Welsh v. Mounger

912 So. 2d 823, 2005 WL 613407
CourtMississippi Supreme Court
DecidedMarch 17, 2005
Docket2002-CA-01245-SCT, 2005-CS-00538-SCT
StatusPublished
Cited by4 cases

This text of 912 So. 2d 823 (Welsh v. Mounger) 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
Welsh v. Mounger, 912 So. 2d 823, 2005 WL 613407 (Mich. 2005).

Opinion

912 So.2d 823 (2005)

Edwin WELSH
v.
William M. MOUNGER, II, E.B. Martin, Jr., MSM, Inc. and Mercury Wireless Management, Inc.
In re Dana E. Kelly.

Nos. 2002-CA-01245-SCT, 2005-CS-00538-SCT.

Supreme Court of Mississippi.

March 17, 2005.

*824 James R. Hubbard, Dana E. Kelly, Phillip J. Brookins, John Leonard Walker, Jackson, Grady F. Tollison, E. Farish Percy, Oxford, attorneys for appellant.

John L. Maxey, George R. Fair, Paul Stephenson, Jackson, Donna Ross Philip, attorneys for appellee.

EN BANC.

SMITH, Chief Justice, for the Court.

¶ 1. This case arises from statements made by Dana E. Kelly in his motion for reconsideration of this Court's denial of his motions for the recusal of two justices made after the Court's opinion in Welsh v. Mounger, 883 So.2d 46 (Miss.2004), was handed down. The primary focus of Kelly's motions for reconsideration was upon Justice Dickinson. Kelly was ordered to appear before this Court, sitting en banc, on January 13, 2005, at which time he was offered an opportunity to further address the Court. Kelly declined to make any statement to the Court. His counsel, Rob McDuff, did address the Court. Due to Kelly's untimely filed motion for recusal, his refusal to accept responsibility for making inappropriate statements to this Court concerning Mounger being the "highest bidder" in Justice Dickinson's election campaign, and further due to his repeated false statements to this Court concerning Mounger being the "single largest individual major donor to Justice Dickinson's election campaign," even after being clearly informed by this Court that the statements were false, we find that sanctions in the amount of a $1,000 and a public reprimand are appropriate.

FACTS

¶ 2. This matter began in the Chancery Court of Hinds County where Edwin Welsh, represented by Kelly, sued various defendants, including William Mounger II. After hearing testimony of over twenty witnesses over eleven days of trial, the Chancellor entered a judgment in favor of the defendants, and against Welsh. Then, Welsh appealed to this Court, whereupon we handed down a decision in July, 2004, affirming the Chancellor. Only after this Court handed down its decision which was unfavorable to Welsh, did Kelly file a motion for the recusal of Chief Justice Smith and Justice Dickinson. In the motion, Kelly alleged that "defendant Mounger was the single largest individual major donor to Justice Dickinson's election campaign."

¶ 3. By separate orders, both Justices denied the motions for recusal. In Justice Dickinson's order denying recusal, he pointed out that, when the case was decided on the merits, he was unaware of Mounger's contribution. He also pointed out that Kelly improperly waited over five months, until after this Court handed down its decision, before filing the motion to recuse. The order denying recusal also informed Kelly in no uncertain terms that the Certified Public Accountant for Justice Dickinson's campaign investigated Kelly's allegation that "defendant Mounger was the single largest individual major donor to Justice Dickinson's election campaign," and found it to be false.

*825 ¶ 4. Welsh filed a motion for reconsideration which contained the following:

As the Clarion Ledger has noted, `[o]ur judicial elections have become highest-bidder exercises. It has to stop or the public will lose all faith in the system.' As the Chief Justice recently noted, `[t]rue or not, most people believe that too much money corrupts ...'
In this sense, one of the two Defendants in this case was the highest bidder in the election campaign of Justice Dickinson.

Our order denying the motion for reconsideration included the following language:

attorney Dana E. Kelly is hereby ordered to show cause, within five days from the date of the Order, why he should not be sanctioned for including the language in the motion, and is further ordered to present to this Court all evidence known to him which supports his allegation that `one of the two Defendants in this case was the highest bidder in the election campaign of Justice Dickinson.'

¶ 5. Kelly filed his response, as ordered. He presented no evidence which supported his prior statement that "one of the two Defendants in this case was the highest bidder in the election campaign of Justice Dickinson." Instead, he insisted that the language in question "was a fair reference to documented public opinion, . . ." and further told this Court that the language "was not intended and cannot fairly be read as an accusation that a judge sold his vote." Kelly appears to feel that the matter was not even fairly debatable.

¶ 6. Kelly then characterized this Court's order as "an incomplete and thus inaccurate description of the language of the motion and omits any reference to the context in which the argument is presented." Accordingly, he urged this Court to look at the "context" and ignore the literal language ("was the highest bidder"), which was the same language in which he authored and filed with this Court.

¶ 7. Kelly told this Court that the "context" is provided by a speech given by the Chief Justice of the Court, and an editorial in the Clarion-Ledger newspaper. The quote from the Clarion-Ledger (which is cited as part of the "context") states that "[o]ur judicial elections have become highest-bidder exercises. It has to stop or the public will lose faith in the system." It does not say "appears to have become highest-bidder exercises," but instead says, "have become highest-bidder exercises." (emphasis added).

¶ 8. Thus, Kelly insists that, not only must we ignore his literal language and read it in "context" with the Clarion-Ledger, but we must also accept that the Clarion-Ledger language does not really mean what it says and should also be read in context. Kelly's efforts are a weak, disingenuous attempt to explain (rather than a complete and unequivocal apology for) his inappropriate and unfounded accusation. There is also Kelly's repeated, false representation to this Court that "Mounger was the single largest individual contributor to Justice Dickinson's election campaign. . . ."

¶ 9. This allegation was first made by Kelly in the motion for recusal. After Justice Dickinson's campaign treasurer informed us that the statement was not accurate, this Court informed Kelly, expecting him to check the records of the Secretary of State and withdraw his false assertion. However, without bothering to carefully recheck the records of the Secretary of State, Kelly ignored this Court's admonition, and he repeated the false statement three times in his motion for reconsideration. He even underlined it to afford it emphasis. He then repeated the false allegation for a third time in his *826 response to our show cause order. Only after we ordered him to appear before this Court did he check the records and learn that indeed his statement was not accurate. Even then, he filed nothing with this Court to retract or apologize for these false statements. Making a false statement to this Court, repeatedly in the face of the truth, quickly approaches what many trial practitioners would maintain to be willful, wanton, and gross negligent behavior.

¶ 10.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Thompson v. Florida Bar
526 F. Supp. 2d 1264 (S.D. Florida, 2007)
City of Jackson v. Estate of Stewart ex rel. Womack
939 So. 2d 758 (Mississippi Supreme Court, 2005)
Miss. Farm Bureau Mut. Ins. Co. v. Parker
921 So. 2d 260 (Mississippi Supreme Court, 2005)
City of Jackson, Mississippi v. Emma Womack
Mississippi Supreme Court, 2003

Cite This Page — Counsel Stack

Bluebook (online)
912 So. 2d 823, 2005 WL 613407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welsh-v-mounger-miss-2005.