City of Jackson, Mississippi v. Emma Womack
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CA-01413-SCT
CITY OF JACKSON, MISSISSIPPI AND UNIVERSITY
OF MISSISSIPPI MEDICAL CENTER
v.
THE ESTATE OF OTHA STEWART, DECEASED, BY
AND THROUGH ITS ADMINISTRATOR, EMMA
WOMACK
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
04/01/2003
HON. WINSTON L. KIDD
HINDS COUNTY CIRCUIT COURT
SHARON DIANE GIPSON
PIETER JOHN TEEUWISSEN
LANNY R. PACE
CORRIE SCHULER
JAMES A. BOBO
MARK C. BAKER
BERNARD C. JONES
CIVIL - PERSONAL INJURY
MOTION FOR REHEARING STRICKEN FROM
THE FILES - 12/15/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 1999-IA-01527-SCT
OTHA STEWART, BY AND THROUGH EMMA
WOMACK, HER DAUGHTER AND CONSERVATOR
OF HER PERSON AND HER ESTATE
v.
CITY OF JACKSON, MISSISSIPPI, AND DORIS B.
SPILLER
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
09/01/1999
JAMES E. GRAVES, JR.
HINDS COUNTY CIRCUIT COURT
JAMES A. BOBO
MARK C. BAKER
DARLA Y. MANNERY-PALMER
PATRICIA K. SIMPSON
MICHAEL JEFFREY WOLF
CIVIL - PERSONAL INJURY
MOTION FOR REHEARING STRICKEN FROM
THE FILES - 12/15/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2005-CS-02169-SCT
IN RE: JAMES A. BOBO AND MARK C. BAKER
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1.
We are, regrettably, again confronted with disrespectful language which members of
the Mississippi Bar have knowingly, consciously, and intentionally chosen to place in a motion
for rehearing which was previously filed in this cause.
Finding the lawyers’ conduct to be
unprofessional and rising to the level of incivility, we direct that the motion for rehearing be
stricken from the files.
FACTS AND PROCEEDINGS
¶2.
On August 11, 1997, Mrs. Otha Stewart fell after exiting a van operated by the City of
Jackson, as she prepared to enter a day care center operated by the University of Mississippi
2
Medical Center.
Approximately one year later, suit was commenced by Mrs. Stewart against
the City, the Hospital, and Doris Spiller, the individual van driver, for injuries received in the
fall.
A conservatorship was later established for Mrs. Stewart, whose daughter, Emma
Womack, was substituted as the party plaintiff in her official capacity as conservator of Mrs.
Stewart’s estate. The defendants subsequently filed motions for summary judgment, and in due
course, the trial court denied the Hospital’s summary judgment motion, but granted summary
judgment in favor of the City and Spiller. Via an interlocutory appeal, this Court reversed the
trial court’s grant of summary judgment in favor of the City and Spiller.
Stewart ex. rel.
Womack v. City of Jackson, 804 So.2d 1041 (Miss. 2002).
¶3.
Upon remand, the trial court conducted a bench trial pursuant to Miss. Code Ann. §§
11-46-1, et seq. [commonly referred to as the Mississippi Tort Claims Act (MTCA)].
After
the bench trial, the trial court found that the City and the Hospital were liable and awarded the
plaintiff the total amount of $1,000,000 as damages against the City and the Hospital under tort
and breach of contract theories.1
¶4.
From this final judgment, both the City and the Hospital appealed to us. On May 12,
2005, we handed down our opinion which affirmed the trial court’s judgment as to a finding
of liability against the City, but we remanded the case to the trial court for a new trial as to
damages only against the City, with instructions to limit any award against the City to an
amount not to exceed $250,000, pursuant to the MTCA. As to the trial court judgment against
the Hospital, we reversed and rendered. City of Jackson v. Estate of Stewart ex rel. Womack,
1
Shortly after the trial of this case, and prior to the trial court’s entry of its opinion and
final judgment, Mrs. Stewart died, and thus her estate was substituted as plaintiff.
3
(Miss. May 12, 2005).
Thereafter, the Estate, through counsel, filed a motion for rehearing.
On August 4, 2005, we denied the motion for rehearing, but modified the original opinion.
City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703 (Miss. 2005).
¶5.
