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: 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?

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