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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Today’s Facebook bulletins from McDaniel suggest that he’s not aware it’s over

He posted this on Facebook today:

“Rise up, warriors, take your stand at one another’s sides, our feet set wide and rooted like oaks in the ground.”

– Tyrtaeus of Sparta

More about Tryrtaeus here.  He did not present ideals that involved knowing when to fold ‘em.  One of his (well, his if he was a real person) big themes also seems a little off here:  Support of the state (Spartan) authorities in their struggles.

This, also posted on Facebook, also suggests the fight, such as it is, will go on:

“This is the lesson: never give in, never give in, never, never, never, never—in nothing, great or small, large or petty—never give in except to convictions of honor and good sense. Never yield to force; never yield to the apparently overwhelming might of the enemy.”

– Winston Churchill

Whoever is doing the Facebook feed also posted this:

“…Let us use this court decision to motivate us, not to sadden us. Today we must begin an important transition, to return our party to its conservative principles. It was the Party of Reagan. It can be again. 

This party belongs to us and it’s time to reclaim it for true conservatives.

Let our battle cry be: WE ARE ALL McDANIEL REPUBLICANS NOW!”

#remembermississippi

I don’t see how he can post this stuff and not appeal.  Other thoughts?

Joyce Freeland’s reaction:  His staff is saying, “Drink the Kool-aid” (well, Flavor-Aid, as the Kool-Aid people would insistently remind you).

Funny. Most of McDaniel real objections were technicalities about absentee votes, but he’s disappointed he lost on a technicality

Alternate title:  Chris McDaniel acknowledges he does not always understand.  I hated picking between these.

Here is the statement from Chris McDaniel about the dismissal of his case, from his Facebook page:

I am very disappointed to hear Judge McGehee granted Senator Cochran’s Motion to Dismiss on a technical filing issue, instead of hearing the case on its merits. 

Nevertheless, I trust that God has a plan. We may not always understand, but all will be revealed in time. Although we do not yet have our justice, my prayer is that God’s will be done. I likewise pray for all involved (including those who wronged us). 

In the coming days, I will keep you informed on our options. 

Standing and fighting for you and our principles has been the honor of my life. I am grateful for your support and proud to call you my friends.

 

Ole Miss football half-time observation.

I’m guessing that no team in football history ever had the same number of false start penalties they had in scored points.  7 and 7! Hotty Toddy.

Update: I know this is hyperbole with numbers like 3 and 3 possible.  But 7 and 7 at the half was pretty bizarre.

A hearing on the Cochran motion to dismiss, and the Cochran reply brief

Following #mssen on Twitter produces a lot of live-tweeting from the hearing on motions in the Senate election contest.  The judge gets the quote of the day; with McDaniel’s lawyer arguing that the secretary of state had opined that there was no deadline for filing a state election contest, the Court asked:

McGehee: point me to that authority that says the court should do what Mr. Hosemann thinks, his opinion

The judge stated that he was going to wait to rule on the subpoenas because it would be unfair to do so without hearing from the circuit clerks (someone on Twitter noted the unaccountable absence of “Circuit Clerks for McDaniel” bumper stickers).  He also said that he will try to get an opinion deciding the motion to dismiss done by tomorrow.

Meanwhile, YallPolitics has the Cochran reply brief on their motion to dismiss.  It basically is designed to lock down the arguments already made, and really doesn’t leave much that McDaniel said unanswered.

McDaniel’s subpoenas as a Potemkin Village: More evidence that the McDaniel Election Challenge is Just Pretend

A Potemkin Village is a pretend peasant village built for the entertainment of royalty.  It is pretty clear to me that McDaniel’s election challenge is about… entertaining isn’t the right word.  Pleasing.  Pleasing his constituancy.  He’s going to say he tried everything and got beat on unfair injustice and technicalities.  Send money and prepare to continue the good fight.

The subpoenas of the circuit clerks are all that and more.

