Sometimes a single case can provide the catalyst for judicial politics. In 2008, Alex Alston criticized the Mississippi Supreme Court fresh off his defeat in Prudential v Stewart. In 2009, medical organizations and Gov. Haley R. Barbour are asking the Court to reconsider a ruling in Price v Clark. Judges should make decisions based on the law and the facts; but that does not mean they are unaware of electoral politics.

Prudential v Stewart was a life insurance dispute. Dr. Edsel Stewart sought a $1 million life insurance policy. Before the policy was activated, he had a stroke and slipped into a coma. His family did not notify Prudential Insurance Company of America about the change in health. Prudential instructed the insurance broker to deliver the policy only after he verified personally Stewart's health was unchanged. Learning of the stroke, the broker informed Prudential which ordered the policy returned unexecuted. A few weeks later Stewart died; the family made a demand for the $1 million; Prudential refused; Stewart's family sued.

A Hinds County jury awarded the Stewarts $36.9 million in total judgments and fees. Prudential appealed to the Supreme Court which found "a contract for insurance was never formed, and therefore, no life insurance policy was in effect." In September 2007, the Court ruled 6-2 for Prudential and dismissed the verdict. Alex Alston was the attorney representing the Stewarts. He lost what would have been millions of dollars in attorney's fees.

The following year, Alston waged a media campaign against the Court for what he claimed was a nearly five year track record of ruling against plaintiffs in reversals 88 percent of the time, and never reversing a jury verdict against a plaintiff on appeal. Alston supported and contributed to the campaign of Jim Kitchens who then successfully defeated the conservative Chief Justice Jim Smith.

The campaign narrative was simple: the political pendulum on the Court had swung too conservative and it was a time for a change. Three of the four incumbents on the Court were defeated for reelection.

The changing litigation climate in Mississippi had more to do with the paradigm shift in the legislature with the Mississippi Tort Claims Act of 2004 (MTCA) than a pendulum swing on the Court. And it was an attempt to avoid the MTCA that brings us to Price v Clark.

Nina Price's lawsuit alleged her husband's doctor's negligent failure to timely diagnose a pituitary tumor caused her husband's wrongful death. She sued the doctor, the neurologist, the Cleveland Medical Clinic, the Cleveland Medical Alliance and the Bolivar Medical Center.

Price's husband died August 14, 2004. The MTCA cap on noneconomic damages was to go into effect on September 1, 2004. MTCA required a sixty day notice-of-claim. She mailed the notice-of-claim letters on August 30 and filed suit on August 31. She admitted her failure to timely file pre-suit notification was to slip in before the noneconomic damages cap began. The trial court dismissed her case due to her pre-suit failure. But Price wished to use the fruit of that wrongfully filed case to extend the statute of limitations in a subsequent reformatted lawsuit. In a partial victory for Price, the Supreme Court ruled to allow this tolling on the statute of limitations.

The Mississippi State Medical Association, Hospital Association, Health Care Association, Nurses Association and the Miss. Tort Claims Board filed an amicus curiae brief with the Court asking for a rehearing of Price. Gov. Barbour, in his first amicus curiae brief in office, joined with these organizations.

Now conservatives are making a case against a pendulum swing by suggesting the Court's actions in three recent decisions (Price, Arceo v Tolliver, and Stuart v UMMC) are eroding tort reform. Their briefs argue these rulings could extend the statute of limitation by over 750 additional days - effectively inverting a policy decision by the legislature to expedite litigation, and creating instead a mechanism to delay and obstruct the timely disposition of lawsuits.

Justice Mike Randolph warned of such actions in his dissent in Price, "The appropriate constitutional body, the Legislature, determined their adoption was in the best interests of the citizens of this State... The effect of today's decision is judicial nullification of those pre-suit notice requirements... [this] ruling grants litigants license to spurn legislative directives" and will "reward those who intentionally fail to follow statutorily-prescribed conduct and likely will lead to further erosion of the legislation."

The Court should not be measured on a pendulum, but on a constitutional plum line. A 2008 paper by Ole Miss Law Professor Kyle Duncan argued the Court from 2004 to 2008 generally was restrained, ruling on statutory intent. If so, Alston's criticisms properly belonged with the Legislature not the Court. The Court should refrain from an actual pendulum swing in reaction to Alston and keep political debates in the legislature where they belong.

Brian Perry is a partner in a public affairs firm. Reach him at reasonablyright@brianperry.ms.