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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Sons of Confederates sue the University of Mississippi

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 Division United Sons of Confederate Veterans,” which seems to be based in Hattiesburg (and, like the plaintiff here, apparently lacks any of the traditional indices of corporate form in its name).  The peculiar allegations of the peculiar complaint here begin by identifying where the plaintiff can be served with process, noting that Allen Terrell is the commander of the association.  They state that they may be served with process through their attorney, Holmes Sturgeon,* who states he can be found at his law office in Natchez but prefers to be contacted through a post office box in Woodville.  He signed the complaint, which, though unsworn, seeks an emergency injunction to stop the university from changing the name of a road.  They appear to have a hearing set (at least based on the date on their summons) for October 27th for their preliminary injunction.  It’s set before Judge Whitwell, who I presume released a somewhat frustrated sigh when learning this had fallen on his desk.

Before getting to the case itself, I want to note the oddest citation I’ve seen in a while.  The whole basis of the complaint is a Mississippi statute (previously noted by CRS in comments) that places limits on the alteration of war memorials, including those for the civil war.  I will talk about the statute in a later post.  In citing the statute, the complaint has this to say:

According to Mississippi Code 1972, annotated, as amended, sections 1 and 2, the statutory law clearly states that, “None of the following items…..”

There follows a full quote of the first paragraph of the statute with absolutely no hint of its citation.

The complaint describes some of the goals of their organization:

The SCV is a historical organization dedicated to the preservation of the history, heritage and memory of Confederate soldiers and the Mississippi Division of the SCV is charged with the preservation and protection of the heritage of the many soldiers who fought for the State of Mississippi in the War Between the States and is further charged with the protection of monuments, markers and other sites and memorials ….

That relatively bland description does not present the complete picture, or the exact nature of the heritage they honor.  (Here I am quoting and referring only to the Natchez-based organization in this lawsuit.) When they are talking among themselves, they are very upfront about what they wish to perpetuate:  Their cause is the same cause as that of the seceding states. Every issue of their newsletter has this quote under a masthead (with a picture of Jefferson Davis):

To you, Sons of Confederate Veterans, we will commit the vindication of the Cause for which we fought. To your strength will be given the defense of the Confederate soldier’s good name, the guardianship of his history, the emulation of his virtues, the perpetuation of those principles which he loved and which you love also, and those ideals which made him glorious and which you also cherish. Remember, it is your duty to see that the true history of the South is presented to future generations. 

One of its divisions has this on its web page:

“If I ever disown, repudiate, or apologize for the Cause for which Lee fought and Jackson died, let the Lightning’s of Heaven rend me, and the scorn of all good men and true women be my portion. Sun, Moon, Stars, all fall on me when I cease to love The Confederacy. ‘Tis the Cause, not the fate of the Cause, that is glorious!”

Major R.E. Wilson, C.S.A.

The cause of the Confederacy was not merely the preservation of slavery, it was the imposition of slavery upon the rest of the country, demanding that they become slave-capturers under the Fugitive Slave Act, and that the protection of their property in human beings be projected into new territories.  Their demands that the entire nation support and protect the institution of slavery on terms dictated by the South was what brought about the war.  Their intent is not just to honor the memory of their ancestors; the heritage they demand be respected is the notion that the preservation of slavery was, to quote the Conferate monument on the Oxford Square, a “just and holy cause.”

There’s a lot more to explicate from that complaint but that will have to wait until later.  Meanwhile, here it is.

_______________

*He’s on the bar directory but does not, at least to examine his pleading, seem to posses a bar number.

Cochran’s brief has been filed…

Here is the Cochran brief

I’ve read through it, and my views of how this comes out have not really changed.  Nothing new– the essential points are the same:  1) The Kellum case says that the statute, read as a whole, has a 20 day deadline for filing the contest; and 2) The statute has not materially changed.  The brief develops their argument that the Barbour v. Gunn case has no impact on Kellum because the 20 day deadline question was not raised in Barbour.  It confronts the amicus brief with three arguments.  First, amici are not allowed to raise arguments not reflected in the record below or in the issues on appeal, something the amicus clearly does here.  Pretty strong language from Mississippi cases is quoted on this point.  Second, there isn’t an election clause issue (that is, an argument that the legislature has to make Congressional election rules, not the courts) because the legislature did make this rule and ratified the court’s interpretation when it readopted the language thereafter.  Third, Bush v. Gore has nothing to do with anything here, which is so, but is an argument that does not get much beyond the negative assertion.

