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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Does today’s MissSupCt sentencing opinion preview part of McDaniel opinion?

In the oral argument for the McDaniel senate election challenge, Justice Coleman’s questions were all directed to a extraordinarily narrow view of appropriate statutory construction, a view that seemed to go to the point of refusing to make sense out of what the legislature had done and applying a restrictive and extremely literal approach. His questions also suggested that he viewed this as essentially constitutionally dictated.

A sentencing opinion today in the Mississippi Supreme Court raises some of these issues.

There is a old and familiar rule in criminal sentencing that, where a statute has two sentencing options for the jury– a life sentence imposed by the jury or a term of greater than x imposed by the judge– and the jury rejects a life sentence, the judge is limited to some extent by the life expectancy of the defendant in the length of sentence, because of the jury’s rejection of the life sentence.

Justice Coleman is having none of it, because he says that it is something the court has written into the statute. Justice King responds that if all statutes were unambiguous and spoke clearly, there would be no need for judges.

In rejecting the rule, Justice Coleman specifically refuses to accept the concept that, where a later legislature readopts the statute without speaking to the construction, the legislature was presumed to have accepted it. He also gives the back of his hand to stare decisis.

Seems to me to speak pretty clearly what is on his mind about issues arising in the McDaniel challenge. Of course that is just one vote of six or possibly seven who are sitting on the case.

Lafayette County Bar to sponsor judicial candidate forum October 21st

The Lafayette County Bar will hold a judicial candidate forum on October 21, 2014 at Boure starting at 4PM. All judicial candidates on the ballot in Lafayette County are invited, which means three candidates for a circuit post, three for a chancery post, and two for a second chancery post. Judge Jimmy Maxwell of the Court of Appeals will moderate. The LCBA is going to seek an hour of CLE credit for the forum, and is charging $15 to attend, to cover appetizers and the CLE credit. There will be a cash bar.

They are inviting questions in advance and asking they be designated as relating to chancery or circuit practice. If you want to ask a question, they are asking they be submitted to Samantha Weathersby, the local bar treasurer, by 5PM on October 20, 2014. I will provide her email on request and the form for registering; just drop me an email or provide your email in comments.

There is going to be a party– Friday, Oct 17th at Freeland law office

We are hosting a party that is a tribute to Democratic House leader Bobby Moak.  There will be great music — a soul music with Effie Bert and friends– food, and drink. Here is the invite. You folks ought to come.

MOAK_OleMiss-TN_Party_2014_evite

Brian Schmidt took his Nobel Prize to show his grandma…

In a Scientific American account of how the Nobel Prize changes your life, Brian Schmidt describes taking the prize to show his grandmother…

“When I won this, my grandma, who lives in Fargo, North Dakota, wanted to see it. I was coming around so I decided I’d bring my Nobel Prize. You would think that carrying around a Nobel Prize would be uneventful, and it was uneventful, until I tried to leave Fargo with it, and went through the X-ray machine. I could see they were puzzled. It was in my laptop bag. It’s made of gold, so it absorbs all the X-rays—it’s completely black. And they had never seen anything completely black.

“They’re like, ‘Sir, there’s something in your bag.’
I said, ‘Yes, I think it’s this box.’
They said, ‘What’s in the box?’
I said, ‘a large gold medal,’ as one does.
So they opened it up and they said, ‘What’s it made out of?’
I said, ‘gold.’
And they’re like, ‘Uhhhh. Who gave this to you?’
‘The King of Sweden.’
‘Why did he give this to you?’
‘Because I helped discover the expansion rate of the universe was accelerating.’
At which point, they were beginning to lose their sense of humor. I explained to them it was a Nobel Prize, and their main question was, ‘Why were you in Fargo?’”

h/t Radley Balko on Twitter.

Gone Gurley

With apologies to Cari Gervin, here is one from my friend Dwight New, Auburn fan/graphic artist.

How many ways can one say they are wrong: Judge Dennis unmistakably and clearly dissents

The Fifth Circuit denied en banc review in the Texas abortion restriction case.  As Anderson points out, Judge Dennis dissents eloquently and at length.  He also finds many ways to call the panel opinion wrong.  Just in the first eight (of 62) pages, there are these snippets:

…the panel opinion flouts the Supreme Court’s decision…

The panel’s assertion that it applies Casey is false…

…the panel’s sham undue burden test…

…the panel’s perversion of the undue burden standard…

This court’s abject deference to state authority annihilates any “real substance” to the vital individual constitutional interest at stake:

The Abbott II panel decision conflicts with the Supreme Court’s decision in Casey in various ways.

