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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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

Notes on the Confederate Memorial Lawsuit: What the statute says

Miss. Code. Ann. § 55-15-81 is the statute the Sons of Confederate Veterans relies upon. Relating to “Any Revolutionary War, War of 1812, Mexican-American War, War Between the States, Spanish-American War, World War I, World War II, Korean War, Vietnam War, Persian Gulf War, War in Iraq or Native American War’s”, the statute provides:

(1) None of the following items, structures or areas may be relocated, removed, disturbed, altered, renamed or rededicated: …statues, monuments, memorials or nameplates (plaques), which have been erected on public property of the state or any of its political subdivisions, … such as local, municipal or county owned public areas, and any statues, monuments, memorials, nameplates (plaques), schools, streets, bridges, buildings, parks preserves, reserves or other public items, structure… which have been dedicated in memory of, or named for, any historical military figure, historical military event, military organization or military unit.

So. A series of “items” “on public property” may not be “removed… renamed.”  Those items include “nameplates (plaques)” and “streets…”

That clearly suggest that nameplates and streets cannot be removed or renamed when on public property.  And nameplates or plaques can’t be “altered.”

I cannot imagine that a court would hold that the addition of explanatory plaques would be barred by this statute, but I assume that is what the SCV will argue.

What can’t be removed, renamed, or altered? Those “which have been dedicated to the memory of or named for, any historical military figure, historical military event, military organization or military unit.”  Hmmm.  The Confederate statute is certainly “dedicated to the memory of… any military organization or military unit”– it’s all about the University Grays, isn’t it?  But what about Confederate Drive?  Not named after a figure or event, certainly, and not really a military organization or unit.  Really just indicated it was (and is no longer) the road to the cemetery.  Is naming the road “Confederate” by itself naming it for a military organization or unit?

The statute then preserves the right of the pubic body to maintain, preserve, or restore the items, and to move them to a “more suitable location.”

(2) No person may prevent the public body responsible for maintaining any of the items, structures or areas described above from taking proper measures and exercising proper means for the protection, preservation, care, repair or restoration of those items, structures or areas. The governing body may move the memorial to a more suitable location if it is determined that the location is more appropriate to displaying the monument.

The first thing that jumps out at me is the first four words:  “No person may prevent….”  This clearly bars anyone from interfering with some actions a public body may take.  Does it imply a right of action relating to other actions apparently covered by the first section? (I don’t think so but am open to arguments to the contrary).  But the balance of the statute does make clear that a public body can make a finding and move the “memorial” to “a more suitable location” if it is “more appropriate…”  That would certainly allow the University to move the Confederate statute if it made an appropriate finding.  But I don’t think they have any intention of doing that.

Where does that leave the claims?  The statute seems to clearly prohibit the renaming of a street that is a memorial to a military unit, but may not cover something as generic as “Confederate” because that is not a “military organization or unit.”  The statute would not allow altering the monument itself (but does not seem to prohibit adding explanatory plaques).  Section (2) may suggest by implication a private right of action to section (1), by prohibiting anyone contesting some actions that might seem barred under section (1) but not otherwise, but I think not.  The suggestion is far from explicit.

For those who want to read the statute straight through, the full text is blow the fold.

Continue reading Notes on the Confederate Memorial Lawsuit: What the statute says

For those curious how ESPN Gameday is supposed to work in the Grove this weekend…

If “work” is the right word.  This will be a carnival, without doubt.

Notes on the Confederate Memorial lawsuit: Sauce for the goose, sauce for the gander

I’ve pulled another standing case, which speaks in important ways to both the standing issue and, as to one claim, the merits issue.  It’s a pretty funny case for the SCV to have to explain away.

The overriding question is whether the SCV has any particularized injury on which to base their claim.  When they say they don’t want the sign changed, can they show they were injured by the change?  The secondary point is a First Amendment one:  To enjoin the University from placing up plaques, which is part of the relief sought, would clearly be a prior restraint against speech.  Reading a particular case has me wondering whether an injunction preventing the University from changing a sign is also a prior restraint against speech.  It sounds like “yes” to me.

