Swiss Cheese Chronicles: Sua Sponte or on Motion of the Parties?

In reading the responses to the Miss. Supreme Court, the phrase “missing the forest for the trees” springs to mind.  It seems that all parties involved have become so focused on the competing federal and chancery cases, they forget the underlying and undeniable facts.  Subsequent to the ex parte hearing, six separate orders were entered in the Almond and Lay cases.  These are orders that were a result of action taken at the January 12 meeting.

  1. Order Granting Motion to Intervene by Special Fiduciary
  2. Order Authorizing Special Fiduciary Trustee to Enter into Settlement and Release
  3. Order Authorizing Payment of Special Fiduciary Fees
  4. Order Approving Invoice for Payment by Parties
  5. Order Approving Fees and Expenses of Charles J. Mikhail
  6. E-mail order staying all cases and cancelling hearings

These are facts that are not in dispute. Some lawyers are now making claims which fly in the face of facts and the record of the court.

Special Fiduciary Simpson claims to lay out “facts” to the Court, yet this is one arena where he comes up short. Simpson, a former Circuit judge states, “Judge Hilburn simply informed everyone that the court intended, sua sponte, to stay all proceedings in Chancery Court…”  (Sua sponte basically means “all on his own.”)  Reeves and  Mestayer make the same claim.  These claims are entirely false.  A simple review of the docket reveals that defendant Singing River Health System filed a motion to stay on Dec. 30, 2015 in all eight chancery court actions.   Further, Simpson, Reeves, and Mestayer all received notice of SRHS’ motion to stay.


Indeed, Judge Hilburn notes the opposite of Simpson, Reeves, and Mestayer, that on January 11, he was “reviewing all motions noticed for January 13th that had not been previously ruled on by the court.”  One of those motions was the above referenced motion to stay filed by SRHS.

Second letter response of Judge Breland Hilburn

Hilburn’s order of a “temporary stay” was contingent upon the status of federal litigation. He admits that he attended the January 12 meeting to determine the status of the federal litigation.

First letter response of Judge Breland Hilburn

Also not in dispute is the list of those who attended the January 12 ex parte hearing. Those who are related to the Almond case include:

  1. Kelly Sessoms, attorney at Dogan & Wilkinson representing SRHS defendants
  2. Brett Williams, attorney at Dogan & Wilkinson and SRHS board attorny, representing SRHS defendants
  3. Celeste Oglesby, in-house counsel for SRHS, representing SRHS defendants
  4. Scott Taylor, an attorney, in his capacity as Trustee of SRHS
  5. Billy Guice, attorney for JCBOS
  6. Special Master Britt Singletary
  7. Special Judge Breland Hilburn
Bottom Line:
  1. Singing River asked the Court for a stay of all cases – including Almond – on the basis of a pending federal settlement.
  2. Judge Hilburn ordered  stay of all cases – including Almond  – on the basis of the pending federal settlement.
  3. Singing River attorneys who have made appearances in Almond participated in a hearing with Judge Breland Hilburn, where Denham and Barton were not present.
  4. Judge Hilburn ultimately made his decision for the stay in Almond based on information discussed during the ex parte hearing.
  5. Denham and Barton did not have a chance to be heard or to respond.

None of the above is in dispute. The standard for a judge to recuse is where his “impartiality might be questioned by a reasonable person knowing all the
circumstances.”  There is no “might be.” There exists a question of impartiality of both Judge Hilburn and Special Master Singletary. On that basis both should recuse.

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