E-Filed Document

Jul 14 2015 11:44:07

2015-M-00842

Pages: 9

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

PLAINTIFF

ST. DOMINIC-JACKSON MEMORIAL HOSPITAL

vs.

Rankin County Chancery cause no. 15-1039

Mississippi Supreme Court cause no.2015-M-842

TIFFANY RENEE SIMMONS,

CANDICE SIMMONS CRANE,
MISSISSIPPI STATE DEPARTMENT OF HEALTH,
MISSISSIPPI DEPARTMENT OF MENTAL HEALTH,
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES,
MISSISSIPPI DEPARTMENT OF REHABILITATION SERVICES,
MISSISSIPPI DIVISION OF MEDICAID &
DAVID J. DZIELAK, PH.D., IN HIS OFFICIAL CAPACITY
AS EXECUTIVE DIRECTOR OF
MISSISSIPPI DIVISION OF MEDICAID

DEFENDANTS

MOTION FOR DISQUALIFICATION OF TRIAL JUDGE

COMES NOW, Mississippi Department of Mental Health ("MDMH")/Jaquith Nursing
Home, by and through its attorneys of record, and files this, its Motion for Disqualification of
Trial Judge under MRAP Rule 48B in the above cause, and would show unto the Court the
following, to wit:
1.
On June 4, 2015, counsel for MDMH filed a motion to recuse the trial judge in the above
cause. Please see Motion to Recuse and Exhibits attached as "Exhibit A" to this motion and
hereby incorporated by reference as if reproduced in words and figures herein. MDMH noticed
this motion for a hearing, along with other post-trial motions, to be held on June 15, 2015.

2.
When the parties appeared for the hearing, the trial judge declined to hear or rule on the
motion to recuse and declined to rule on any other post-trial motions. The trial judge cited the
Mississippi Supreme Court's emergency stay of his previous order as the reason he would not

hear or rule on any pending motions. When requested by counsel for MDMH to enter an order
or make some record regarding the trial court's refusal to rule on the motions, the chancellor
further declined to rule or enter such an order.

3.
The Mississippi Rules of Appellate Procedure provide that thirty (30) days following the
filing of a recusal motion, if the trial court has not ruled, the filing party may within fourteen ( 14)
days seek review by the Mississippi Supreme Court. The motion to recuse was filed in the trial
court on June 4, 2015, and the thirty (30) days allowed for the judge to rule expired July 4, 2015.
4.
MDMH, through counsel, now avails itself to the Mississippi Supreme Court within the
fourteen (14) day Rule 48B filing period to request disqualification of the trial judge pursuant to
the Motion to Recuse attached as Exhibit A and pending before the trial court.
WHEREFORE, PREMISES CONSIDERED, the Department of Mental Health/Jaquith
Nursing Home respectfully prays that this Honorable Court disqualify the trial judge in this cause
and appoint a Special Chancellor to hear post-trial motions and/or take any other actions as may
be required in this cause. Defendant requests general relief.
TIIlS, the

Jtf"bciay of

~~

, 2015.

CYN I EUBANK
SPE AL ASSISTANT ATTORNEY GENERAL
ATTORNEY FOR MDMH
M BAR NO. 1 309

DEPARTMENT OF MENTAL HEALTH

1101 Robert E. Lee Building
239 North Lamar Street
Jackson, Mississippi 39201
(601) 359-1288

CERTIFICATE OF SERVICE
I, Gene W. Rowzee, do hereby certify that I have this day caused to be sent electronically
and mailed by United States Mail, postage prepaid, a true and correct copy of the above and
foregoing MOTION to the following:
Sheldon G. Alston, Jonathan R. Weme, and Reed T. Nunnelee
BRUNINI, GRANTHAM, GROWER & HEWES, PLLC
190 East Capitol Street, Suite 100 (39201)
Post Office Drawer 119
Jackson, MS 39205
Jeannine M. Carafello
1911 Dubarton Drive

JacksOJ1, MS 392 16

1'

T HI , the I q-day of

:sv. (r
GENE W. ROWZEE, JR.
SENIOR STAFF A TIO RN
MS. BAR NO. 10836

IN THE CHANCERY COURT OF RANKIN COUNTY, MISSISSIPPI

ST. DOMINIC-JACKSON MEMORIAL HOSPITAL
VS.

