State and Local Legal Blog

Itawamba County — Now Monroe & Lee

August 30, 2010
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Northeast Mississippi made national news again last week.  And not for emerging economic development.  In action which reminds one of  the Itawamba County School Board dumping the prom rather than having a gay couple attend, the school board in Nettleton made the news.

Nettleton is a small community of about 2,000 (2000 census) that straddles the Monroe and Lee County lines.  Administrators of the Nettleton Middle School devised a plan to “ration” the ability to run for student government offices based on race.  For example, only white students could run for president or secretary-treasurer of the student government association, while only black students could run for vice-president and reporter.

According to the Huffington Post, all of this came to a head as a result of an inquiry made by a 6th grade student to the middle school administration.  The student is 1/2 white and 1/2 native American.  She was told that she could run for “white” offices but could not run for the office of reporter — a “black” office.  Why?

The 6th grader’s  mother couldn’t answer that “why” question and took the matter up with the school board.  According to the Huffington Post the mother was told by the board: “Go by the mother’s race because with minorities the father isn’t generally in the home,” and that “a city court order is the reason why it is this way.”

School Superintendent Russell Taylor said that the administration was trying to “ensure minority representation and involvement in the student body.”  But he and his administration changed their minds after the 6th grader’s mother inquired of the school board as to the viability of the decision.

The 6th grader and her sibling have been withdrawn from the Nettleton Middle School by their mother.

Folks in Northeast Mississippi are some of the nicest, kindest and most giving folks in the state.  I know from personal experience.  What is going on with the school boards up there?

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Looking Forward to Next Year’s Laws

August 26, 2010
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It is definitely not to early to be planning legislative strategy and building support coalitions.  Many trade associations and other traditional communities of interest are busy doing just that.

The hot-button issues which are bubbling up this August are immigration and personhood.  A significant number of Mississippians, including Lieutenant Governor Phil Bryant, support an immigration bill shaped much like the legislation Arizona passed earlier this year.  The Lieutenant Governor, speaking at an immigration forum early in August, stated that he was in favor of legislation that clearly indicated that illegal aliens, violating federal laws, should not expect to be welcomed in Mississippi.

Lieutenant Governor Bryant has long worked to document illegals in Mississippi — an incredibly difficult task.  As former state auditor, he published an extremely thorough white paper examining the issues of immigration in Mississippi and made some projections about the number of illegal aliens residing in Mississippi.  His numbers are consistently higher than census numbers, and probably closer to a correct number.

The 2009 census report suggests that, with Mississippi’s total population floating around 3 million, 2.5% of those residents are Hispanic.  Bryant has consistently argued that the number of Hispanics living in Mississippi is higher — between 50,000 to 70,000, an opinion with which I agree.  According to his calculations, it is costing Mississippi taxpayers about $25 million a year in provision of social services, educational access and the like.

Several legislators have already indicated that they will submit or support legislation similar to that passed in Arizona.


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Subdivision Alteration: Alert

August 23, 2010
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The Court of Appeals of Mississippi released an opinion recently which should prick the necks of P&Z board members across the state.  This case is City of Gulfport v. McHugh which can be found online at http://www.mssc.state.ms.us/Images/Opinions/CO63649.pdf. A short overview of the facts is in order:  A couple sought to alter subdivision lines on a lot they owned.  They brought it to the P&Z, which approved.  The couple, however, had declined to notify interested neighbors or list them, as required by statute.  (Mississippi Code Annotated 17-1-23) The P&Z recommended that the city board approve the request of the couple, but the city did not grant the alteration requested.  However, in a subsequent meeting without notice to the interested neighbors, the city approved action, accepting the recommendation of the P&Z.

The relevant statute requires someone seeking to alter an existing recorded subdivision to provide a map or plat which describes the alteration as well as the names of the persons to be adversely affected thereby or directly interested therein.  Thje statute also requires that those named as interested or adversely affected must be made aware of the action sought.

