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

Missing Posts: If you have a link to a post that's not here or are looking for posts from Summer of 2010, check this page.

BlogRoll

“Shiny objects have no place in the law.”

While you await my discussion of the McDaniel election contest opinion, I will direct your attention to Anderson’s quotation and discussion of the Tea Party response. The response contains the sentence quoted in the title of this post. While I cannot explain its meaning, I make some notes about the recurrence of warnings about [...]

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. [...]

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 [...]

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 [...]

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

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

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 [...]

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 [...]

McDaniel reply brief in the election contest has been filed

There are not many surprises.  Most of the brief is an argument that Kellum, the 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 [...]