PLAINTIFF
CAUSE NO. 15-1039

TIFFANY RENEE SIMMONS,

CANDICE SIMMONS CRANE,
MISSISSIPPI ST ATE DEPARTMENT OF HEALTH,
MISSISSIPPI DEPARTMENT OF MENTAL HEALTH,
MISSISSIPPI DEPARTMENT OF HUMAN SERVICES,
MISSISSIPPI DEPARTMENT OF REHABILITATION SERVICES,
MISSISSIPPI DIVISION OF MEDICAID &
DAVID J. DZIELAK, PH.D., IN HIS OFFICIAL CAPACITY
AS EXECUTIVE DIRECTOR OF
MISSISSIPPI DIVISION OF MEDICAID

DEFENDANTS

MOTION TO RECUSE
COMES NOW, Mississippi Department of Mental Health ("DMH")/Jaquith Nursing
Home, by and through its attorneys of record, and files this, its Motion to Recuse in the above
cause pursuant to Rule 1.11 of the Uniform Chancery Court Rules and Canon 3(E)( l) of the
Mississippi Code of Judicial Conduct, and would show unto the trial court the following, to wit:
1.
On Monday, June 1, 2015, attorneys for the parties in the above action met in chambers
to discuss this matter prior to going on the record to argue the case. During that conference and
later on the record, the chancellor made no disclosure regarding any previous personal or
professional connection to the parties. Attorneys for the parties were provided no information
which might be relevant to a consideration of whether disqualification might be appropriate.
2.

Upon consultation with DMH staff members concerning this matter on June 3, 2015, a
staff member expressed concern that Candice Simmons Crane might have a connection with the
court in some capacity. Wendy Bailey, DMH's Director of the Bureau of Outreach, Planning,

and Development who supervises the Division of Public Information, conducted simple
"Google" search. She discovered a "Linkedln" profile on which Mrs. Crane purported to have
been employed as the "Official Court Reporter for Hon. John C. McLaurin, Jr.," the chancellor
assigned to this matter. See Affidavit of Wendy Bailey, attached as Exhibit A to this motion and
hereby incorporated by reference as if reproduced in words and figures herein.
3.

Canon 3(E)( 1) of the Mississippi Code of Judicial Conduct directs the following:

E. Disqualification
(1) Judges should disqualify themselves in proceedings in which
their impartiality might be questioned by a reasonable person knowing
all the circumstances or for other grounds provided in the Code of
Judicial Conduct or otherwise as provided by law ....

The commentary further provides that "[a] judge should disclose on the record
information that the judge believes the parties or their lawyers might consider relevant to the
question of disqualification, even if the judge believes there is no real basis for

disquallf1eation." [Emphasis added]. The Canon is self-executing, and the Mississippi Supreme
Court has held that it "enjoys the status of law such that we enforce it rigorously ...." Collins v.

Dixie Transport, Inc., 543 So.2d 160, 166 (Miss. 1989).