However, the events surrounding the filing of the motion for rehearing are the focus of
today’s case. After our initial opinion in this case was handed down on May 12, 2005, the
Estate, through attorneys James A. Bobo and Mark C. Baker, Sr., signed and caused to be filed
a motion for rehearing on May 26, 2005.
We recite the language used in this motion for
rehearing which precipitated certain events subsequent to the filing of the motion for rehearing
(M/R):
(1) On page 1 of the M/R – “The vast majority of opinions issued by this August
Body exemplify the virtues of scholarship, intellectual honesty, neutrality,
balance, justice and fair play. Win or lose the facts and law of the case are fairly
stated. Unlike those opinions, the opinion in this case does not meet these
standards. The opinion does a disservice to the Court and the parties and almost
certainly will cause confusion and uncertainty among the bench and bar.”
(2) On page 1 of the M/R – “The opinion issued in this case does not accurately
set forth the facts of this case.” [An accompanying footnote states “How is it
that an opinion discussing this case could not mention the ‘smoking gun’
memorandum where Jackson admits that it was endangering the elderly and
infirm through its failure to meet the express conditions of the CMPDD
contract?”] “The injustice wrought by the opinion is perhaps best exemplified
by the opinion’s adoption of the testimony of Dr. Thiel.”
(3) On page 2 of the M/R – “ bears repeating: the lone medical opinion
It
stating there was no stroke event is used by the author of the opinion to
justify exclusion of damages caused by the stroke. This reasoning defies
logic.” (Emphasis in original).
(4) On page 2 of the M/R – “In an unscholarly fashion the opinion appears to
overturn long established principles of law concerning foreseeability and
appellate review. It can be fairly stated that the opinion does violence to the
‘letter [and] the spirit of’ the Law.” (Citation omitted).
4
(5) On pages 6-7 of the M/R – “The opinion, without a single citation to
authority, legislates a limit on contract damage claims against governmental
entities in express contract cases (¶ 41 of Opinion).
The Mississippi
Legislature has not imposed such a limit, yet to achieve the outcome desired the
opinion moves the Court from jurists to legislators.”
(6) On page 7 of the M/R – “The straw argument of implied contract claims is
propped up and knocked down for reasons having nothing to do with the law or
the facts of this case.
Abandoning balance and neutrality and the long
established principles which apply when reviewing a Trial Court’s decision
concerning breach of an express contract, the opinion advocates on behalf of the
defendants.”
(7) On page 8 of the M/R РҦ 9 of the Opinion adopts a version of events
favorable to the Defendants.”
(8) On page 10 of the M/R – “The opinion also ignores the concept that the
UMMC contract provisions concerning transportation, coordination and
continuity of service place a duty in tort upon UMMC to continue to protect
Mrs. Stewart as they had in the past. Footnote 3 of the opinion sets forth a weak
side-stepping of this issue.”
(9) On page 10 of the M/R РҦ 39-40 [of the opinion] address another nonissue.
Mrs. Stewart put on proof of economic damages in excess of
$1,000,000.00. Her incurred medicals to date of trial were $416,000.00, with
future medicals of $1.3 Million. The judgment is for $1 Million. It is silly [for
this Court] to contend that there was any double recovery.”
(10) On page 11 of the M/R – “The opinion incorrectly applies the cases cited
in ¶¶ 43-46 [here is inserted footnote no. 16] and through selective citation fails
to mention or reference the controlling principles of law.” [In the referenced
footnote no. 16, there appears this language: “The citation to Smith v. United
States, 284 F.Supp. 259 (SD Miss. 1967) aff’d per curiam, 394 F.2d 482 (5t h
Cir. 1968) should be a dead give away of the feeble cobbling and machinations
needed to prop up the conclusion that duty and proximate cause were not
established.”]
(11) On page 12 of the M/R – “The more important factor is that it is only by
selecting discreet passages that the opinion is able to prop up its foreseeability
conclusion. A balanced and fair reading of the record reflects that Dr. Ramsey
testified that the fall caused the stroke and resulting deterioration of Mrs.
Stewart’s death.”
5
(12) On page 13 of the M/R, the Conclusion states: “This Motion for Rehearing
should be granted and the decision of the Trial Court upheld in all respects.
However, if Mrs. Stewart must lose and her ill treatment and suffering be
without recompense then there is little she can do to change it. But she should
not lose like this. Not by an opinion which ignores and twist (sic) the facts. Not
by an opinion that contorts the law to achieve a certain outcome more in tune
with a political philosophy. Instead, if it must be, then do it with honest
scholarship and legal craftsmanship which addresses the real issues of the case.
