clegg currently remains ineligible to practice law in Louisiana. We also note that Clegg has been suspended from practicing law in Mississippi since 2011 for failure to pay his Bar dues.

¶ 4. On March 7, 2017, the Mississippi Bar filed the instant complaint against Clegg seeking reciprocal discipline under Rule 13. A certified copy of the Louisiana Court's judgment was included in the record. The Bar requests that this Court "appropriately discipline Mr. Clegg" and order him to pay costs and expenses associated with the filing of the instant case, along with any other relief deemed proper. The complaint was personally served on the Executive Director of the Mississippi Bar on March 9, 2017. Clegg did not file a response to the complaint.

DISCUSSION

¶ 5. This Court possesses the exclusive authority to discipline attorneys practicing within this state. Miss. R. Discipline 1(a). While Clegg currently is not an active member in good standing with the Mississippi Bar due to his failure to pay Bar dues, this Court retains disciplinary jurisdiction over him nonetheless. See Miss. Bar v. Beal , 167 So.3d 180, 182 n.1 (Miss. 2014) ; Miss. Bar v. Inserra , 929 So.2d 884 (Miss. 2006).

¶ 6. Rule 13 of the Mississippi Rules of Discipline authorizes this Court to impose reciprocal discipline on a Mississippi-licensed attorney who has been sanctioned in another jurisdiction, upon certification from the other jurisdiction:

When an attorney should be subjected to disciplinary sanctions in another jurisdiction, such sanction shall be grounds for disciplinary action in this state, and certification of such sanction by the appropriate authority of such jurisdiction to the Executive Director of the Bar or to the Court, shall be conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered, and it will not be necessary to prove the grounds for such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.

Miss. R. Discipline 13. The certified copy of the Louisiana Supreme Court's judgment against Clegg serves as "conclusive evidence of the guilt of the offense or unprofessional conduct." Id. Accordingly, the sole issue before this Court is the discipline to be imposed. Id. In determining the appropriate sanction to impose, this Court considers the following criteria:

(1) the nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of the dignity and reputation of the profession; (4) protection of the public; (5) the sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer's mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating and/or mitigating factors.

Miss. Bar v. Hodges , 949 So.2d 683, 686 (Miss. 2006). "As long as each criterion is taken into consideration, we need not address each separately." Caldwell v. Miss. Bar , 118 So.3d 549, 554 (Miss. 2012) (citing Hodges , 949 So.2d at 686 ). In reciprocal-discipline cases, "the sanction imposed in this State generally mirrors the sanction imposed in the sister state, absent extraordinary circumstances which compel, justify or support variance from the foreign jurisdiction's sanction." Miss. Bar v. Ishee , 987 So.2d 909, 911 (Miss. 2007).

¶ 7. In its judgment against Clegg, the Louisiana Supreme Court "directly or implicitly considered each of the above-referenced criteria." Miss. Bar v. Inserra , 38 So.3d 605, 607 (Miss. 2009). The Louisiana Court found by clear and convincing evidence that Clegg had violated Rules 8.4(a) and (b) of the Louisiana Rules of Professional Conduct, which are identical to Rules 8.4(a) and (b) of the Mississippi Rules of Professional Conduct. Clegg , at 1157. The Louisiana Court reasoned that "chemical dependency may cause a lawyer to commit acts of professional misconduct that would not have occurred but for his impairment." Id. at 1158. Turning to the issue of sanctions, the Louisiana Court determined that cases involving violations of Rule 8.4 due to drug abuse generally result in a suspension of one to three years, with all or part of the suspension deferred. Id. at 1157-58. According to the Louisiana Court, when there is a causal connection between substance abuse and professional misconduct, a deferred suspension and a probationary period are appropriate to ensure that the attorney can make meaningful efforts to address his or her substance-abuse problems through participation in the LAP. Id. at 1158.

¶ 8. After reviewing the judgment of the Louisiana Supreme Court in light of the criteria discussed above, we conclude that it is appropriate to impose reciprocal discipline equal to that imposed by the Louisiana Supreme Court. Accordingly, we hereby suspend Clegg from the practice of law in Mississippi for a period of one year and one day from the date of this opinion. All but six months of this suspension is deferred on the condition that, upon applying for reinstatement with this Court, Clegg must present a certified letter from the Executive Director of the LAP confirming that Clegg has executed a recovery agreement with the LAP. Upon reinstatement, Clegg shall serve a two-year probationary period, subject to the condition that he fully complies with all requirements of his recovery agreement. The costs and expenses of these proceedings shall be assessed to Clegg.

¶ 9. JOHN H. CLEGG IS SUSPENDED FROM THE PRACTICE OF LAW FOR A PERIOD OF ONE YEAR AND ONE DAY FROM THE DATE OF THIS OPINION. ALL BUT SIX MONTHS OF SAID PERIOD IS DEFERRED ON THE CONDITION THAT CLEGG MUST PRESENT A CERTIFIED LETTER FROM THE EXECUTIVE DIRECTOR OF THE LOUISIANA LAWYERS ASSISTANCE PROGRAM STATING THAT CLEGG HAS EXECUTED A RECOVERY AGREEMENT. UPON REINSTATEMENT, CLEGG SHALL SERVE A TWO-YEAR PROBATIONARY PERIOD, SUBJECT TO HIS COMPLIANCE WITH THE CONDITIONS OF HIS RECOVERY AGREEMENT. THE COSTS AND EXPENSES OF THESE PROCEEDINGS ARE ASSESSED TO CLEGG.

RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.

      These rules are the same as Rule 8.4(a) and (b) of the Mississippi Rules of Professional Conduct.

      Louisiana State Bar Association Membership Directory, https://www.lsba.org/Public/MembershipDirectory.aspx (last visited Sept. 20, 2017).

      The Mississippi Bar, Lawyer Directory, https://www.msbar.org/lawyer-directory.aspx?type=2&term=clegg (last visited Sept. 20, 2017).

      While the significant delay between the original disciplinary action and the filing of the Bar's complaint is concerning, a suspended or disbarred attorney has a duty to "notify all effected [sic] courts and agencies of his disbarment, suspension or resignation and consequent inability to act as an attorney after the effective date thereof[.]" Miss. R. Discipline 11(c)(4). Where an attorney fails to notify this Court of disciplinary action in another jurisdiction, this Court is not required to engage in any retroactive-discipline analysis and may impose its sanction prospectively. Caldwell v. Miss. Bar , 118 So.3d 549, 556 n.3 (Miss. 2012).

      See Miss. R. Discipline 1.1 ("Any nonresident, by rendition of legal services in this state, shall be deemed to have appointed the Executive Director of the Bar as his agent for service of process or any notice required by these rules.").

      See Miss. Code Ann. § 73-3-127 (Rev. 2012).

      "No person disbarred or suspended for a period of six months or longer shall be reinstated to the privilege of practicing law except upon petition to the Court." Miss. R. Discipline 12(a).