State and Local Legal Blog

Second Chance Prom

June 25, 2010
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Does the name Constance McMillan ring a bell?  Constance is the young woman in Fulton, Mississippi who sought to bring her girlfriend to the Itawamba Agricultural High School prom earlier this spring.

Constance did something simple. She asked her small school if she could bring her girlfriend to a dance. And she wanted to wear a tuxedo.  Her request was rejected by county school officials and she fought back with the help of the American Civil Liberties Union. Her case is still pending in federal court.  Constance will likely graduate high school and she expects to leave the South.

But she did get a chance to go to a prom this year.  Held on May 8, 2010 at the BancorpSouth Arena in Tupelo, and sponsored by the Mississippi Safe Schools Coalition, is actually the 2nd annual Second Chance Prom hosted by the Coalition, which provided bus transportation from population hubs all across the state, including Southaven, Hattiesburg and Jackson.

Citizens of Mississippi never cease to amaze me.  No matter how conservative the majority of us seem to be, there is always a willingness  in some quarters to support others different from ourselves.


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AZ education controversy

June 23, 2010
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The Arizona legislature passed, and its Governor signed HB 2281, which prohibits public schools from having various types of courses including classes that “are designed primarily for pupils of a particular ethnic group.”

It seems to me that perhaps Arizona’s leadership has too much time on its hands.  This legislation, particularly in a state of such diversity, is ill conceived.  Arizona’s population is about 68% Caucasian, 3.6% African American, 5.7% American Indian, 2.3% Asian, 0.03% Native Hawaiian or other Pacific Islander and 25%, plus a small portion of those individuals who classify themselves as “other”.  Arizona is home to 22 Native American tribes and a rich Hispanic culture dating back to the 1700s.  There are numerous museums providing insight to both demographic groups.

Moreover, this legislation has a chilling effect on free speech, as well as on a restricted curriculum for students of Arizona.  It is not hyperbole to consider book-burning, and — as was often said of the Third Reich, a culture who burns books will soon burn people.

Arizona’s legislators did not do their homework.  This issue has been raised time and again at the United States Supreme Court.  The seminal case is Keyishian  v. Board of Regents, 385 US 589 (1967) which explained that in a free society such as ours:

“The classroom is peculiarly ‘the market place of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth “out of a multitude of tongues, [rather] than through any kind of authoritative selection.”

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DUI Refresher

June 21, 2010
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Oops!  I knew it would happen some day.  A friend of mine got a DUI during the past week.  It was his first (fortunately) and he called me — mad (at himself), remorseful, and scared.

I am a former prosecutor and used to prosecute DUIs on a weekly basis (City of Starkville vs. Whomever). But the law has changed since then.  Back then you were DUI if your blood alcohol level was 0.10; now it’s 0.08.  For anyone under the age of 21, the limit is 0.02 and for operators of commercial vehicles the limit is 0.04.

Mississippi First Offender

So I had to tell my friend (the 1st offender) that he should anticipate no more than 48 hours in jail (he had already served about 11 hours in the drunk tank).  The Court can substitute attendance at a victim impact panel instead of 48 hours in jail.  (I told him to opt for jail if he had a chance.  Listening to mothers who have lost children to drunk drivers is torture; you’re feeling bad enough if you have just received a DUI.  In fact, a lawyer friend of mine who was unlucky enough to get a DUI and opted for the victim impact panel said that he could only categorize it as “cruel and unusual punishment” that was his “own damned fault”.

A first offender fine is not less than $250 nor more than $1,000.  But the killer penalty is the license suspension.  Your driver’s license and driving privileges will be suspended for a period of not less than ninety (90) days and until you attend and successfully complete an alcohol safety education program (“drunk school”).  Suspension should not exceed one year.  You must also pay a reinstatement fee of $100.00.  (It used to be $25.00.)

You have to pay for the drunk school.  You have to attend 2.5 hours per day, 1 day a week for 4 weeks.  The cost is $100.00 but if you don’t do it, you can’t get your license reinstated.

If you’re lucky, you may qualify for a hardship license.  At any time after at least thirty (30) days of suspension for a first offense violation, the court may grant you hardship driving privileges, if it finds reasonable cause to believe that revocation would hinder your ability to (a) continue employment, (b) continue attending school or an educational institution, or (c) obtain necessary medical care. This costs money, too, as its a Circuit Court proceeding, completely isolated from the criminal DUI proceeding and it can only successfully be done by retaining an attorney experienced in this type of proceeding.

Whatever you do, don’t refuse the intoxylizer (the machine you blow your breath into).  You might not be 0.08, but if you refuse the intoxylizer test, your license will be suspended for 90 days, even if you are found “not guilty”.  Any driver failing to submit to the requested test will be charged with DUI.

What else could happen to you?  Well, besides being embarrassed by having your name on the police blotter, your insurance rates, and those of your family members (and in some cases your employer) will increase significantly.