Mrs. Stewart and the people of Mississippi deserve at least that.”
¶6.
On August 4, 2005, this Court entered an en banc order reciting these examples of
disrespectful language contained in the motion for rehearing, and (1) directing Bobo and Baker
to file written responses to our show cause order and (2) directing Bobo and Baker to appear
before this Court, sitting en banc, on October 13, 2005, to show cause as to why they should
not be sanctioned. On August 23, 2005, and August 24, 2005, Baker and Bobo, respectively,
filed written responses to our show cause order.
In his response, Baker, inter alia,
“unequivocally apologize[d]” to the Court for his part in causing the language to appear in the
motion for rehearing. On the other hand, Bobo, while placing language in his response
indicating respect for this Court as an institution, and the individual members currently on the
Court, stated, inter alia, that he “gauged the skin of the Court to be thicker and its temperament
broad enough to allow unfettered the free flow of ideas.” Bobo likewise found Rule 40(c) of
the Mississippi Rules of Appellate Procedure to be “standardless” and at odds with the First
and Fourteenth Amendments of the United States Constitution as well as with Art. 3, §§ 11, 14
& 24, of our state constitution.
In essence, Bobo deemed it his constitutional right to place
the language in the motion for rehearing. Bobo even expressed being at a total loss as to what
this Court found to be disrespectful in his motion for rehearing. Bobo then addressed, point-
6
by-point, the twelve instances of disrespectful language we found to be contained in the motion
for rehearing. Finally, in his response, Bobo stated:
Words can not express how badly I wish to be reconciled with the Court. It
pains me deeply to be at odds with the Court or any of its members. I have done
little else since receiving the Show Cause Order than consider and weigh the
matter and examine myself as a person, an attorney and Officer of the Court. I
assure you that in the future, I will strive to make arguments that persuade and
not offend. However, in this case I can not retreat and in candor I must say that
I intend to stand and write against any wrong and injustice it might be my honor
to attempt to set right.2
¶7.
On October 13, 2005, Bobo and Baker, as directed, appeared before the Court for the
show cause hearing. Baker appeared along with counsel, and Bobo appeared, pro se. Baker,
through counsel, expressed remorse and apologized to the Court.
It was obvious from
observing Baker’s demeanor at the show cause hearing that his remorse was genuine.
Bobo,
to his credit, took the blame for the necessity of a show cause hearing and stated that but for
his (Bobo’s) actions, Baker would not be before the Court.
In other words, Bobo took full
responsibility for the language which appeared in the motion for rehearing.
While there is no
doubt that what Bobo said, and how he said it, (his demeanor) exhibited great respect for the
Court as an institution (as well as the Court’s current members), Bobo fervently stood by his
position that he had a constitutional right to write what he did in the motion for rehearing.
During his argument before the Court, Bobo, inter alia, also referred us to instances where this
Court, and other courts, via its opinions (and especially individual dissenting opinions by
justices), have been critical of fellow justices’ interpretation of law and application of facts.
2
These statements lead us to conclude that if Bobo felt moved in future cases to again
“set right” a perceived wrong or injustice, he would not “retreat” and would again conduct
himself in a fashion similar to that in today’s case.
7
Likewise, Bobo asserted that in viewing his actions, we should keep in mind that motions for
rehearing filed with this Court are not widely distributed or read by the general public.
¶8.
At the conclusion of the show cause hearing, we took this matter under advisement for
further consideration and entry of an opinion.
DISCUSSION
¶9.
In discussing the culpability of litigants in cases which we decide, it is hardly
uncommon that multiple litigants will be found to have varying degrees of culpability.
certainly true in today’s case.
This is
We now know that Bobo was mainly involved in drafting the
motion for rehearing and that Baker may have done little more than “sign off” on the motion
for rehearing.
However, as lawyers and judges know, such action on the part of a lawyer does
not necessarily exonerate the lawyer from being responsible for the contents of pleadings. See
Miss. R. Civ. P. 11.
¶10.
Based on certain language contained in Bobo’s response to our show cause order, we
start our discussion with the clear statement that judges, by the very nature of the adversarial
system of justice in which they are involved on a daily basis, are, for the most part, “thickskinned.” There are no doubt exceptions. Certainly, at the trial level, lawyers (and judges), in
the heat of battle, will say or do things, which upon reflection, they know to have been at the
very least, imprudent.
