I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Congress gave the President the authority to “Establish[ ] national immigration enforcement policies and priorities” and that’s what Obama did

The quote in the title is the full text of 6 U.S.C. § 202(5).

Executive discretion– the most familiar example being prosecutorial discretion– is a bedrock concept of our law.  The executive cannot pursue every case, and so they have the authority, often explicitly granted by statute, to select what cases to pursue.  It is not just legal but a good thing that this discretion can be exercised case-by-case (deciding whether individual cases warrant prosecution, for instance) or through policy (deciding which cases most warrant prosecution resources and which ones, as a matter of policy, do not).  Immigration law is an area where Congress has explicitly granted the President the authority to make these sorts of choices, including at the level of having policies about which cases to pursue deportation and which cases to not pursue deportation.  Congress has explicitly provided principles for that exercise that provides that the policies should favor deportation of criminals, national security threats, and the like, over people who are merely working here.

And that has what the President has done.  I have three essential readings on the subject.  One is from Eric Posner, a law professor at the University of Chicago who served as a lawyer in the most recent Bush administration.  The other is from Walter Dellinger, who served as the director of the Office of Legal Counsel from 1993-1996.  Both say it is crystal clear that this is legal.  The third is the actual opinion by Justice Department lawyers about what sort of discretionary policies would be legal and, in one instance, what would not.

Congress could legislate away or limit the discretion it has explicitly granted, but won’t because it would still present a problem– Congress is only funding resources to deport about 400,000 a year, and so somehow and someway, discretion is going to be exercised in selecting who those 400,000 might be.  Surely allocation of resources by a plan would be better than essentially saying “Pick up the first 400,000 undocumented folks you get your hands upon.”

There are demagogues out there screaming for impeachment, which is ludicrous given the clear law here.  The more lunatic even scream for criminal prosecution and jail– one tweet seemed to think that the “maximum punishment” could proceed after impeachment, evincing a failure to understand that part of the constitution, too (the term for what happens after impeachment is “removal”– or not– and not punishment).  This is a demographic that seems particularly impervious to evidence-based analysis, but what can we do?

Remember that lawsuit by the Sons of Confederate Veterans?

That memorial lawsuit by the Sons of Confederate Veterans seems to have gone nowhere.  They got issued a summons for a Rule 81 hearing (what were they seeking, a divorce?) for a hearing that was never actually scheduled, and a lawyer appeared for the University, and then…  nothing.  Not even a return on the summons.  The last peep from the would-be heirs to the University Grays and their demand for emergency relief was two months ago tomorrow.

Screen Shot 2014-11-17 at 3.45.43 PM


After all the grief my posts got from the NeoConfederates, certain, as always, of the righteousness of their cause regardless of evidence from the exterior world, it would be kind of funny if this one died aborning.

We All Must Look The Same To Them

Anderson is going to love this one.

This was in the Chittenango, New York may have been in a newspaper’s sports section this morning.  From Shannon Lovejoy on Facebook.

Update:  I wondered about the cut off masthead, which should have been a big read flag.  When someone goof on Facebook tried to foist this off as the New York Times and I knew it was not, I checked.  Chittenango is a “village” in the Syracuse area most famous as the birthplace of L. Frank Baum.  Does not seem to have its own newspaper.  No idea where it is from.  It doesn’t look faked to me– looks like a real newspaper page– but what do I know.  Anyone with any clues where it originated?  I’m still thinking it is real.

Update 2: I am told but cannot confirm that this was in the Syracuse Post-Standard which is a real newspaper.

Third Circuit Judicial Race, Part 1: Judge Byers, the First Amendment, and Due Process of Law


There’s a runoff in the Circuit Court race in the Third Circuit Court district.  That encompasses Tippah (Ripley), Benton (Ashland), Marshall (Holly Springs), Lafayette (Oxford), Union (New Albany), Calhoun (Pittsboro) and Chickasaw (Houston / Okolona) Counties.

The run-off is between Shirley Byers and Kelly Luther.  Luther’s credentials are ones that would be expected for a circuit judge candidate:  He’s been practicing since 1989, worked at the Tupelo law firm of Mitchell, Vogue, Beasley, and Corban until 1991, and thereafter was a city judge in New Albany and then county prosecutor.  For the last 19 years he has been an assistant district attorney, with cases primarily in Tippah County.  While I don’t know him personally, lawyers I respect do, and, based in part on what I’ve learned, I am supporting him for election as circuit judge.

While I am  supporting Kelly Luther as a qualified and excellent candidate for circuit judge, I think it is important that people deciding how to vote in the run-off understand, also, reasons not to vote for his opponent, Shirley Byers.  To put it in simplest terms, she served (and was voted out of office) as a circuit judge in Greenville, where the Mississippi Supreme Court found her misconduct so serious that I cannot imagine how any reasonable lawyer would think that she had the judicial temperament to be a judge.  She used her prior position as a judge to illegally jail a reporter and another person for contempt of court.  Before jailing the reporter, she entered an order that prohibited the reporter (or anyone else) from accurately reporting what occurred in her courtroom.  That order is what is called a “prior restraint on speech,” and violated the core principles of the First Amendment guaranty of Free Speech.  Law students learn about this (I sincerely hope) in the first year of law school.  When the reporter did not respect this illegal order, Judge Byers had the reporter jailed for contempt of court.