In the case, the NAACP sued the Sons of Confederate Veterans, the Governor, and various state actors, asking to enjoin the purchase or use of the state flag because of its use of the stars and bars within it.  The Mississippi Supreme Court held:

Although the NAACP contends that the flying of the State Flag violates their constitutional rights to free speech and expression, due process, and equal protection as guaranteed by the Mississippi Constitution, these arguments fail to satisfy the threshold inquiry of constitutional injury. In Daniels, this Court determined that the flying of a Confederate Battle Flag by a county board of supervisors does not violate any constitutionally protected rights, essentially finding that there was no injury.
While the State Flag is not simply a Confederate Battle Flag, the part of the State Flag found objectionable by the NAACP and others is the depiction of such Confederate flag in the State Flag’s canton corner. Furthermore, the free speech, the due process and the equal protection arguments espoused by the NAACP would logically apply to the state-supported flying of a Confederate Battle Flag. Thus, the Daniels decision is controlling precedent. Neither the flying of the State Flag, nor the flag itself, causes any constitutionally recognizable injury. In this case, the NAACP failed, as did the plaintiffs in Daniels, to offer any proof that the flying of the State Flag deprives any citizen of a constitutionally protected right.

Mississippi Div. of United Sons of Confederate Veterans v. Mississippi State Conference of NAACP Branches, 774 So. 2d 388, 390 (Miss. 2000).  Aficionados of Supreme Court dicta will recall that the Court went on to opine that, in passing the Code of 1906, which did not carry forward the adoption of a state flag, meant that there was no official state flag.  Not our problem, concluded the court, the legislature can fix it (or not), and, meanwhile, neither the NAACP nor anyone else has standing to complain about the flying of the unofficial state flag.

Notes on the Confederate memorial lawsuit: The Sons do not appear to have standing to sue

Here, the Sons of Confederate Veterans are filing suit asserting the rights of its members.  They allege a couple of injuries.  One is that some members are descended from or relatives of people buried in the cemetery and have a right of access to it.  There is absolutely no evidence that the University has any intention to do anything about that, but they’ve alleged it.  Another is some sort of right to enjoin the University from placing explanatory plaques near the Confederate statute.  That claim is absurd, not the least because it is literally an attempt to enjoin the University from speaking.  Finally, they claim a right to prevent the University from renaming Confederate Loop to Confederate Drive. One question is whether the Sons of Confederate Veterans have standing.  That is, can they show a particularized injury to their organization such that they have a right to bring suit? The first thing to brush out of the way is the concept of associational standing.  The Mississippi cases are pretty clear that, if a member of an association has standing, the association itself, even if unincorporated, has standing to bring suit.   One case on this point is Mississippi Manufactured Hous. Ass’n v. Bd. of Aldermen of City of Canton, 870 So. 2d 1189, 1193-94 (Miss. 2004).  The SCV complaint has allegations that appear designed to clear this hurdle, alleging its members connections to people buried in the Confederate cemetery, for instance.  I don’t think there’s a real issue about associational standing.  The real question is whether they can show that one or more of their individual members might have standing.

