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
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
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
An entity calling itself the “Mississippi Division Sons of Confederate Veterans” has filed suit against the University of Mississippi, alleging a right to enjoin the University from changing things related to the Civil War on campus. It is hard to say who the plaintiff might be. There is an incorporated organization called the “Mississippi [...]
The description begins:
A parcel of real property containing 49.5 aces, more or less, being described as follows: Commencing …
and then it ends:
…to the POINT OF BEGINNING. Containing 88 1/2 acres, more or less.
As noted above, “more or less” is the operative phrase here.
This is one of those dog bites man / man bites dog things. The headline would be “McDanial campaign makes a rational announcement.” Nope.
Last week, the trial judge announced that McDaniel’s election challenge was dismissed. Any lawyer involved could have advised McDaniel where he was in minutes. Supporters commented on this blog that [...]