Second, the panel misinterpreted and misapplied Casey’s “large fraction” test…

…the panel opinion is based on both erroneous legal precepts and improper de novo appellate court factual findings …

Nate Silver is starting to like Ole Miss’s chances.

This may be an odd pill for you Red State folks to swallow, but Nate Silver is starting to like Ole Miss’s chances of making the college football championship series.

You heard that right. Apparently, if you use “being in the top four at the end” as a stand in for “making the championship series,” it is week 5 standings that starts to meaningfully predict final standings.   Here’s what he said:

Up until Week 5 of the college football season, the schools on the periphery of the AP’s Top 4 typically have a slightly lower probability of finishing the year among the (now-coveted) top quartet of teams than those currently occupying those slots. Starting in Week 6 — and accelerating in Weeks 7-9, the current stage of the 2014 campaign — the teams in the top four slots begin to pull away from the rest of the pack, increasing their probability of ending the regular season among the “Final Four.”

That’s good news for Florida State, Auburn, Mississippi State, and Ole Miss, each of which found themselves sitting in the AP’s Top 4 after the dust cleared on this past weekend’s wild spate of upsets. Teams that survive midseason aren’t completely in the clear — historically, there’s still about a two-in-five chance that one of the teams in the existing Top 4 falls out after Week 9 — but teams in that position are significantly more assured of being “in” now than they were just two weeks ago.

After week 5, it looks according to his graph, a team in the top four is running almost a 40% shot of being in the top four at the end.  After two more wins, it becomes an almost 50% shot.

Well.

Let’s beat Texas A&M and take this a step at a time.

Be Careful Our There this Weekend in Oxford

An email from the mayor is circulating in the legal community, describing a coordinating meeting with law enforcement getting hyper-vigilant.  It concludes: “We will be EXCEPTIONALLY diligent in enforcing alcohol odinances and will have ZERO tolerance of people instigating problems LET EVERYONE KNOW that it will be easy to get arrested in Oxford this weekend.”

Oral Argument this morning in McDaniel vs. Cochran

It will be broadcast at 10:00 AM by the Court and can be found here.

Notes on the Confederate Memorial Lawsuit: Yes, the Mississippi standing cases are a mess

In a prior posts about standing, I cited a number of Mississippi cases that pretty clearly hold that, while Mississippi has more forgiving rules for standing than the federal cases, there is still a requirement that the plaintiff have a claim of individual injury. In comments, John Pittman Hey pointed to some cases that come very close to saying that just about anyone has standing to assert claims for state actors violating state laws. I’m going to discuss this line of cases below.

For those who don’t want to wade through all of this, here’s my conclusion: This line of cases start with a couple of opinions by Justice McRae, that, at least in the language used, really do take an extremely broad view of standing that would allow virtually anyone to bring suit for violation of the law. The actual facts of the case don’t go quite that far; they involve legislators suing about alleged state law violations mostly involving their interests as legislators. Another important qualification is that there were a couple of later cases where the court did not follow these legislator standing cases, holding there was no standing for certain claims by non-legislators, over dissents by Justice McRae.  The later cases did not attempt to distinguish the legislator-standing cases, just citing and quoting them and then holding a particular party did not have standing in spite of whatever the language in the legislator standing cases might suggest.  No analysis, just a result.

These cases and the more usual ones make the standing law in Mississippi so disparate that I think standing here is a tossup– if the court wants to reach the merits, it can, and if it doesn’t want to, it can go off on standing. The one factor that may tilt them away from a tossup is that the opinions were by Justice McCrae and the Court has pulled away from them in holdings without doing so in an analytical way.

That leaves a trial judge in a spot, with no principled way of resolving this particular issue. It would be great if the Supreme Court faced this inconsistency and resolved it, but perhaps some judges like rules that don’t so much resolve cases as provide rationales for whichever way they wish to go. Personally, my instincts are that this should be resolved leaning toward the conservative result of saying that there is a requirement a plaintiff show that they, personally, had an injury or interest particular to them before they could file suit.  I will explain why if asked.

There is more detail about this than you might want below the fold.

Should I add a category “Where Mississippi caselaw is a mess” for general usage?

Continue reading Notes on the Confederate Memorial Lawsuit: Yes, the Mississippi standing cases are a mess