Your insurance rates will probably increase significantly, and rates for family members and in some cases for your employer, may increase as well.

We all need a DUI refresher from time to time.  Don’t drink and drive!

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Hurricane Expectations for 2010

June 18, 2010
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NOAA has suggested that we expect an “active to extremely active” hurricane season is expected for the Atlantic Basin this year As with every hurricane season, this outlook underscores the importance of having a hurricane preparedness plan in place.

Across the entire Atlantic Basin for the six-month season, which begins June 1, NOAA is projecting a 70 percent probability of the following ranges:

  • 14 to 23 Named Storms (top winds of 39 mph or higher), including:
  • 8 to 14 Hurricanes (top winds of 74 mph or higher), of which:
  • 3 to 7 could be Major Hurricanes (Category 3, 4 or 5; winds of at least 111 mph)

These projections are established so that individuals, communities and counties can make emergency plans.

What will the hurricane season mean for the oil escaping into the gulf at a contested, but alas, significant rate?  I’m no meteorologist, environmentalist, or any type of expert who should be commenting, but I just can’t imagine that a hurricane would improve the current situation.  What can we do to prepare for that potential?  Is this question on MEMA’s mind?

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Tea Party in Mississippi

June 16, 2010
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This summer I am lucky enough to have a research assistant, Daniel McDonald, who is a rising junior at MSU.  He provided me this information on the Tea Party in Mississippi which is worth some contemplation.

The Official Tea Party of Mississippi was an initiate of North Mississippi.  However, the loose association is growing statewide.  The following are the largest Tea Party affiliates in Mississippi.

  • 9-12 Project of Jones County (Laurel, MS)
  • 912 Project of Hattiesburg (Hattiesburg, MS)
  • Bay Waveland Tea Party Patriots (Bay St. Louis/ Waveland, MS)
  • Columbus MS Tea Party (Columbus, MS)
  • Joe Tea Part Tegerdine (South Mississippi)
  • Meridian Tea Party (Meridian, MS)
  • MS Gulf Coast 912 Project (D’Iberville, MS)
  • MS Gulf Coast Tea Party (Gulfport, MS)
  • MS Tea Party (Jackson, MS)
  • MS Tea Party Patriots to Impeach Obama (Ocean Springs, MS)
  • MS Tea Party (Greenwood/ Carrollton, MS)
  • Northeast MS Tea Party (Iuka, MS)
  • Patriots of the South (Sumrall, MS)
  • Poplarville Tea Party (Poplarville, MS)
  • Starkville Tea Party (Starkville, MS)
  • Southwest MS Tea Party (Pike, Amite, Walthall, Lincoln, Franklin, and Lawrence Counties)
  • Tea Party of MS (Olive Branch, MS)
  • Tea Party Rangers (Terry, MS)
  • Tupelo Tea Party (Tupelo, MS)
  • Vicksburg Tea Party (Vicksburg, MS)

The first state convention of the Mississippi Tea Party was held on April 30th and May 1st, 2010.  Approximately 35 delegates representing Tea Party groups from all over the state met to ratify the Constitution and to transform the Mississippi Tea Party (MSTP) into a unified statewide association to promote the Tea Party movement.

There were some initial thoughts that the Tea Party would have a significant impact on the 1st District Congressional race; it did not.  But as the MSTP and its loose association of affiliates spreads across the state and gains momentum, it will contribute new contours to Mississippi’s political landscape.

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Thoughts on the Census

June 14, 2010
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On Friday last, I had the pleasure of joining Sid Salter on his talk radio show and we discussed the census, reapportionment of congressional seats, and redistricting of legislative seats.  It is difficult to understand reapportionment and redistricting without a full understanding of the census, yet for many people there is simply a disconnect between “census” and “reapportionment and redistricting”.

Reapportionment and redistricting will not — could  not — occur without the results of the decennial census.  It is the census that reflects for us the changes in the demographics of the country and of our state.

If you have ever had the privilege of taking an accounting class, you have learned that a financial statement is a “snapshot” of your financial condition or that of your business on a particular day of the year — ordinarily the last day of the calendar year or the last day of the fiscal year recognized by your business.  The census is similar.  It is a “snapshot” of what Mississippi’s population looks like on a theoretical day in the year 2010.  In early 2011, that snapshot will join with 49 other snapshots from the 49 other states and a determination will be made as to how congressional seats will be reapportioned in order to reflect equal representation among the population.

Which is why the census count is so important.  The Delta counties have historically had a weak response to the census.  Mississippi is not the only state that suffers with minority under-count, but we do know through census data collected during the last few decades that the Delta’s response is not as significant as the response in the other part of the state.  A new challenge for Mississippi is our Hispanic population.  This minority, too, is growing in our state, but its members are reticent to respond to the census because they may be illegal aliens.  The census counts everyone — including illegal aliens.  And it is important that Mississippi have its illegals counted.  But our business community is not immigrant friendly and these individuals are concerned that responding to the census will bring attention to their situation and location, perhaps resulting in deportation.