For individual standing, the cases are a little contradictory.  Historically, the Court has taken a very broad approach, allowing even taxpayer standing.  Thus, you get statements that “‘Mississippi’s standing requirements are quite liberal.” Burgess, 814 So.2d at 152 (¶ 13).”  Hudson v. Jones Cnty. Bd. of Sup’rs, 77 So. 3d 1148, 1150-51 (Miss. Ct. App. 2011).  That and other other cases state that Mississippi does not follow the “stringent definition of standing” followed by the United States Supreme Court and that it has been “more permissive in granting standing to parties who seek review of governmental actions.”
However, there is a clear requirement that the plaintiff must have an interest in the subject matter, be adversely effected, and that the effect must be specific to him and different from that experienced by the general public.  Back to Hudson:
“In Mississippi, parties have standing to sue when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise provided by law.” Burgess, 814 So.2d at 152–53 (¶ 13) (citation and quotation omitted). “ ‘[C]olorable,’ when used to describe a claim or action, means ‘appearing to be true, valid, or right.’ ” Hall v. City of Ridgeland, 37 So.3d 25, 33 n. 6 (Miss.2010) (quoting Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 827 n. 13 (Miss.2009)).
“[T]o establish standing on grounds of experiencing an adverse effect from the conduct of the defendant/appellee, the adverse effect experienced must be different from the adverse effect experienced by the general public.” Id. at 33–34 (¶ 24).
In Hudson, the plaintiff, a citizen of Jones county who got SNAP benefits, sought to contest the place the county had located its DHS offices.  The Supreme Court held he had no standing:
Hudson does not claim to own any property at or nearby the prospective sites of the county DHS office in either Laurel or Ellisville. Hudson would simply prefer that the Board locate the county DHS office in Laurel instead of Ellisville. Essentially, Hudson argues he has standing to challenge the Board’s decision because he receives SNAP benefits and because he represents the interests of “the unwed mothers, the elderly, the low[-]income [citizens,] and disabled [citizens].” Regarding his representation of single mothers, elderly citizens, low-income citizens, and disabled citizens, Hudson is not an attorney. Although it is a noble sentiment, it is factually incorrect to characterize Hudson as representing people who fit within those categories. Hudson represents himself and no one else. It is unclear why Hudson finds the location of the county DHS office in Ellisville to be an adverse effect—perhaps it will require additional travel time or greater travel expense—but the adverse effect of placing the county DHS office in Ellisville as opposed to Laurel is certainly the same adverse effect that any recipient of SNAP benefits who lives in Laurel. Consequently, that adverse effect must be considered to be the same adverse effect that would be experienced by members of the general public who happen to live in Laurel and receive assistance from the county DHS office.
Taking the allegations in Hudson’s appeal to the circuit court to be true, it is beyond doubt that Hudson will not be able to establish any adverse effect other than that experienced by a member of the general public regarding the Board’s decision to locate the county DHS office in Ellisville. Accordingly, we find that the circuit court was correct when it granted the Board’s motion to dismiss. It follows that we find no merit to Hudson’s appeal. Because Hudson lacked standing to challenge the Board’s decision, any other issues on appeal are rendered moot. Therefore, we affirm the judgment of the circuit court.
Hudson v, 77 So. 3d at 1150-51.  There’s similar language in the case City of Jackson v. Greene, 869 So. 2d 1020, 1024 (Miss. 2004):
In Burgess, this Court also concluded that a party challenging a municipal decision under Miss.Code Ann. § 11–51–75 has the burden of “demonstrat[ing] a specific impact or harm felt by him that was not suffered by the general public.” Id. at 153 (citing City of Madison v. Bryan, 763 So.2d 162 (Miss.2000)). That is, the fact that a person resides in a municipality alone is insufficient to confer standing. Because the residents did not show a colorable interest in the subject matter of the controversy and residency in a municipality alone is insufficient to confer standing for purposes of Miss.Code Ann. § 11–51–75, the Court held that the residents did not have standing. Id.
If this lawsuit turned on a decision by the University to deny access the cemetery and the SCV could show it had members with relatives buried there, then that would seem to me to satisfy this standing requirement.  But the real claim here is the change of the name of Confederate Loop, and that the statute prohibiting certain changes in war memorials is violated by that change.  I fail to see how the SCV’s assertion, “We love Confederate stuff” gives them an individual right and injury here distinct from the general public.  I think they’ve got a real standing problem with that claim (and an equally obvious standing problem with their frivolous claim to bar the University from putting up explanatory plaques.  That claim bottoms out to a desire to not have their sleepwalking troubled with actual facts about the cause they hold so dear).
With that covered, what remains is the substantive issue of the merits of the claims themselves.

McDaniel reply brief in the election contest has been filed

There are not many surprises.  Most of the brief is an argument that Kellumthe case holding there is a 20 day deadline, is not the law.  The brief argues that it is not the law because the statute it construed has been repealed, because the reenactment of the statute materially changed it, and because, contrary to Kellum, the statute cannot be read to have a deadline.  The brief also argues that Kellum has not been cited for its central holding, and that it was effectively overruled by the Barbour v. Gunn decision, because it was allowed to proceed in spite of Gunn’s failure to meet the deadline.

None of this is new.  The attempts to argue the statute materially changed are largely conclusory, and, in this iteration of the argument, involves citation to other parts of the election code than this particular statute.  The repeal argument is silly; McDaniel might as well argument that the passage of the Code of 1972 repealed the statute.  Embodying pretty much the same statute in a code while retaining the same basic structure is not a straight-up repeal.

What the brief does is pretty much implicitly acknowledge that Kellum has to fall for McDaniel to win.  The case at its core turns on whether McDaniel convinces the Court it is wrongfully decided– is it wrong to read the statute as if it had a deadline.  While I’ve seen cases (one an election contest!) decided by the Court overruling a clear precedent, I’d predict against it here.

There are couple of new themes.  The brief opens with three pages attacking the state Republican executive committee for not doing its job in a timely way, but does not really tie that into the main argument.  It closes by responding to the Cochran brief argument that the issues raised only by amicus  cannot be reached by the Court. The argument is that the Constition’s Elections Clause, by providing that state legislatures set rules for Congressional elections, takes away the power of state courts to make such rules. McDaniel responds by noting places in the oral argument in the court below where his lawyer mentioned the Elections Clause. He does not suggest the point was raised in any form in his opening brief or the issues stated in his opening brief.