Reading through the briefs is pretty exhausting, which may reflect the feelings of the folks doing this marathon.  I think the time deadlines interfered with both side’s ability to write a tight, well-organized argument, or even time for such details as citing the primary case being argued correctly in the Table of Authorities.

McDaniel-With friends like this… Alt title: “I would have written a shorter letter, but I did not have the time.”

The title quote is from a letter from Pascal.

The time deadlines in the McDaniel case are mighty tight.  Cochran’s lawyers (new ones keep appearing on the Supreme Court docket with regularity) have less than a week to file their brief, and so when I saw they’d sought additional pages, I thought of the quote in the title.

But, no, they have a better basis, and, with the amicus already eroding his oral argument time, it’s got to give McDaniel more reason to wonder if having an amicus is such a good thing. Their motion states:

By Order dated September 22, 2014, the Court granted the Motion of the Conservative Action Fund Seeking Leave to File Brief as Amicus Curiae. Appellee’s response to that brief must be included in Appellee’s Brief pursuant to Miss. R. App. P. 29(c). The Comment to Miss. R. App. P. 29 contemplates that the Court may allow additional pages under these circumstances. See Comment, Miss. R. App. P. 29 (“If the court grants leave to file [an amicus curiae brief] . . . it may condition leave by extending the number of pages permitted under Rule 28(h) for the opposing party’s next brief.”)

And so they get 10 extra pages, as requested.

Land records follies: Yes, “more or less” is pretty much it.

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.

Even the Mississippi Supreme Court wants a friend: more from the McDaniel appeal

Well, this might be annoying to the McDaniel legal team.  Not only did the court (through an order by Justice King) agree to allow the amicus brief to be filed, which I’m sure pleased the McDaniel folks, the court also granted the amicus request to participate in oral argument.

Which will come out of McDaniel’s time.

Here’s the order.

Also on the docket, McDaniel’s lawyers got around to dealing with their deficiency letter, and filed record excerpts, thereby raising the question in my mind: Does anyone (else) put the cost bill and designation of the record in a record excerpts?! (perhaps the scheduling order had some meaning given tight deadlines, but I saw nothing in the brief suggesting why that might be there, either).  They also learned from the deficiency letter that one must serve the trial judge with a copy of the brief and say so in the certificate of service, although the docket doesn’t suggest that problem has been resolved.

In an upcoming post:  Update on the further adventures of psuedo-journalist Charles Johnson.

Chris McDaniel has a friend, who thinks Bush v. Gore will help McDaniel win.

The Conservative Action Fund, through Thomas A. McKnight, Jr. of the law firm Wallace, Jordan, Ratliff & Brandt, LLC in Birmingham, has asked to file an amicus brief on behalf of Chris McDaniel in the Mississippi Supreme Court.

The brief states that the CAC’s mission is to protect the right of big donors to give unlimited money as a First Amendment right (well, they don’t put it exactly that way, but that’s what it means).  They took to the United States Supreme Court the case McCutcheon v. F.E.C., which overturned the aggregate contribution limits in Congressional races. The CAC seems to be the creation of McCutcheon and to have been set up just for that lawsuit.  McCutcheon is an electrical engineer in the coal industry who lives in suburban Alabama.

The motion for leave to file outlines the issues raised in the brief:

3.  This Court should not extend its ruling in Kellum v. Johnson, 115 So. 2d 147 (Miss. 1959), to Miss. Code § 23-15-923, because the Elections Clause of the U.S. Constitution, U.S. Const., art. I, § 4, cl. 1, grants exclusive power to regulate federal elections specifically to state legislatures. See Cook v. Gralike, 531 U.S. 510, 523 (2001). It thereby imposes a unique duty on courts to afford special significance to the express test of state laws that regulate federal elections, including election contests. E.g., Bush v. Gore, 531 U.S. 72, 112- 15 (2000) (Rehnquist, C.J., concurring); id. at 131 (Souter, J., dissenting); Reform Party v. Black, 885 So. 2d 303, 312 (Fla. 2004); cf. Libertarian Party of Ohio v. Blackwell, 567 F. Supp. 2d 1006, 1012 (S.D. Ohio 2008); Valenti v. Mitchel, 790 F. Supp. 551, 555 (E.D. Pa. 1992).

