Serial: 197054 IN THE SUPREME COURT OF MISSISSIPPI

No. 2015-M-00332

SINGING RIVER HEALTH SYSTEM

v.

CYNTHIA N. ALMOND AND DONNA B. BROUN, FRANCES HANNAH, ALISHA DAWN SMITH, SHARYN BROOKS, JOHNYS BRADLEY, CABRINA BATES, VANESSA WATKINS, BART WALKER, AND LINDA D. WALLEY, INDIVIDUALLY AS BENEFICIARIES OF AND DERIVATIVELY FORAND ON BEHALF OF SINGING RIVER HEALTH SYSTEM EMPLOYEE'S RETIREMENT PLAN AND TRUST

EN BANC ORDER

Petitioner

Respondents

FILED MAR 2 6 2015

SUPREME COURT ClERK

This matter is before the Court, en bane, on the "MRAP 48B Motion for

Disqualification of Trial Judge, Application for Extraordinary Relief and Motion to Stay,"

the "MRAP lO(e) and lO(f) Motion to Supplement Record and MRAP 48A(c) Motion for

Permission to File Documents Under Seal" filed by Singing River Health System. The Court

also has considered the response and "Motion to Dismiss Appellant's MRAP 48B Motion

for Disqualification of Trial Judge, Application for Extraordinary Relief and Motion to Stay

and for Sanctions" filed by Cynthia N. Almond, a response filed by Donna B. Broun, the

"Motion for Access to Documents filed Under Seal" filed by Michael Tolleson, and

Stephanie Barnes Taylor's "Joinder" to the request for disqualification of trial judge.

Singing River seeks the recusal of Chancellor D. Neil Harris, citing the following: the

chancellor's current lawsuit against the State, Jackson County, and the City of Ocean

Springs; his prior recusal in a case involving Ocean Springs; his adverse relationship with

counsel for Singing River; the chancellor's public comment - "I don't want this plan

terminated"- made regarding the subject of the litigation; and the chancellor's appointment

of a special master to hear the issue of his recusal. The Respondents oppose the motion.

Almond also seeks to dismiss the Motion for Disqualification of Trial Judge and argues that

the Court does not have proper jurisdiction to hear the matter under Mississippi Rule of Civil

Procedure 53(g)(2), which provides the procedure regarding acceptance of a special master's

report and lodging an objection thereto. Having duly considered these filings, we find as

follows.

The responsibility to hear and dispose of a motion for recusal rests first with the judge

against whom recusal is sought. See Uniform Chancery Court Rule 1.11. Chancellor Harris

erred by appointing a special master to hear Singing River's motion to recuse. Appellate

review following the denial of a motion to recuse is controlled by Mississippi Rule of

Appellate Procedure 48B. As a result, Rule 53(g)(2) is inapplicable to a motion for recusal,

and the Court finds that Almond's motion to dismiss should be denied.

"Judges should disqualily themselves in proceedings in which their impartiality might

be questioned by a reasonable person knowing all the circumstances .... "Code of Judicial

Conduct Canon 3E(1). Individually, Singing River's complaints may not warrant recusal.

But, when taken as a whole, the Court finds that a reasonable person knowing all of the

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circumstances might question Chancellor Harris's impartiality. After due consideration, we

find that Chancellor Harris should recuse in this matter and, thus, the motion for

disqualification should be granted. Accordingly, this matter is remanded to the trial court for

entry of an order of recusal.

Having found that the chancellor should have recused in this case, the Court agrees

with the Respondents' request and deems it appropriate to issue a stay in the underlying

matters. The parties shall maintain the status quo as detailed in the "Agreed Stay Order"

entered on January 15, 2015, by the United States District Court for the Southern District of

Mississippi. The stay is imposed until further order of this Court or ofthe newly appointed

judge.

In regard to the remaining motions, the Court finds as follows. Almond accuses

Singing River of "judge shopping" and seeks sanctions against them. Because we find

Chancellor Harris's recusal is warranted, the request for sanctions is denied. Singing River's

request to supplement the record and file documents under seal is not well taken and should

be denied. As a result, Tolleson's Motion for Access to Documents Filed Under Seal is

dismissed as moot.

IT IS THEREFORE ORDERED that the "Motion to Dismiss Appellant's MRAP 48B

Motion for Disqualification of Trial Judge, Application for Extraordinary Relief and Motion

to Stay and for Sanctions" filed by Cynthia N. Almond is denied in part regarding the motion

to dismiss and for sanctions and granted in part regarding the request for a stay.

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IT IS THEREFORE ORDERED that the "MRAP lO(e) and lO(f) Motion to

Supplement Record and MRAP 48A(c) Motion for Permission to File Documents Under

Seal" filed by Singing River Health System is hereby denied. Further, the "Motion for

Access to Documents Filed Under Seal" filed by Michael Tolleson is dismissed as moot.

IT IS FURTHER ORDERED that the "MRAP 48B Motion for Disqualification of

Trial Judge, Application for Extraordinary Relief and Motion to Stay" filed by Singing River

Health System is hereby granted. This matter is remanded to the Chancery Court of Jackson

County for entry of an order of recusal consistent with this order. Further, the underlying

cases are stayed pending appointment of another judge by this Court.

SO ORDERED, this the 24th day ofMa ch, 20 .

AGREE: WALLER, C.J., LAMAR, KITCHENS, CHANDLER, AND KING. JJ.

DISAGREE: DICKINSON, P.J.

NOT PARTICIPATING: RANDOLPH, P.J., PIERCE AND COLEMAN, JJ.

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