Here it is.

Notes on the Confederate Memorial Lawsuit: The plaintiff’s “petition” makes claims they can’t prove and one they can prove

The last post contained the University statements about what they intended to do relating to things like the Confederate statue.  They looked to a model that  “[w]ithout attempts to erase history, even some difficult history, and without removing existing statues and building names… initiate[d] an effort to provide contemporary context for some of our existing symbols and names, which are too often viewed as an endorsement…”  The report noted:  This might be done in a number of ways, including accompanying plaques that provide context and an educational opportunity for students and campus visitors who are interested in our history.”

So, there is no firm plan, but they are going to consider adding some sort of plaque to provide context.

The other thing the report does is state that the University is going to change the name of Confederate Drive to Chapel Drive.

Here’s what the Sons of Confederate Veterans lawsuit alleges.  It alleges that he Diversity Plan “indicated the possibility that the Confederate Monument… on the campus of UM… may be moved or repositioned or otherwise damaged or desecrated in some manner.”

No, it does not.  That allegation will not be proved in a hearing.  The complaint goes on:

[T]he SCV feels that it should take every measure to ensure … that no plaques or placards are placed in [the monument's] vicinity which will in any way take away from its meaning or in any way distort its significance….

The SCV requests… an injunction against the University of Mississippi, enjoining and preventing the University of Mississippi from disturbing or otherwise altering, desecrating, attacking, removing or placing any kind or plaque or placard which may in any way change alter or disturb the significance and meaning of the Confederate Monument on the campus of UM, with this monument to retain its special sentimental and emotional value to those people who lost loved ones in the War Between the States….

With no evidence that the University has any intent to alter, move, or desecrate (?) the statue, I do not see how they can get an injunction against that.  The question, then, is whether there is any basis in law for enjoining the University from placing some sort of plaque or historical marker by the statute.  The only authority for any relief cited in the complaint is the state statute protecting war memorials.

The complaint also alleges that the “‘Diversity Plan’ of UM proposes to remove the name ‘Confederate’ from this street and name it another ‘less offensive’ name.”  The complaint states that SCV will show that the name and cemetery are not offensive to most people in the State, county, city, or student body.  It is the ingress and egress to the cemetery.  The descendents of those buried in the cemetery have a right of ingress and egress to the cemetery and, “as a Confederate Cemetery, it is to be protected by the State of Mississippi which was responsible for raising the Confederate units from this state….”

There is no evidence relating to access to the cemetery, and Confederate Drive no longer leads to it.  The SCV wants to enjoin the name change because the road name is a war memorial and because it leads to the Confederate Cemetery.  Here again, the authority is the statute protecting war memorials.

Next post will be about that statute and whether they have standing are entitled to relief.

Notes on the Confederate Memorial lawsuit: What, exactly, does the University say it is going to do?

The lawsuit was in response to the university’s “Action Plan on Consultant Reports and Update on the Work of the Sensitivity and Respect Committee”. While the Sons of Confederate Veterans allege that they were unable to see this plan (implying it was some sort of secret), it is readily available online. Here is the University press release announcing it.

Only a few paragraphs relate in any way to the lawsuit:

Decisions made in the city of Richmond, VA, offer an enlightened example for us. Without attempts to erase history, even some difficult history, and without removing existing statues and building names, the city has moved toward balancing the way its history is represented by offering context for symbols and adding meaningful new symbols. Some of this kind of work began on our campus with the erection of the Meredith statue. Further opportunities lay ahead.

The new vice chancellor will be charged with the long-term management of this recommendation. Until that selection is complete, the Provost and the Assistant to the Chancellor for Multicultural Affairs are charged to lead this effort.

They also should initiate an effort to provide contemporary context for some of our existing symbols and names, which are too often viewed as an endorsement of ancient ideas. Any and all symbols and buildings may benefit from this, but some to consider in the early stages include Vardaman Hall, the ballroom in Johnson Commons, and the Confederate Statue. This might be done in a number of ways, including accompanying plaques that provide context and an educational opportunity for students and campus visitors who are interested in our history.

So, they’re looking to the experience of Richmond, which dealt with similar issues, “[w]ithout attempts to erase history, even some difficult history, and without removing existing statues and building names…”  What the report suggests is that the university “initiate an effort to provide contemporary context for some of our existing symbols and names, which are too often viewed as an endorsement…”  It describes some specific things on campus possibly in need of being addressed:

some to consider in the early stages include Vardaman Hall, the ballroom in Johnson Commons, and the Confederate Statue. This might be done in a number of ways, including accompanying plaques that provide context and an educational opportunity for students and campus visitors who are interested in our history.