b. If this Court determines that a 20-day deadline does not exist for filing an election challenge under Miss. Code § 23-15-923, then it should adjudicate McDaniel’s claims in the first instance here, rather than remanding for further proceedings. Both Miss. R. App. P. 14(a) and Miss. Code § 9-3-37 permit this Court to resolve factual questions in the appeals before it, and this Court is not limited to the specific facts and issues that the lower court previously ruled on. Yazoo & Miss. Valley R.R. Co. v. Adams, 32 So. 937, 943 (Miss. 1902).

c. If this Court concludes that it would be appropriate to hold a new runoff primary election conducted in accordance with state law, but that there is insufficient time before the general election, it may order that the general election for U.S. Senate be postponed past Election Day. See 2 U.S.C. § 8; Busbee v. Smith, 549 F. Supp. 494, 519-29 (D.D.C. 1982); see also Public Citizen, Inc. v. Miller, 813 F. Supp. 821, 830 (N.D. Ga. 1993), aff’d 992 F.2d 1548 (11th Cir. 1993) (per curiam).

Basically, in the first point he suggests that the Mississippi Supreme Court is inventing the deadline without a statutory basis, and, because the rules governing elections to Congress are assigned by the Constitution to the state legislatures alone, the courts can’t… well, can’t construe them, other than “strictly.”  This amounts to trying to inflate the “there’s no deadline in the statute” into a constitutional argument.  That’s at least an interesting argument.

Question:  Can amici come up with an argument not even hinted in the brief of the party they support? I know it’s a comment thing for them to argue facts and the like in support, but can they raise a new legal issue?

The third suggests that the Supreme Court try the election contest itself!  Wooh, that would be exciting.   I’ll let folks discuss that one in comments.

The fourth asks that, if there is going to be a new primary, the general election should be delayed.

Here is the motion and proposed amicus brief.

Exclusive Nick Saban Half Time Locker Room Photo

Satan_Nick Saban

thanks to Sarah Simonson for executing the idea.

An oddiment in McDaniel’s brief: Gunn is not legitimately in office if Cochran’s argument is right.

Phillip Gunn is Speaker of the House.  A key point of contention is the impact of an election contest between he and Jep Barbour that the Mississippi Supreme Court decided in 2004 that centered around the state elections of 2003.

Obviously, Gunn has fully served the term he won in that case, along with another term and the better part of a third.

Citing the principle that a decision of a court that had no jurisdiction is void, McDaniel closes his brief by suggesting that Gunn could be removed from his most recent successful election for something a court did three elections ago:

To apply a new or different standard to Senator Chris McDaniel’s challenge would not only create a double standard in the Court suggesting judicial activism, but would also void this Court’s decision in Barbour v. Gunn ab initio. If this Court were to decide that it was wrong in its jurisdictional analysis – if the Court did not have jurisdiction to hear Speaker Gunn’s election contest case because he did not file his complaint with the SREC within 20 days, then Speaker Gunn could be removed from his office, since this Court’s ruling in that case would be void ab initio. Therefore, the Republican Party’s State Executive Committee’s certification of Jep Barbour as the winner would stand.

Since it pretty much highlights that McDaniel is willing to argue for utter chaos and that his arguments are silly, not the note I would have ended on.

The brief and a discussion of it are in a prior post.

Apple is promising iOS encrypts your data so securely Apple can’t even see it, or give it to law enforcement

This is the best announcement I’ve heard from Apple in a while.  Lily Hay Newman reports on Slate:

In the new mobile operating system, all you have to do is add a passcode (which you should already have anyway!) to opt in to encryption that denies Apple special access to your data. Apple announced on Wednesday night that even if it gets a warrant from law enforcement for your data, it will be unable to comply if you have this encryption enabled. …

In the wake of NSA spying revelations, tech companies felt a backlash when it became clear that they were forking over user data to U.S. law enforcement without much resistence. By locking personal data down so companies themselves can’t access it, they sidestep the issue of whether or not to comply, and avoid being accused of obstructing justice.