Rule 45 of the Mississippi Rules of Civil Procedure governs supboenas.  In the last day or so, the McDaniel campaign has faxed subpoenas to 46 circuit clerks demanding they bring documents to Jones County on two or three days notice, as described in my prior post.  I’m concluding that the subpoenas were faxed because that’s how the Circuit Clerk of Lafayette County got her subpoena.  Here’s what Rule 45 says about subpoenas:

(b) Place of Examination. A resident of the State of Mississippi may be required to attend a deposition, production or inspection only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the court.

Well, I think we can all assume that, for three subpoenas reported on the internet (Hinds, Lafayette, and Oktibeha), the clerk under subpoana does not live in Jones County, where they were required to deliver the documents.  There has been no order reported stating an “other convenient place,” and, frankly, I’d be shocked if the court entered such an order.  Presumably, an effort to obtain such an order would be met by Cochran’s lawyers with arguments noted in my prior post.

(c) (1) A subpoena may be served by a sheriff, or by his deputy, or by any other person who is not a party and is not less than 18 years of age, and his return endorsed thereon shall be prima facie proof of service, or the person served may acknowledge service in writing on the subpoena. Service of the subpoena shall be executed upon the witness personally.

To be blunt, personal service means you hand it to the person.  And someone has to swear that was done.  Sending in a fax:  Not personal service.

 [T]he party causing the subpoena to issue shall tender to a non-party witness at the time of service the fee for one day’s attendance plus mileage allowed by law.

I’m not sure how you fax a check for the witness fee.  I’ve always handed it over with the subpoena (well, had my process server hand it over much of the time, and sometimes handed it myself).  Maybe I’m not creative enough to see other ways of doing it.

By this point, I think it could be clear that someone receiving a document subpoena to go to a county some miles distant, with no personal service and no witness fee, can pretty much say, “Oh, that’s not a subpoena, it’s one of those spam faxes, like the ones offering us a Bahamas cruise on a discount.  We don’t have to do anything about that,” and toss it in the circular file.

(2) Proof of service shall be made by filing with the clerk of the court from which the subpoena was issued a statement, certified by the person who made the service, setting forth the date and manner of service, the county in which it was served, the names of the persons served, and the name, address and telephone number of the person making the service.

Right.

(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or to permit inspection of premises need not appear in person at the place of production or inspection unless commanded by the subpoena to appear for deposition, hearing or trial. Unless for good cause shown the court shortens the time, a subpoena for production or inspection shall allow not less than ten days for the person upon whom it is served to comply with the subpoena.

I think we would have all heard reports of the throw-down that would have occurred if there was an attempt by McDaniel to shorten the ten day period.  To two days.

(f) Sanctions. On motion of a party or of the person upon whom a subpoena for the production of books, papers, documents, or tangible things is served and upon a showing that the subpoena power is being exercised in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the party or the person upon whom the subpoena is served, the court in which the action is pending shall order that the subpoena be quashed and may enter such further orders as justice may require to curb abuses of the powers granted under this rule. To this end, the court may impose an appropriate sanction.

I’m thinking sanctions here.

Here’s another statute for the McDaniel legal team

Miss. Code Ann. § 21-15-911 requires that after votes are counted, the voting materials are to be resealed and locked and turned over to the circuit clerk:

…the box shall forthwith [be] resealed and delivered to the circuit clerk, who shall safely keep and secure the same against any tampering therewith.  At any time within twelve (12) days after the [vote counting and tabulating] … any candidate or his representative…. shall have the right of full examination of said box and its contents upon three days notice… which examination shall be conducted in the precense of the circuit clerk or his deputy who shall be charged with the duty to see that none of the contents of the box are removed from the presence of the clerk or in any way tampered with.  Upon completion of said examination the box shall be sealed with all its contents as theretofore.  And if any contest or complaint before the court shall arise over said box, it shall be kept intact and sealed until the court hearing…

In election contests where I have been involved, I have understood that the opportunity for campaigns to look at the boxes is during the period provided for that by statute.  I have seen copying machines moved to the courtroom for that process.

That is why I was surprised when I heard that the folks McDaniel had in Lafayette County didn’t make any copies when examining the boxes here.