So, at this point, the only thing the university is considering doing about the statute is an “accompanying plaque and provide[s] context and an educational opportunity….”  Something like a historical marker.  And they are not proposing moving or even altering the monument.

The report then goes on the make two immediate changes:

    • We will move forward with changes to two street names. Coliseum Drive will need a new name when the Tad Smith Coliseum is replaced with our new basketball arena. On a recommendation from the University of Mississippi Alumni Association and the M-Club, at the appropriate time the street currently known as Coliseum Drive will be renamed “Roy Lee ‘Chucky’ Mullins Drive.” The spirit of Chucky Mullins is a great unifying force for our university. A second street name change will extend the use of “Chapel Lane” to the single block on the opposite side of Fraternity Row previously named “Confederate Drive”.

That’s it.  They are going to consider doing plaques to provide some historical context at some places on the campus, and they are going to change the name of Confederate Drive to Chapel Lane the length of its run.

If they’d just gone ahead and done that at the time the original part of Chapel Lane was named, presumably in the 1990s, I doubt anyone would have noticed.

Notes on the Confederate memorial lawsuit: They think this gets them a TRO?

The complaint begins by asking for a Temporary Restraining Order, which is as thin a request for that relief as I’ve ever seen.  That relief would, of course, require the plaintiff (well, petitioner, according to the complaint. Among other things, the lawyer who drafted this is unaware of Miss.R.Civ.Pro. 7(a).  Since I am, I’m going to call this thing a complaint) to show irreperable harm.  And to show some reason for less-than-usual notice.

What the complaint alleges is that “the ceremony in which these places and monuments are to be altered and otherwise desecrated” was to take place September 19, 2014, and so it asks for a TRO “without notice” because there isn’t time to get proper service (the complaint was filed on September 18th).  The TRO was requested “so that no irreparable changes and/or damages may take place.”

While the complaint seeks a TRO, it is not sworn and contains no attachments.  A lot of the allegations (particularly, those about the University’s plans) seem to have been based on rumor.

Mississippi Rule of Civil Procedure 65 provides:

A temporary restraining order may be granted, without notice to the adverse party or his attorney if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the efforts, if any, which have been made to give notice and reasons supporting his claim that notice should not be required.

The complaint does not show how there will be an irreparable injury (I mean, can’t they just put the sign back?) or how changing the sign would be an injury to the applicant.  I don’t think hurt feelings do the trick here– the applicant must show he has an irreperable inury, loss, or damage.  Other than saying the change (what change is not exactly alleged) was going to occur on the 19th and the complaint was filed the 18th, there is no explanation about the lack of notice, and no attempt whatsoever to make an attorney certification of the efforts made to give notice.

Another oddity is that the complaint seeks (and the clerk issued) a Rule 81 summons.  Miss.R.Civ.Pro. 81(d) provides for a series of actions that can be tried thirty days after service– adoption, name change, termination of parental rights and other matters involving children, matters involving wills– but does not apply generally to other kinds of lawsuits and does not include among those covered “changing Confederate monuments” or anything remotely like that in its list of actions covered by the rule.

Finally, before moving to the merits, does the Chancery Court have jurisdiction of this thing?

Where is (or was) Confederate Drive at the University of Mississippi?

There’s been some question about where, exactly, the road called Confederate Drive might have been. My memory was that it ran from the old dorms by the cafeteria to the Confederate cemetery, and then, when the Tad Pad was plopped down in that path, it ended there. Turns out, that’s close, but, at least recently, not exactly right.

At some point, with no one complaining, the bit that ran from Dormitory Row to Fraternity Row got named Chapel Lane, for the chapel that was placed beside the od cafeteria. What remained was a road from Fraternity Row to the Tad Pad, and then looping around it. That was named Confederate Loop.  It no longer goes to the Confederate cemetery, which is behind the Tad Pad.  Here’s a map that shows what I mean.

Screen Shot 2014-09-25 at 11.41.50 PM

How many folks freaking out about this have actually taken the time to visit the memorials on the campus?  I have.  I have spent time in the cemetery, knew where Confederate Drive was, have spent time looking at, hearing the story of, and thinking about the monument on the loop.  No one is talking about descrating graves, or moving monuments, or the like.   In any event, the map above shows one point of argument. I’ll be posting more, later.