Thus, what might otherwise be deemed to be unacceptable, improper,
or even sanctionable behavior on the part of a lawyer will be simply ignored, or at the very
most, quickly disposed of by the trial judge with no more than an admonishment. While it is
wise for appellate judges to likewise be “thick-skinned” and quite often accept certain behavior
as no more than appropriate advocacy, appellate advocacy is still somewhat different.
8
The
language which lawyers place in a brief, or a motion for rehearing, is placed there only after
at least a minimum amount of thought and reflection. Assuming, arguendo, that a lawyer then
re-reads and re-thinks what the lawyer has placed in the brief or motion, there is time for
reflection on whether the language conveys the message which the writer wishes to convey,
or whether, upon reflection, there is perhaps a better or more effective way of conveying the
intended message. M.R.A.P. 40(c) states:
(c) Disrespectful Language Stricken. Any motion for rehearing containing
language showing disrespect or contempt for either appellate court will be
stricken, and the appropriate court will take such further action as it may deem
proper.
¶11.
Notwithstanding the provisions of this Rule, the motion for rehearing signed by Bobo
and Baker contained numerous instances of disrespectful language which we have already
conveyed, supra.
Our concern over this conduct has nothing to do with this Court or its
justices being “thin-skinned” or unwilling to accept criticism.
Indeed, the very purpose of a
motion for rehearing is for the aggrieved party to call to the attention of this Court the point(s)
of law and/or fact which this Court may have overlooked or misapprehended in its original
opinion.
If our system of justice at the appellate level were perfect, M.R.A.P. 40 would be
unnecessary.
Likewise, if our system of justice were perfect at the trial level, there would be
no need for the existence of rules governing appeals.
By our enforcing M.R.A.P. 40(c), it has
nothing to do with the individual pride of the members of this Court, but instead, it has
everything to do with preserving the integrity of this Court as an institution – those members
of this Court who preceded us, did, and those who follow us, should.
9
¶12.
Indeed, this Court in years past, long before any of the current members arrived at the
Court, unhesitatingly responded to lawyer conduct similar to that exhibited by the lawyers in
today’s case.
More than fifty years ago, Justice Gillespie, writing for a unanimous court,
stated:
While we have considered the suggestion of error on the merits, we order the
brief thereon stricken from the files for the reason that it contains language
showing disrespect for this Court. Language such as that used by the attorney in
his suggestion of error and brief serve no purpose; it is of no aid to the Court
and of no service to the clients in whose behalf it is used. This opinion is written
for the purpose of admonishing counsel, and any others similarly disposed, to
refrain from the use of language showing contempt or disrespect for the Courts.
Attorneys perform an important and indispensable service in administering the
laws. The duties of the court and the bar complement each other; neither can
properly function without the other; and mutual respect is demanded by law and
tradition. It is inherently within the power of the Court to enforce reasonable
rules against disrespectful and contemptuous language directed to the Court, and
we would be remiss in our obligation to the judicial department as an institution
of government if we should ignore a violation of such rules.
Any suggestion of error containing language showing disrespect or contempt for
this Court will be stricken from the files, and the Court will take such further
action relative thereto as it may deem proper.’ Rule 14, Revised Rules of the
Supreme Court of Mississippi, 1953.
What we have said is not to be construed to mean that attorneys may not
criticize a decision of the Court. Anyone has a perfect right to criticize, but it
must be done within the bounds of propriety.
Guynn v. Shulters, 223 Miss. 232, 262, 78 So.2d 793, 793-94 (1955).
¶13.
More than seventy-six years ago, Justice Griffith, writing for a unanimous court,
stated:
Almost every day suggestions of error are coming in here in which it is quite
freely asserted, in effect, that we have not read the record, or that we have not
read it as to vital features therein, or that in effect we are denying to parties their
rights under the law by inattention to our tasks, or, as was ventured in the instant
suggestion of error, that if we persisted in our error “then the right to contract
10
in this state will be denied by the solemn judgment of this Court.” We gladly,
sometimes gratefully, receive suggestions of error-some of them are
indispensably helpful. Nor do we expect at all that counsel shall come
apologetically in the discharge of this important function, but boldly and
manfully, we wish to see him stand up and labor with us when done in a
respectful manner and when counsel has so thoroughly studied the complete
record of his case, and the authorities applicable thereto, that he can be a help
to the law, not a hindrance to us by wasting our time. In presenting a suggestion
of error the partisanship of the advocate should to a degree be laid aside, and
counsel should rise to the heights of a real master and minister in the law, for
the time has then come when we are to consider finally what is to go into the
books, rather than chiefly the mere result of a case.