As the Washington Post explains, the difference in iOS 8 is that adding a passcode automatically opts users in to the new encryption. In previous versions of iOS, Apple maintained some backdoors into passcode-protected devices. In the company’s new privacy section, it says:

On devices running iOS 8, your personal data such as photos, messages (including attachments), email, contacts, call history, iTunes content, notes, and reminders is placed under the protection of your passcode. Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data. So it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.

Of course, we’re throwing the fences down when we install apps like Facebook, but this is a good start.

Here’s the McDaniel’s brief

The brief was filed today.  I’m reading through it, but it’s slow going.  First, I’m not sure whether it’s incredibly boring, or I’ve become bored with this dispute.  Second, it is incredibly redundant, says the same thing over and over, and continually repeats itself.

I’m reading through it and will probably post more when done in updates in this post.  The arguments are the same as before, although considerably fleshed out.  While the argument is better presented than previously (well, the first couple of times a point is made. Did I say it’s redundant?), I’ve seen nothing that convinces me to change my opinion.

Here ’tis.

Update:

There’s reason to believe that Anderson might cluck his tongue at this bit; when you read the phrase “See Record Supp. at 6″ you might substitute “See Not-In-The-Record Supp. at 6.”

None other than Secretary of State Delbert Hosemann, Mississippi’s chief election official, concluded that § 23-15-923 did not require Chris McDaniel to file his election-contest complaint with the SREC within any specific number of days. See Record Supp. at page 6.

About the brief:

Following a discussion here requires some familiarity with the arguments raised in the Cochran motion to dismiss.  There are two relevant statutes:  One statute provides for county election challenges and that they have a 20 day deadline.  The following statute provides for multi-county election challanges and has no deadlines.  A 1959 case, Kellum v. Johnson,  held that the statutes were to be read together, and the 20 day deadline applied to both.  Based on that case, and because McDaniel filed the case well after 20 days, the trial court dismissed McDaniel’s contest.

McDaniel argued that the Kellum case should not apply because the statute had been repealed by the passage of the election code.  Cochran argued that the legislature’s reenactment of a substantially identical statute meant that the legislature had implicitly approved of the court’s 1959 reading.

Here’s a point, the 31st or 32nd time this point is made (it’s on page 32):

When the Supreme Court of Washington faced the issue, it recognized that a change in statutory law indicates that “the Legislature had in mind a mischief and a remedy.” It further held that in construing statutes which reenact or repeal other statutes, or which contain revisions or codification of earlier laws, where a material change is made in the wording of a statute, a change in legislative purpose must be presumed. Graffell v. Honeysuckle, 191 P.2d 858 (Wash. 1948). See also State v. Budik, 272 P.3d 816 (Wash. 2012) quoting Graffell and applying the same rule.

Well, all right.  But first, they have to convince that the changes are material in the sense that they have siginficance to the provision at issue.  Are there changes relating to the time provision? No.  Is the essential structure the same? Yes.  There’s a statute for county eletions, a county for multi-county elections in both, both say what to do to file a challenge, and the first has a deadline and the later does not.  There is nothing that changed that relates to the Supreme Court’s original conclusion that the statutes are read together and the deadline applies in both.  Saying they are different over and over and saying that means the old statute is repealed and the 1959 Kellum case doesn’t apply is all a conclusion, not an argument.  First, the material difference has to be demonstrated.

Put most clearly:  A material difference on this point would be one that suggests the legislature made changes that suggest that the time limit in the first statute no longer applies in the second.  No such change has been shown.

Most annoying argument:  There’s a case called Barbour v. Dunn under the multi-county contest statute where the court heard the contest although, from the fact statement in the opinion, it’s clear the twenty-day requirement was not met.  The court’s opinion explicitly faced a different jurisdictional requirement– that there be a contest, first, before the party executive committee.  The McDaniel brief argues:  See! The court held it had jurisdiction!  The brief concludes that argument:

The Mississippi Supreme Court [in Barbour v. Gunn] was entirely satisfied that jurisdiction had been conferred through the application of §23-15-923 in conjunction with §23-15-927. Notably, the Supreme Court did not look to §23-15-921 to determine whether or not Gunn met his jurisdictional requirements. Why? Because §23-15-923 as overhauled by the legislature in 1986 and further amended in 1988 cleared up any ambiguity and it now rests on its own and needs no further statutory construction interpretations.