I am even more surprised to read in the Clarion Ledger that the McDaniel campaign has subpoened materials locked in the ballot boxes from forty-six counties.  The subpoenas were issued on Monday, August 24th, faxed (at least to Lafayette County) on August 25th, and demand the documents be delivered in Jones County on August 29th.   That seems a pretty unreasonable response time for this sort of demand.

Further, I have no doubt that the statute mandatorily requires that after the 12 day examination period, those boxes be sealed until brought to court for the actual hearing (on September 16th), and would read it to also require that they be in the custody of the circuit clerk until then.  According to the Clarion Ledger, the Circuit Clerk of Hinds County is actually contemplating breaking the seals:

“There is no way we can go through 118 precinct boxes in two days to check to see if they contain absentee ballots,” Dunn said.

The subpoena seeks a lot more than absentee ballots.  The Circuit Clerk of Lafayette County has taken the more judicious step of seeking the advice of the county’s attorney.

You can view the Lafayette County subpoena at the Clarion Ledger link.

 

Some reading comprehension problems with the McDaniel lawyers, who also forgot to read the pocket part

Update: A second interpretation of the McDaniel brief has emerged:  That the lawyer didn’t screw up, he’s just being dishonest with the court about the law.  See comments.

There’s a statutory timetable you need to understand here.

1.  Under Miss Code Ann. § 23-15-921, for county elections, a challenge before the election commission must be filed within 20 days of the election.

2. Under Miss. Code Ann. § 23-15-923, for state-wide elections, there is no provision for a 20 day period, but this language was construed in a fifties case to be subject to the 20 day requirement of Miss. Code § 23-15-921.

3. The statutory provisions just discussed, while they have been re-codified twice, have the exact same language as the statute construed in the 1950s case.

4.  Under Miss. Code Ann. § 23-15-927, prior to 2012, a court challenge must follow the election commission challenge “forthwith.”  If you look in the code book, you learn that in 2012, that was changed but the book says that it was awaiting preclearance under the Voting Rights Act.  I am going to assume (possibly in error) that McDaniel and his lawyers are aware that state statutes no longer await preclearance because their friends on the United States Supreme Court abolished preclearance, so the new statute controls.  If they aren’t that well-informed, they would be well served to look in the pocket part of the code book and learn that the new statute is in effect.  And what does it say?  It says that suit must be filed within ten days of when the executive committee complaint was filed.

For lay readers (and possibly for legal researchers who have only used computers?*), it is at absolute best a rookie mistake to forget to read the pocket part.

Yet that is a premise of the McDaniel response to the Cochran motion to dismiss.

Here is the gist of its argument, with my comments, in italics.

1. The election laws were recodified by the legislature after the fifties case was decided and the statutes it construes were repealed.

Yet the language of the statutes before and after codification was identical.

2. The second statute does not have a deadline in it, which makes it more like another statute, Miss. Code Ann. § 23-15-927, which says that challenges under that code provision must be filed “forthwith.”

Well, the “other statute” talks about the length of time required to file in court, for all kinds of contests, and does not speak to the time deadline for filing in the executive comittee, unlike the first two statutes.  Furthermore, that statute has actually been amended (!!!!) and now has a deadline of ten days, replacing the “forthwith” requirement.

3.  To construe the statutes the way Cochran wishes would be to suppose the legislature did something capricious, because the time lines don’t add up:  Under the statutes, a candidate can’t begin examining the ballot boxes for ten days, then has twelve days to examine the boxes, which means that his period to file the challenge runs out before his period to examine the boxes ends.

That’s true, and it means that he better finish his complaint and probably the examination of the boxes a couple of days prior to that 12 day period or he’s S.O.L.  Also, insert joke about McDaniel having chaired the state senate elections committee through the term of legislature that passed the amendment and two more terms since then.

Here, thanks to John Pittman Hey and his website, is the response.

*That is intended as a joke.

Yes, it does appear McDaniel did not file his complaint within the required time

Update (x2): Didn’t someone tell me that McDaniel was a lawyer?  The Clarion-Ledger’s Geoff Pender, who I just realized got there ahead of me on what I’ve written below, quotes the would-be senator on his delay in filing:  “‘Justice has no timetable,’ McDaniel said numerous times when questioned why it was taking so long to file his challenge of the June 24 GOP runoff for U.S. Senate.”  Does this mean that McDaniel-the-lawyer doesn’t have to bother with calendaring deadlines?

