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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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 panel’s assertion that it applies Casey is false…

…the panel’s sham undue burden test…

…the panel’s perversion of the undue burden standard…

This court’s abject deference to state authority annihilates any “real substance” to the vital individual constitutional interest at stake:

The Abbott II panel decision conflicts with the Supreme Court’s decision in Casey in various ways.

Second, the panel misinterpreted and misapplied Casey’s “large fraction” test…

…the panel opinion is based on both erroneous legal precepts and improper de novo appellate court factual findings …

Nate Silver is starting to like Ole Miss’s chances.

This may be an odd pill for you Red State folks to swallow, but Nate Silver is starting to like Ole Miss’s chances of making the college football championship series.

You heard that right. Apparently, if you use “being in the top four at the end” as a stand in for “making the championship series,” it is week 5 standings that starts to meaningfully predict final standings.   Here’s what he said:

Up until Week 5 of the college football season, the schools on the periphery of the AP’s Top 4 typically have a slightly lower probability of finishing the year among the (now-coveted) top quartet of teams than those currently occupying those slots. Starting in Week 6 — and accelerating in Weeks 7-9, the current stage of the 2014 campaign — the teams in the top four slots begin to pull away from the rest of the pack, increasing their probability of ending the regular season among the “Final Four.”

That’s good news for Florida State, Auburn, Mississippi State, and Ole Miss, each of which found themselves sitting in the AP’s Top 4 after the dust cleared on this past weekend’s wild spate of upsets. Teams that survive midseason aren’t completely in the clear — historically, there’s still about a two-in-five chance that one of the teams in the existing Top 4 falls out after Week 9 — but teams in that position are significantly more assured of being “in” now than they were just two weeks ago.

After week 5, it looks according to his graph, a team in the top four is running almost a 40% shot of being in the top four at the end.  After two more wins, it becomes an almost 50% shot.

Well.

Let’s beat Texas A&M and take this a step at a time.

Be Careful Our There this Weekend in Oxford

An email from the mayor is circulating in the legal community, describing a coordinating meeting with law enforcement getting hyper-vigilant.  It concludes: “We will be EXCEPTIONALLY diligent in enforcing alcohol odinances and will have ZERO tolerance of people instigating problems LET EVERYONE KNOW that it will be easy to get arrested in Oxford this weekend.”

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

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.