This year, in addition to the under-count of minorities in our state, there is the issue of “Katrina” demographics.  Where are these people who used to live and work on our gulf coast?  Have they all returned?  Are they residing with family members? Will the clusters of “Katrina trailers” be counted effectively? Do the clusters of “Katrina trailers” even have addresses?  Many of those who suffered through Katrina became devotees of post office boxes for receiving mail because their location was “iffy” for months and years.  The Census Bureau looks for people “on the ground” and the individuals who now rely on post offices boxes for receiving mail may not have a valid location associated with the box.

Mississippi won’t lose another congressman this decennial census.  At least that’s what the “experts” say, and I tend to agree with them.  But because of the growth of population in some parts of Mississippi, the diminishing population in other parts, and the relocation associated with Katrina, our 4 congressional districts may require restructuring, as may many of our state legislative districts.

The greatest thing you can do for Mississippi right now is to help our contract Census employees and volunteers get the count.

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City Solid-Waste and Waste-Water Contracts

June 11, 2010
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The Mississippi Court of Appeals considered the manner in which cities should procure solid-waste contracts in Wastewater Plant Service Co., Inc. v. City of Long Beach, No. 2009-SA-00413-COA.  The Court reiterated the Attorney General’s position that a contract between a municipality and a company to manage the city waste-water-treatment plant should be governed by Section 31-7-14 (r), as should all contracts for maintenance and repair of water and sewer lines, pumps, wells, meter reading, and assisting the water department with other services.  Regular bidding requirements do not apply.

Contracting with waste-disposal contractors requires a different methodology.  Beware!

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A Sad Day for Mississippi Lawyers

June 9, 2010
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The past two years have taken a toll on the legal profession in Mississippi.  Begun by the “Dickie Scruggs” affair, the damage to the profession has perhaps ended as the Mississippi Supreme Court disbarred Bobby DeLaughter after he pled guilty to one count of attempting to obstruct, influence, and impede an official proceeding of the United States in violation of 18 USC 1512 (c) (2).

Bobby DeLaughter, a former Mississippi Circuit Judge in the metro area, pled guilty to lying to an FBI investigator in the course of a federal investigation.  DeLaughter, a former assistant DA, was the judge on the Byron de La Beckwith case, when de La Beckwith was convicted of the murder of Medgar Evers in 1963.  This conviction resulted in a movie, “Ghosts of Mississippi” produced by Rob Reiner; Alec Baldwin played DeLaughter in the movie.

DeLaughter was accused of dealing favorably to Scruggs, et al., in an asbestos case in return for being promised a place on the “short list” for federal court appointments in Mississippi.  That’s right — not a federal appointment — just a place on the short list.  How sad. How very sad.

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Minority Census Responses

June 7, 2010
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Robert Groves, the Director of the Census Bureau, was in the state on the 3rd of June, meeting with panoply of representatives from a variety of civil rights organizations about the low census participation in parts of Mississippi.  The Census Bureau had received complaints that numerous residents in Delta communities did not receive census forms, and that Mississippi’s immigrant populations were not responding either.

Groves’ visit came in response to a May 18 letter to the Congressional subcommittee overseeing the census that highlighted obstacles to administering the census in historically hard-to-count communities.

An example of Delta response is Tunica County, with 49% participation as of the end of April.

Mississippi needs to work to bridge the gap between the African American community’s participation in Mississippi public life.  The state also needs to realize that we WILL be losing more congressional seats if we do not carefully count our immigrant communities.  The business-friendly atmosphere that Governor Barbour has effectively fostered has an unfortunate downside.  Immigrants are fearful of responding to the census, thinking that they may risk loss of employment or deportment or both.

When you look to Census Bureau statistics, the states with large immigrant contingents have more congressional seats.  It’s not rocket science.  Several years ago, Lt. Governor Bryant issued a white paper which suggested, among other things, that there is a significant population undercount in the Hispanic community in Mississippi.  This needs to be righted by the 2020 census or the congressional seat that we are projected to lose in 2030 will arrive earlier than scheduled.

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Minority Farmers Fail in Lawsuit

June 2, 2010
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The Minority Farmers Association sued the State of Mississippi alleging that the tax laws were being administered in a fraudulent and racially discriminatory manner.  Specifically, the Association alleged that the state tax assessors were over-valuing black farmers’ homes and farms while under-valuing white farmers’ homes and farms.  The lawsuit was filed under 42 USC 1983, 1985 and 2000 (d), traditional state action sections utilized for race discrimination cases.

U. S. District Judge Daniel P. Jordan, III dismissed the case for lack of standing based on the Tax Injunction Act, 28 USC 1341.  The Association appealed.

The 5th Circuit Court of Appeals affirmed Judge Jordan, saying that the Tax Injunction Act prohibits district courts from “enjoin[ing], suspend[ing] or restrain[ing] the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such state, and that Mississippi state law provided such a remedy.

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