There’s more from Pender’s piece from Saturday below, including speculation about the judge.

The complaint with the state executive committee was filed on August 4, 2014.  As that complaint notes, primary had occurred on June 24, 2014.

That looks to me to be about forty days there.

There are two statutes governing primary challenges.  The one for county offices states that a challenging candidate “may, within twenty (20) days after the primary election, file a petition with the secretary, or any member of the county executive committee in the county in which the election was held, setting forth the grounds upon which the primary election is contested….”  Miss. Code. Ann. § 23-15-921.  The statute for state office challenges provides a candidate challenge “upon complaint filed with the Chairman of the State Executive Committee, by petition, reciting the grounds upon which the election is contested.”   Miss. Code. Ann. § 23-15-923.  No time deadline there.  However, the Mississippi Supreme Court has construed the second statute to import the time deadline from the first, because they were both created in the same legislation.  Kellum v. Johnson, 115 So.2d 147 (Miss. 1959).  Kellum involved a race for district attorney, a multi-county race.  Essentially, the Supreme Court held that the Mississippi legislature would not have been so stupid to have created a time limitation for one challenge and not the other (“In construing statutes, the courts should not convict the Legislature of unaccountable capriciousness.”).   While the case may somewhat overestimate the reliability of our legislature, its holding is pretty clear:  McDaniel had to file within twenty days, which he did not do.

Kellum also holds that the deadline is not a statute of limitations, but rather a condition precedent for filing suit (and thus, like other jurisdictional matters, cannot be waived).

As one would expect, Cochran’s lawyers cite both statutes and Kellum in their answer to the McDaniel complaint.  I’m about ready to conclude that this fun won’t last a lot longer.  Any contrary opinions?

As an aside, for those of you keeping track of cases for odd-to-find propositions, the language in Kellum about presuming legislators are not dummies (well, capricious) could come in handy some day.

Update:

Pender says that McDaniel’s lawyers are claiming that their litigation over access to voting records “should have reset the clock on any deadlines.”  What litigation?  In any event, that make no sense.  Pender then goes on to speculate about what the judge might do:

It’s conceivable Judge Hollis McGehee this week could dismiss Chris McDaniel v. Thad Cochran on the timeliness motion.

But given the realpolitik of the case, I doubt that happens. Imagine the uproar from the tea party faithful if McDaniel isn’t given his day, or in this case 10 days, in court.

Judge McGehee, bless his heart, has perhaps the most unenviable task handed to a Mississippi jurist in a generation. I think I would have suddenly remembered some oral surgery I had planned for September if I were a judge and the chief justice had called.

McGehee is known for careful and fair deliberation. I believe it’s more likely the judge will reserve ruling on the timeliness motion until after hearing the rest of the case.

I do not know the judge, but I know this:  If he goes ahead and tries the case, it’s going to be a logistical nightmare, particularly if he has to yank every circuit clerk in the state (or many of them) into the proceeding.  To the true-believers, a procedural default is going to look the same whether done before or after a trial.  Curious what others think.

Update 2:

I just read the Cochran brief on their motion to dismiss.  It’s a fast ball down the middle, and I expect a really silly swing behind the pitch from the McDaniel side.  It gives McDaniel one benefit of the doubt (counting the 20 days from the certification of the election and not the primary itself, although the statute says “within twenty (20) days after the primary election” which is why I counted from the election.  McDaniel comes up too late either way).  The brief also adds the argument that, because the legislature has tinkered with the statutes and reenacted the both of them without changing the provisions interpreted in Kellum, the legislature has appeared to accept the Kellum intepretation.

Inquiring minds: When the Supreme Court 4-4 affirms, do they affirm the COA or the trial court?

This quetion arose indirectly because a regular reader was thinking about the topic and a recent Supreme Court case.