You’d guess that some of this logic is represented in the opinion, and that the part after the word “Why?” is based on something in the case.  Nope.  The court never suggested or hinted at a thing about the interaction of these statutes or the 20 day deadline.

Making the same point, the brief implicitly raises the question: If you say something that isn’t so twice, does it become more likely so?

The Court’s analysis of jurisdiction in Barbour v. Gunn speaks directly to the question currently before the Court sub judice. That is, whether McDaniel satisfied the requirements of §23-15-923. The analysis employed by the Court in Barbour v. Gunn applies directly to McDaniel’s challenge herein.

There’s no direct speaking on the jurisdiction point here whatsoever.

While on the subject of Barbour v. Dunn, why is this argument saved for page 43?

Cochran argued to the lower court that the Mississippi Supreme Court in Barbour v. Gunn just passed over in silence the jurisdictionally determinative question whether Speaker Gunn was properly before the SREC by filing his complaint with the SREC 34 days after the primary, but Drummond tells us otherwise:

It has been argued that inasmuch as the high court did not mention the subject of its jurisdiction, or the question of the direct appeal, it may be considered that it did not pass upon that question. The authorities above cited are distinctly contrary to any such argument, for the court was bound to pass upon the question, as already shown. Therefore, instead of assuming that it did not pass upon the question-which assumption would be that it was oblivious of its duties in the premises-we must rather assume that it considered the question so plain, that the validity of the statute in that respect was so obvious, that it required no discussion of the point.

Drummond v. State, 185 So. 207, 210 (emphasis added).

Later, the brief notes:  “When a court proceeds to judgment, it necessarily implies a finding by the court that it had jurisdiction. 34 C.J. 925; 3 C.J. 371, 372; also 15 C.J. pp. 851, 852.  Drummond at page 209.”

This is an argument that the court in Barbour is presumed to have reached the jurisdiction issue and therefore decided there was no 20 day time limit barring the challenge by going ahead and hearing the case.  That’s an interesting argument, but a good start for an answer is that the implied holding in Barbour should certainly by trumped by the explicit holding in Kellum.

The place where I totally lost the plot:  I found the effort to distinguish U.S. v. L.A. Tucker (which was cited by Cochran in a supplement in the court below) on page 42-43 utterly incomprehensible.  I had two reactions:  I have no idea what they’re talking about here; and, this is total word salad.  Reading the L.A. Tucker opinion, I kind of see why it makes them freak out a bit.  Particularly since one of the opinions they’re wanting to reject was by Chief Justice Marshall.

In L.A. Tucker, the Court rejected an argument that an issue in a  prior case had to have been jurisdictional because it could not have been heard in a collateral attack case otherwise.  The Supreme Court stated:

The effect of the omission was not there raised in briefs or argument nor discussed in the opinion of the Court. Therefore, the case is not a binding precedent on this point. Even as to our own judicial power or jurisdiction, this Court has followed the lead of Chief Justice Marshall who held that this Court is not bound by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub silentio.

United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S. Ct. 67, 69, 97 L. Ed. 54 (1952).   McDaniel declares victory on this point, announcing that he has distinguished L.A. Tucker without explaining how or why.  In this section of the brief, he creates a really ugly phrase:  The Doctrine of Sub Silentio.  The what?  The doctrine of “in silence?”  A Westlaw search turns up reference (in Veterans appeals) to a “Doctrine of Sub Silentio Denial,” which the courts say does not exist. That phrase suggests the gramatical problem with the phrase “Doctrine of Sub Silentio.”  Something’s missing.
Most puzzling argument:  In trying to sugest that the statute construed in Kellum had been completely wiped from the books, the brief goes on and on about three legislative attempts to re-do the law governing primaries in the 1970s and early 1980s, all of which were refused preclearance by the Justice Department, as the brief notes.

Flight from meaning:  “Thus, the statutory reconstruction/interpretation of § 25- 15-923, as requested by the Appellee, was not required for the Hinds County Circuit Court nor the Mississippi Supreme Court to fully comprehend and apply §23-15-923 in Barbour v. Gunn.”   Indeed.