4.
Canon 3 and Mississippi case law establish an objective test of judicial impartiality. If a
reasonable person, knowing all of the circumstances surrounding the issue, would question the
impartiality of the presiding judge, that judge must recuse himself. Dowbak v. State, 666 So. 2d
1377, 1389 (Miss. 1996); Green v. State, 631 So. 2d 167, 177 (Miss. 1994); Jenkins v. Stale , 570
So. 2d 1191, 1192 (Miss. 1990); Collins, 543 So. 2d at 166.; Rutland v. Pridgen, 493 So. 2d 952,
954 (Miss. 1986). Under this standard, proof of actual partiality or bias is unnecessary. The mere

appearance of partiality or bias is enough to require disqualification. As the Mississippi

Supreme Court has held, "(p)urity of heart is not enough. Judge(s') robes must be as spotless as
their actual conduct. Collins, 543 So. 2d at 166 [quoting Hall v. Small Business Admin., 695
F.2dl 75, 176 (5th Cir. 1983)]. The issue under Canon 3E(l) is whether there is a reasonable
perception by the parties and the public that the judge may not be impartial. See, e.g., Jenkins v.

Forrest County General Hosp., 542 So. 2d 1180, 1181 (Miss. 1988) ("The issue is not any
wrongdoing on the part of [the judge] but the potential for such and moreover, how this situation
appears to the general public and the litigants whose cause comes before this judge.").
5.

In applying the reasonable person test to this fact scenario, counsel for DMH cannot
reconcile how a chancellor might preside over his court reporter's case, especially a case as
personally and emotionally devastating as the case at bar, and a reasonable person not question
that chancellor's impartiality. This is especially true considering the court's omission in not
disclosing Mrs. Crane's former employment.
WHEREFORE, PREMISES CONSIDERED, the Department of Mental Health/Jaquith
Nursing Home respectfully prays that this Honorable Court recuse himself and withdraw his
order of June 3, 2015, or, in the alternative, recuse himself entirely from this matter and from
consideration of the Motion for Stay, and any Motion to Reconsider or other motions to be filed
in this case. Dcfendat&e4uests genera l relief
THIS, the

i...:

day f

::r

lA """---

2015.

Gl1NE W. R WZEE, JR
SENIOR STAFF ATTORNEY I
MS. BAR NO. 10836

DEPARTMENT OF MENTAL HEALTH

1101 Robert E. Lee Building
239 North Lamar Street
Jackson, Mississippi 39201
(601) 359-1288

C RTIFICATE OF SERVICE

I, Gene W. Rowzee, do hereby certify that I have this day caused to be sent electronically
and mailed by United States Mail, postage prepaid, a true and correct copy of the above and
foregoing Request to the following:
Sheldon G. Alston, Jonathan R. Weme, and Reed T. Nunnelee
BRUNINI, GRANTHAM, GROWER & HEWES, PLLC
190 East Capitol Street, Suite 100 (39201)
Post Office Drawer 119
Jackson, MS 39205
Jeannine M. Carafello
1911 Dubarton Drive
Jackson, MS 39216

ti

THIS, the~ day

_
of ~-X..::..-vJ(__,
-=:::___-----::~;

AFFIDAVIT
I, Wendy Bailey, duly sown, deposes and states as follows:

l, I am the Bureau Director for Outreach, Planning and Development for the Mississippi
Department of Mental Health.
2. On Wednesday, June 3, 2015, it was brought to my attention by DMH staff that Ms.
Candice Simmons Crane, a party in the St. Dominic - Jackson Memorial Hospital v.
Tiffany Rene Simmons, et al., might have a connection to the court.

3. Upon conducting a simple internet search, I discovered on Ms. Crane's "Linked In"
profile that she was the Official Court Reporter for the Honorable John C. McLaurin, Jr.
from March 2007 through March 2008. I have attached to this Affidavit a copy of the
"Linked In" profile I discovered.

State of Mississippi
County of HINDS
SWORN TO AND SUBSCRIBED before me to be a true and correct statement and
signature of Wendy Bailey, given my seal this the 3rd day of June, 2015.
1,

l2Jnm1 ~Jlw

Notary Publt~

b-e

Candice Simmons Crane, CSR I Linkedln

https;//www.Jinkedin.com/pub/candice-simmons-crane-csr/72/86/79a

IM1at Is Linkedln?

Candice Simmons Crane,

CSR

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