Provident Life & Acc. Ins. Co. v. Jemison, 153 Miss. 60, 120 So. 836, 836-37 (1929).
¶14.
So, more than seven decades after Justice Griffith penned these words for the Court,
unfortunately, the current Court continues to deal with similar lawyer conduct (or misconduct).
We recently had to address the conduct of lawyers at the trial level during the discovery phase
of a civil case.
While admittedly not factually similar to the facts in today’s case, there is
certain language in that case which still quite appropriately guides us in today’s case:
We acknowledge that in recent years, the Mississippi Bar has devoted entire
issues of its official publication, The Mississippi Lawyer, to the timely issues
of ethics, civility and professionalism amongst members of the Bar. This Court
has also recently had occasion to address these issues.
Notably, the Mississippi Bar as well as Mississippi College
School of Law and the University of Mississippi School of Law
have taken additional measures in order to address Ethics and
Professional Conduct among the Bar. Specifically, the
Mississippi Bar has devoted several issues to Ethics and
Professionalism in an attempt to “reign-in” behavior similar to
Kelly's. More recently, both the Mississippi College School of
Law and the University of Mississippi School of Law began
conducting an annual Law School Professionalism Program that
is presented to entering law students. Prior to the initiation of
this program, courses on Ethics and Professionalism were not
available until much later in the curriculum. While sponsored by
the Mississippi Bar, many noted attorneys and judges participate
11
in this program to inform entering law students of the high
standards they will be held to and also to deter them from
engaging in unprofessional, unethical and ill-advised behavior like
that exhibited by Kelly.3
In re Kelly, --- So.2d ----, ----, 2005 WL 613407, *4 ¶ 18 (Miss.
March 17, 2005).
Mississippi Farm Bureau Mut. Ins. Co. v. Parker, 2005 WL 1662812, ** 4-5 ¶ 13 (Miss.
2005).
¶15.
In another recent case, we addressed the inappropriateness of language placed in a post-
decision motion filed with this Court. After the opinion was handed down by this Court, the
aggrieved party, through counsel, filed a motion for recusal of certain justices, and upon a
denial of this motion, the party’s counsel filed a motion for reconsideration. In addressing the
language found in the motion for reconsideration, we stated:
It is undisputed that this Court holds attorneys to the highest of standards.
Furthermore, this is evidenced by the fact that the Board of Bar Commissioners
of the Mississippi Bar has adopted the Lawyer's Creed which contains standards
for lawyers' conduct in association with fellow professionals. A complete
recitation of the applicable rules governing professional conduct would be
redundant. However, we reiterate the importance of the first as well as foremost
duty of attorneys which is to represent the interests of the client. Disturbingly,
Kelly blatantly disregarded the standards of conduct enumerated in the Lawyer's
Creed as well as the Mississippi Rules of Professional Conduct.
*************
Our response to Kelly's flagrantly disrespectful conduct occurring before this
Court, shall serve as a warning to the members of the Mississippi Bar, and as
such, shall conclusively clarify any misconceptions regarding the possibility of
tolerance to improper conduct before this Court.4
3
We wish to make it abundantly clear that we address the conduct of the lawyers in
today’s case only from the standpoint of civility and professionalism. We do not address
today’s case from the standpoint of ethical behavior by way of potential violations of the
Mississippi Rules of Professional Conduct.
4
What is appalling to this Court is that when Bobo and Baker filed the motion for
rehearing containing the disrespectful language on May 26, 2005, they had the benefit of our
12
************
For the aforementioned reasons, this Court concludes that Kelly's behavior is
unacceptable and sanctionable. This is not an issue of free speech as attorneys
are required to abide by higher ethical standards of conduct and give up what
normally would be considered free speech to the public at large while appearing
in Court or filing documents with the Court. Zealous advocacy does not include
blatant disregard or outright disrespect to the judiciary and, accordingly, will not
be tolerated. Our judicial system can not properly function when lawyers
demonstrate a pervasive lack of respect for judges, justices and the courts.