Presumably in response to this, and to other conduct that the Mississippi Supreme Court later found was improper, the voters put her out of office after one term.  The Mississippi Supreme Court majority opinion reprimanding her for her conduct strongly implies that, if she had not been voted out, she would have been removed from office, which would have led to her permanent ban from the bench (and prevented her from running in the election that is occurring now).


On her website describing her qualifications, Shirley Byers emphasizes that she is the only candidate with prior judicial experience.  There are a couple of aspects to that assertion that seem… slightly odd.  She states that she served as a judge in Greenville area from 1995-1999– one term.  She emphasizes her deep roots in Marshall County, which make it puzzling why she ran elsewhere, first.  One term as a circuit judge?  And now she is running in a different district?

A quick Google search produces the beginning of an explanation.  The first hit on the search “Shirley Byers judge” turns up a couple of cases, one that got nationwide attention because it involved the jailing of a reporter in violation of the First Amendment and in complete disregard of the Due Process requirements for such a jailing.

That case is Jeffries v. State, 724 So. 2d 897 (Miss. 1998).

Cynthia Jefferies was a reporter at the Delta Democrat Times, and attended an open court manslaughter sentencing.  During the sentencing, the prosecutor brought up parts of the defendant’s juvenile record in an attempt to persuade the court to impose the maximum sentence.  After statements of counsel, Judge Byers asked Jefferies to approach the bench and ordered her to remove references to the juvenile record from her notes and that if they were published in the paper, she would bring back to reporter and find her in contempt.

The next day, the paper published the story, and noted that the defendant’s record included “manufacturing of marijuana, grand larceny, auto burglary, possession of alcohol and others…”  The article also discussed the trial order and its impact on Jefferies’s First Amendment rights.

About a week later, Judge Byers had a warrant for arrest served on Jefferies.  Jefferies arrived at court with her lawyer, and was immediately ordered to jail.   While it is not mentioned in the Jefferies case, a later discipline case against Judge Byers states that Jefferies was refused an appeal bond.

The opinion by Judge Mills for a unanimous court contains a startling number of concessions by the Attorney General in defending Judge Byers’s action in response to Jefferies appeal:
The state concedes that Jeffries’s actions cannot form the basis of the direct contempt charge of which she was convicted. We agree. …
The state also concedes that Jeffries was not afforded the procedural safeguards required for a charge of constructive contempt. Constructive contempt requires a specific charge, notice and a hearing. …
The state also acknowledges that the order of the circuit court is a prior restraint on speech and as such is presumptively invalid.  … . A three-part determination must be applied to overcome the presumption. Id. at 562, 96 S.Ct. 2791. The trial judge made no determinations in an attempt to overcome this presumption.
Finally, the state concedes that such an order must not necessarily be contested with an attack on the order itself but may be contested by disobedience.
In other words, Judge Byers used a charge that she could not have used, failed to follow the due process requirements for such a charge, and did so to enforce an order that was illegal because it was an improper prior restraint on free speech.
I’m somewhat concerned that this relatively clinical description understates how bad this conduct was, and how many fundamental notions of what the law is and how it should be applied were violated.  This was a public hearing, and all the reporter did was report upon it.  A society where that is not protected is not a free society.
The opinion closes by describing Jefferies’ First Amendment rights:
Jeffries chose to publish in violation of the order. In support of Jeffries, an amici curiae brief has been filed representing the position of the following groups: The Reporters Committee for Freedom of the Press, Society of Professional Journalists, American Society of Newspaper Editors, Mississippi Press Association, and Mississippi Association of Broadcasters, Inc. This brief illuminates what the state has already conceded. …
Obedience to the lower court order would have damaged Jeffries’s right to freedom of speech. The restraint might have been effective in keeping Hollingsworth’s juvenile record private; however, members of the family of the victim were also in the audience. There was no duty on their part to keep the matter private and no guarantees have been made that the family has kept the record private. Less extreme measures were certainly available. For instance, the trial judge might have simply reviewed the juvenile record for herself or she may have had counsel brief it for her in writing instead of discussing it in open court. Once she made the matter public, those in attendance, including the press, had a right to further disseminate the information. Therefore, the prior restraint was an invalid interference with Jeffries’s first amendment rights.
The United States Supreme Court has held that a case could conceivably arise where a prior restraint might be valid. Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). However, as the amicus brief notes, when information has been obtained legally from a public proceeding or document, the United States Supreme Court and appellate courts around the country have consistently rejected any restraint on its publication. This is true even when statutes prohibit dissemination of the same information when not publicly available. See The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989)(allowing publication of name of victim of sexual offense); Oklahoma Publ’g Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977)(allowing publication of the lawfully obtained name and picture of a juvenile offender); State v. Coe, 101 Wash.2d 364, 679 P.2d 353, 363 (Wash.1984)(holding prior restraint on publication of tapes of open court proceedings is forbidden by the Washington Constitution); United States v. Salerno, 828 F.2d 958 (2nd Cir.1987)(refusing to create an exception to the right to inspect and copy judicial records for video depositions); Columbia Broadcasting Sys., Inc. v. United States Dist. Court, 729 F.2d 1174 (9th Cir.1984)(holding order restraining CBS from broadcasting “sting” tapes violated first amendment). The Washington Supreme Court stated:

A trial is a public event. What transpires in the court room is public property…. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.

