ON PETITION FOR WRIT OF PROHIBITION
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
This cause is before the Court upon a Petition for Writ of Prohibition filed by the State of Mississippi, ex rel Edwin Lloyd Pittman, Attorney General, against J. Ruble Griffin, Judge of the Second Circuit Court District of Mississippi, to prohibit him from (1) proceeding with a contempt action against the Attorney General of the State of Mississippi or any of his staff for an alleged violation of the judge's bench opinion of February 21, 1984, and his order dated February 28, 1984; and (2) enjoining petitioner from prosecuting Cause No. 123,959 in the Chancery Court of the First Judicial District of Hinds County, Mississippi, insofar as it applies to the defendant, William G. Burgin, Jr., until the petitioner pays unto William G. Burgin, Jr. the sum of $26,651.93, attorney's fees. Judge Griffin filed a response to the petition.
William G. Burgin, Jr., defendant in Cause No. 15,934 in the Circuit Court of Lowndes County, Mississippi, and a defendant in Cause No. 123,959 in the Chancery Court of the First Judicial District of Hinds County, Mississippi, was permitted to intervene in the present action and has answered the petition. The contempt proceeding was stayed pending disposition of the Petition for Writ of Prohibition.
Prior to January 1, 1984, the then Attorney General filed suit in the Chancery Court of Lowndes County, Mississippi, on behalf of the State of Mississippi against William G. Burgin, Jr. seeking a money judgment. The cause was transferred to the Circuit Court of Lowndes County, and Honorable J. Ruble Griffin, Judge of the Second Circuit Court District of Mississippi, was appointed as Special Judge to preside over the cause. On February 15, 1984, the State of Mississippi filed a motion for voluntary dismissal without prejudice under Rule 41 (a)(2), Miss. R. Civ. P., and the motion was heard February 21, 1984, before Judge Griffin in Jackson, Hinds County, Mississippi, at which time the judge issued a bench opinion, pertinent parts of which follow:
So I am going to sustain the motion, but at the same time, I think these comments and the Fifth Circuit Court cases require that you pay the costs of litigation up to this point. I think that's what is required by it and, as I said, that's not limited to the taxable costs - in other words, costs payable to the Court officials - but to take into consideration reasonable attorneys' fees and expenses, so I'm going to allow it. Now, how much I'm going to allow, I don't know.
The other conditions that you've mentioned, I am not going to consider. I'm going to let them dismiss and file when they get ready and where they want to and let the next Judge - I assume if it is filed in Hinds County, it won't be me; it will be a Judge in Hinds County because there'll be no reason for him to recuse himself because I don't think they are kin or close neighbors of Pittman or Allain or Burgin so I'm assuming I won't be the next Judge if it is filed - so the next Judge can take up those matters as Mr. Dillard pointed out, but I think I am obligated, Mr. Dillard, to impose reasonable costs of litigation on the State if they refile. That will be the point. If you refile, you've got to pay it and if you don't refile, you don't have to pay it.
Are they precluded from filing any new lawsuit until this is settled?
Yes, sir and it is the Rule that before you file another case, you will have to pay what is due - the attorneys' fees awarded and the expenses and the accrued costs in Cause No. 15,934 in Lowndes County.
On February 22, 1984, Assistant Attorney General W. O. Dillard, one of the attorneys representing the State of Mississippi, contacted Judge Griffin by telephone for a clarification of the February 21, 1984, bench order. The affidavit of Assistant Attorney General Dillard is made Exhibit B to the petition, and, among other things, reflects:
5. I advised the Court that the State wanted to file its lawsuit and felt like it had the right to do so and requested the Court to look at Rule 41 (e) of Mississippi Rules of Civil Procedure to see if he agreed. The Judge stated to me, yes, you can file it and when I Prepare the order I will change it to read file but can't proceed until the fees are paid. We also discussed the federal fules [sic] and a federal case which held that if an attorney's fee is allowed, that it can only be for the work ...