Lawyers are thus required to show respect for the position of judge and for the
institution.
Welsh v. Mounger (In Re Kelly), 912 So.2d 823, 826-28 (Miss. 2005).
One of the cornerstones of the legal profession has always been that our profession is
¶16.
one of service to our citizenry, and that the citizens have a right to expect of their lawyers
exemplary conduct which might be deemed burdensome when viewed by the lay (non-lawyer)
citizens of society.
Attorneys should accept, without reservation, the requirement that they
be held to higher standards of conduct and “give up what normally would be considered free
speech to the public at large while appearing in Court or filing documents with the Court.” Id.
at 828.
Today, we again embrace this explicit tenet which should be unhesitatingly followed
by lawyers on a daily basis.
As we stated in Welsh, today’s case is not about constitutional
free speech, but it is instead about what the judiciary of this state has a right to minimally
expect by way of the conduct of the lawyers who appear before our courts as officers of the
court.
Id. See also Miss. Bar v. Lumumba , 912 So. 2d 871, 883-86 ¶¶ 26-28, 33 (Miss.
2005).
Zealous and effective advocacy is desirable, but it can certainly be accomplished
warning in Kelly which was issued via the opinion handed down on March 17, 2005, more than
two months earlier.
13
without rude, offensive and demeaning language directed toward the court, counsel and/or
party.
¶17.
As we stated in Parker, lawyers are bound by the “well-familiar but perhaps all-too-
often forgotten Lawyer’s Creed,” which states, in pertinent part:
1) I revere the Law, the System, and the Profession, and I pledge that in my
private and professional life, and in my dealings with fellow members of the Bar,
I will uphold the dignity and respect of each in my behavior toward others.
2) In all dealings with fellow members of the Bar, I will be guided by a
fundamental sense of integrity and fair play; Effective advocacy does not mean
that any tactic is acceptable.
************
7) I recognize that my conduct is not governed solely by the Code of
Professional Responsibility, but also by standards of fundamental decency.
************
10) I recognize that effective advocacy does not require antagonistic or
obnoxious behavior, and as a member of the Bar, I pledge to adhere to the higher
standard of conduct which we, our clients, and the public may rightfully respect.
2005 WL 1662812, * 4, ¶ 12.
We find that the lawyers in today’s case unquestionably failed
to adhere to these important tenets which are a vital part of the Lawyer’s Creed.
¶18.
In sum, lawyers who assert that they are but appropriately representing their clients in
a zealous manner by filing with this Court a motion containing language similar to that
contained in the motion for rehearing previously filed in this case, should be prepared to
accept the consequences of their actions. It is a disservice to their clients for lawyers to file
any motion with this Court containing such language.
case is unprofessional and amounts to incivility.
The conduct of the lawyers in today’s
Thus, consistent with the provisions of
M.R.A.P. 40(c), we hereby direct that the motion for rehearing be stricken from the files.
CONCLUSION
14
¶19.
We will always zealously protect this Court as an institution, and when this Court is
attacked in a written document filed with this Court by accusing this Court of “abandoning
balance and neutrality” and legislating from the bench by issuing an opinion which is, inter alia,
unscholarly, illogical, silly, and politically motivated, we will swiftly respond by taking
appropriate action against the responsible party/lawyer(s).
The statements contained in the
motion for rehearing were premeditated and insulting to this Court, as an institution, and they
cannot and will not go unnoticed by this Court. The lawyers in today’s case are very capable
and experienced lawyers, whose allegiance to their client is beyond question. On the other
hand, in looking at their conduct exhibited in this case, they certainly knew better.
Their
conduct cannot be condoned or excused because of petulance or under the guise of zealous
advocacy.
Lawyers who might in the future be of the opinion that they can exhibit with
impunity conduct similar to that exhibited by the lawyers in today’s case, all under the guise
of zealous advocacy, are woefully mistaken.
¶20.
For the reasons stated, the motion for rehearing shall be stricken from the files,
pursuant to the provisions of M.R.A.P. 40(c).
¶21.
MOTION FOR REHEARING STRICKEN FROM THE FILES.
WALLER AND COBB, P.JJ., EASLEY AND RANDOLPH, JJ., CONCUR.
SMITH, C.J., DIAZ, GRAVES AND DICKINSON, JJ., NOT PARTICIPATING.
15
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