Coe, 679 P.2d at 363 (quoting Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947)).
The Mississippi Constitution of 1890 provides safeguards similar to those provided by the federal constitution:

The freedom of speech and of the press shall be held sacred; and in all prosecutions for libel the truth may be given in evidence, and the jury shall determine the law and the facts under the direction of the court; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted.

Miss Const. art. 3, § 13. In Mississippi courts as well as in federal courts, the protection of free speech is sacred and not to be dismissed lightly by trial judges. The lower court in this case failed to weigh the prior restraint factors set out by the United States Supreme Court.
Without this determination, we are left with a presumption of invalidity. The basis of the publication in question was an open court hearing and the information was lawfully obtained. Less extreme measures could have been implemented by the trial judge. Therefore, the conviction of criminal contempt is reversed and vacated and Ms. Jeffries is discharged.

Daily Journal article on Shirley Byers being sanctioned by the Mississippi Supreme Court

Bobby Harrison has an article in the Daily Journal about the Third Circuit run-off that focuses on Shirley Byers having been reprimanded by the Mississippi Supreme Court for wrongfully jailing a reporter.  The article doesn’t fully spell it out; she was reprimanded for a number of violations of the canons of judicial ethics in that and other cases.  In the jailing of the reporter, she had, first, entered an order prohibiting reports on events that happened in public in her court, which is a prior restraint on speech and therefore a clear violation of the First Amendment, then, second, jailed the reporter for violating the illegal order. I have been preparing a longer post on all of this but am in a situation where I have limited ability to post.  I should be more free to post soon.

After posting, I note that Crispen Garcia linked this in comments.

Small World: Steve Hayne crops up as business associate and friend of Cecil McCrory, indicted in Epps kickback

Emily Le Coz has a good article outlining the career and businesses of former legislator Cecil McCrory, who was indicted for kickbacks to DOC head Christopher Epps this week.  One name that cropped up:  Steve Hayne.  Yes, the same Steve Hayne who for years was the go-to pathologist for law enforcement seeking…  uh… creative testimony in criminal cases.

Results in the Third Circuit Judge Race

Benton Calhoun Chickasaw Lafayette Marshall Tippah Union
Byers 774 1263 1986 3848 3567 1082 1566
Jones 496 327 182 1711 2500 603 595
Luther 506 1494 1493 2771 881 2598 3060
1776 3084 3661 8330 6948 4283 5221
Total percentage
Byers 14086 42.3%
Jones 6414 19.3%
Luther 12803 38.4%
Byers 2388
Jones 1238
Luther 1468

In Lafayette County’s rural boxes, Byers was ahead in Abbeville, College Hill, Burgess, Taylor 3, and Union West.  Luther was ahead in Yocona, Lafayette Springs, Philadelphia, Anchor/Taylor, Harmontown, Airport Grocery, Tula, and Paris.

Update: Corrected # as noted in comments.

Here is the indictment unsealed against Christopher Epps

Here it is.  Thanks to John Pittman Hey for linking it.

Miss. DOC commissioner Chris Epps resigns– and prison call phone scams are connected…

One of the more repulsive aspects of representing folks who are held in state jails is dealing with the private telephone services that contract with those jails. Family, lawyers, and anyone trying to communicate with inmates find themselves dealing with companies that just seem to be running a scam– rates several orders of magnitude higher than any others, bizarre schemes that require pre-purchased time with accounts that require payments for call, but that expire (with all kinds of charges– e.g. a monthly charge because you haven’t made a call lately).

Well, there might be more indications than my gut that these jail telephone schemes are a scam. One of today’s headlines involved the sudden resignation of Mississippi DOC head Chris Eppes, and, at the same time, the seizure of his house, beach house, and two Benzes (really great asset list for a public servant, dontcha think?). At the same time, the school board president in Rankin County resigned, with reports that he had companies doing business with the Department of Corrections. Kingfish reports a partial explanation– and it is the phone scam:

Rankin County School Board President Cecil McCrory resigned his position yesterday. Mr. McCrory owns several companies that provide telephone and commissary services to prisons such as G T Enterprises of Ms, Correctional Communications of Ms, and Mississippi Correctional Communications. A 2011 PEER report criticized MDOC for issuing a “no-bid” contract to G T in 2007 even though it was legal. The report stated G T was the largest provider of canteen goods for MDOC. MDOC awarded a similar contract to Keefe Commissary Network, LLC in 2008.

A chart about voters and age from TPM

More here at TalkingPointsMemo.