In Re Merrell

658 So. 2d 50, 1995 WL 384042
CourtMississippi Supreme Court
DecidedJune 29, 1995
Docket93-M-00961-SCT
StatusPublished
Cited by3 cases

This text of 658 So. 2d 50 (In Re Merrell) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Merrell, 658 So. 2d 50, 1995 WL 384042 (Mich. 1995).

Opinion

658 So.2d 50 (1995)

In re John MERRELL.

No. 93-M-00961-SCT.

Supreme Court of Mississippi, En Banc.

June 29, 1995.

John Merrell, pro se, Parchman.

Robert Bailey, Meridian, for respondent.

En Banc.

ON PETITION FOR WRIT OF MANDAMUS

SMITH, Justice, for the Court:

John Merrell, a state prisoner, filed his request with this Court for a Writ of Mandamus pursuant to Miss.Sup.Ct.R. 21(b) in response to an adverse ruling by Robert Bailey, Circuit Court Judge of Kemper County. Judge Bailey declined to place upon the trial calendar of that court a civil suit filed by Merrell.

Merrell was convicted of the murder of his stepson in the Circuit Court of Kemper County and received a sentence of life in the custody of the Mississippi Department of Corrections. His conviction was affirmed by this Court on May 20, 1993. See Merrell v. State, 618 So.2d 1305 (Miss. 1993).

Merrell alleges that he granted Elizabeth Carroll, a friend, power of attorney to sign his personal checks and pay his bills while he was incarcerated. Merrell further alleges that Carroll used the power of attorney to mis-use "all of Petitioner's money," which consisted of approximately $21,000. Merrell filed a civil suit against Carroll, No. 3782, in the Circuit Court of Kemper County. Discovery was completed and Merrell attempted to set the case for trial. Judge Bailey, on August 16, 1993, denied the motion to place *51 the case on the trial calendar until Merrell was released from custody.

Aggrieved, Merrell filed a Petition for Writ of Mandamus requesting that this Court order Judge Bailey to place Merrell's civil case upon the trial calendar. On April 3, 1994, this Court ordered a response filed by May 20, 1994, from Judge Bailey and Carroll. Carroll failed to file a response. Judge Bailey filed his answer on May 9, 1994, stating inter alia, "Respondent requests that the Supreme Court issue some guidelines for circuit judges to follow in cases similar to this one." Although Merrell raised the single issue of ordering the trial court to place his civil case on the trial calendar, Judge Bailey's response poses the real concern for this Court's consideration — the need for this Court to furnish guidelines to the trial courts. This Court therefore addresses the following issues:

I. WHETHER THIS COURT SHOULD ORDER JUDGE BAILEY BY RULE 21 MANDAMUS TO PLACE MERRELL'S CASE ON THE TRIAL CALENDAR?
II. IF THE CASE IS SET FOR TRIAL, HOW SHOULD THE TRIAL JUDGE HANDLE THE QUESTION OF WHETHER MERRELL SHOULD BE ALLOWED TO ATTEND?

There is no need to discuss the first issue as there does not appear to be any valid reason why Merrell's case could not be placed upon the trial calendar. However, the second issue presents a more difficult question of first impression for this Court to determine. In view of Judge Bailey's request for guidance for circuit judges, it is imperative that this Court adopt guidelines that circuit judges may utilize, in their sound discretion, in considering this important question. This Court, today establishes the requested guidelines, fully acknowledging that prisoners have no absolute right to testify personally. We also continue this Court's precedent of trial judges' inherent right to control their respective trial court dockets.

DISCUSSION OF LAW

IF THE CASE IS SET FOR TRIAL, HOW SHOULD THE TRIAL JUDGE HANDLE THE QUESTION OF WHETHER MERRELL SHOULD BE ALLOWED TO ATTEND?

The standard applied to this question is that trial courts are afforded reasonable latitude in the handling of their trial dockets and calendars. This Court has long held that "[a] trial court has an inherent right to control its docket and is afforded `reasonable latitude' regarding the setting and continuance of cases." Watts v. Pennington, 598 So.2d 1308, 1312 (Miss. 1992); See also Liberty Savings & Loan Ass'n v. Mitchell, 398 So.2d 208 (Miss. 1981).

Although this is a case of first impression for this Court to consider, the question of whether to allow a prisoner to personally appear at a civil trial to which he is a party/litigant has been dealt with many times by courts in other jurisdictions. See generally Jay M. Zitter, Annotation, State Prisoner's Right to Personally Appear at Civil Trial to Which He is a Party — State Court Cases, 82 ALR 4th 1063 (1990). A summary of general principles concerning this subject was provided in Strube v. Strube, 158 Ariz. 602, 604-06, 764 P.2d 731, 733-35 (1988), wherein that court stated:

The United States Supreme Court has established that a prisoner has a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72, 78 (1977). This right is founded in the due process clause of the fourteenth amendment. Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935, 964 (1974). Of course, a prisoner's right of access is not absolute. Whitney v. Buckner, 107 Wash.2d 861, 866, 734 P.2d 485, 488 (1987). However, at a minimum, due process requires that absent a countervailing state interest of overriding significance, prisoners must be afforded meaningful access to the courts and an opportunity to be heard. See Bounds, 430 U.S. at 822, 97 S.Ct. at 1495, 52 L.Ed.2d at 79; Boddie v. Connecticut, 401 U.S. 371, 377, *52 91 S.Ct. 780, 785, 28 L.Ed.2d 113, 118 (1971).

In the instant case, the court of appeals correctly noted that, under Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), the question of whether to permit a prisoner/litigant in a civil case to be physically present in court is within the trial court's sound discretion. However, Price also requires that:

[the trial court's] discretion is to be exercised with the best interest of both the prisoner and the government in mind. If it is apparent that the request of the prisoner to argue personally reflects something more than a mere desire to be freed temporarily from the confines of the prison, that he is capable of conducting an intelligent and responsible argument, and that his presence in the courtroom may be secured without undue inconvenience or danger, the court would be justified in issuing the writ.

Id. at 284-85, 68 S.Ct. at 1059-60, 92 L.Ed. at 1369.

The court's discretion should be exercised after balancing the interest of the prisoner against the interests of the other parties and the state, including the authorities having custody of the prisoner. Some of the factors to be considered in balancing the respective interest were set forth in Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir.1976), wherein that court stated:

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Bluebook (online)
658 So. 2d 50, 1995 WL 384042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-merrell-miss-1995.