Answer, at least in Mississippi:  The court of appeal:

¶ 8. Valley Bank argues that when this Court is evenly divided, the order of the trial court must be affirmed, despite the Court of Appeals having initially reviewed the appeal and found for reversal and remand of the trial court’s order. However, we have made it clear that when this Court is divided evenly, we will affirm the order which we are called upon to review. Rockett Steel Works v. McIntyre, 15 So.2d 624, 624-25 (Miss.1943); Jacobs v. Bank of Winona, 1 So.2d 235, 235-36 (Miss.1941); Robertson v. Miss. Valley Co., 120 Miss. 159, 162, 81 So. 799, 801 (1919); Brewer v. Crum, 111 Miss. 871, 871, 72 So. 700, 700-01 (1916). Even the early opinions from the United States Supreme Court regarding the affirmance of a lower court’s order do not speak to the affirmation of the per se “trial court,” but of the lower court’s order which it is reviewing upon appeal. Robertson, 81 So. at 801-07 (Stevens, J., dissenting) (citing Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 54 L.Ed. 1001 (1910); Hartman v. Greenhow, 102 U.S. (12 Otto) 672, 26 L.Ed. 271 (1880); Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 19 L.Ed. 154 (1868)); Etting v. Bank of United States, 24 U.S. (11 Wheat.) 59, 6 L.Ed. 419 (1826).

¶ 9. When this Court is evenly divided, it must affirm the judgment of the court from which the appeal is taken, even if that judgment is from the Court of Appeals. There is a long standing history in this regard. Other states have historically done the same. In Tate v. Christy, 339 N.C. 731, 454 S.E.2d 242 (1995), the North Carolina Supreme Court held that the decision of the Court of Appeals would be left undisturbed where the participating members of the Supreme Court were evenly divided as to affirmance or reversal. In Pierce v. Pierce, 244 Kan. 246, 767 P.2d 292 (1989), the Kansas Court of Appeals affirmed the trial court’s holding. On review by the Kansas Supreme Court, the justices were evenly divided; therefore, the court affirmed the Court of Appeals, which had affirmed the district court judgment. In Getschow v. Commonwealth Edison Co., 99 Ill.2d 528, 77 Ill.Dec. 83, 459 N.E.2d 1332 (1984), the Illinois Supreme Court ruled that where it was evenly divided on a portion of the judgment, the Appellate Court’s judgment would stand. In Christensen v. Epley, 287 Or. 539, 601 P.2d 1216 (1979), the Oregon Supreme Court was evenly divided on one issue of the case, which had been heard by the Court of Appeals; therefore, the decision by the Court of Appeals on that one issue was affirmed. In Benson v. First Trust & Savings Bank, 105 Fla. 135, 145 So. 182 (1932), the justices of the Florida Supreme Court on second rehearing were equally divided; therefore, the Supreme Court’s judgment on the first rehearing was sustained.
¶ 10. We hold that when this Court is evenly divided, the order or judgment of the court from which the appeal is taken must be affirmed.
Wise v. Valley Bank, 861 So. 2d 1029, 1032-33 (Miss. 2003).
This is apparently how it works in the United States Supreme Court.  In Omega v. Costco Wholesalethe Ninth Circuit reversed a trial court ruling in a copyright infringement case.  The United States Supreme Court granted certiorari, and, in a decision where Justice Kagan did not participate, divided equally.  The result was a 4-4 affirmance leaving the Ninth Circuit decision standing (at least based on what I’ve read).
Updated as noted in comments.

 

The Garlic Lady’s Garlic is back

garlic

 

One of the best things about MidTown Farmer’s Market several years ago was the garlic being raised by Katherine Daigle, who called her stand the Garlic Lady.  She had several types, and really understood the process, including meticulously drying the garlic after harvest.  I would buy enough from her to last till Christmas, and, because she’d been so careful with it, all I had to do was hang it in a dry place and it would keep until I used it up.   She lives in Taylor, though, and when a farmer’s market opened out there, she moved her stand.  She’d bring me garlic, though I fell out of touch.  This year, she’s back (and beginning to sell a limited amount of shallots).

Using her garlic really drives home the terribleness of grocery store garlic– essentially all Chinese–  that dominates the supermakrets now.