Clearly, P&Z ignored the statutory requirements and the city gave the requirements short shrift.  So said the Circuit Court in examining the Bill of Exceptions filed by a group of interested or adversely affected individuals; the Court of Appeals affirmed.

The moral:  P&Z should be acutely aware of their responsibilities and have an alteration case well prepared before it makes a recommendation to the city.  The city should not assume that P&Z has done its job; actions taken on a P&Z recommendation is the city’s responsibility.


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Iowa Dreams

August 19, 2010
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Last week a Jackson TV station reported that Governor Barbour had authorized a mailing to Iowa voters, asking them to tune in to his personal website.  Since Iowa hosts the first presidential caucus, speculation of the Governor’s interest in the race is growing.

On the 15th of this month, the Iowa Republican website listed the top 10 likely caucus candidates.  Governor Barbour didn’t make the top 10 list, although he was one of three potential candidates who “just missed the list.”

Ahead of our Governor on the speculation list for GOP presidential candidates are:  Sarah Palin, Mike Huckabee, Tim Pawlenty, Mitt Romney, Ron Paul, Newt Gingrich, Rick Santorum, John Thune, Mitch Daniels and Rick Perry.

Mike Pence and Tom Price join Governor Barbour in the “almost” list.


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Spice

August 16, 2010
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Pearl and Hattiesburg have passed ordinances against spice, but you need not worry about the taste of your pumpkin pie this Thanksgiving.  Spice, or K2, is a synthetic marijuana.  The general language of both ordinances outlaw use, possession, purchase, distribution or sale, etc.  Local stores sell Spice as incense; internet marketers tout it as a “legal high”.

Principally the ban is on synthetic chemicals similar to the psychoactive ingredients found in natural marijuana.  The bans are both misdemeanors.


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Senators Working on Mississippi Immigration Law

August 13, 2010
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Three young Mississippi Senators have announced that they are working to draft new immigration legislation they will introduce in the 2011 session of the Mississippi legislature.  They are Senator Chris McDaniel of Laurel, Senator Michael Watson of Pascagoula, and Senator Lee Yancy of Rankin County.  While specific details are not available, they have indicated that the proposal will, in many ways, mirror Arizona’s new law.

The Department of Justice has filed suit against the Arizona law, and currently a federal court judge has ordered that several aspects of the law are unconstitutional and has enjoined their application pending additional litigation.  That doesn’t worry these Senators; nor does it seem to bother Lt. Governor Phil Bryant, who literally begged the Obama administration to “bring it on” at a Tea Party meeting in Madison last week.

My prediction:  By the time the 2011 session opens, a dozen immigration bills will have been dropped in the box.  Most of these bills will be authored by Senators, and most by Republican Senators.  The House will be a different story.  But Mississippi will come out of the 2011 session with some changes in its immigration law and policy.



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Immigration, Mississippi Style

August 11, 2010
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The immigration issue is being seen by the GOP as a winner and some folks in Mississippi are considering the introduction of “Arizona style”  immigration legislation.  Speaking at an event hosted by a unit of the Tea Party in Mississippi and the Mississippi Federation for Immigration Reform and Enforcement in Madison, Lt. Gov. Phil Bryant and state Rep. Becky Currie, both Republicans, articulated their interest in a tough immigration stance like Arizona’s.

Representative Currie, who has admitted to stopping and inquiring of laborers that she sees as she goes about her daily routine if they “look like they are from out of town”, has concluded that E-Verify is simply not working and that stronger measures must be taken in Mississippi.  Governor Barbour seems to agree and at the Neshoba County Fair announced that he would sign a bill much like Arizona’s new immigration law if it were presented to him.  That’s immigration, Mississippi Style.


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Immigration Policy Bubbles to the Top

August 9, 2010
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Several years ago, immigration was a hot topic.  Then it became obscured by the presidential race, the economy, the bail-outs, and on and on.  But, possibly as a result of the recent focus on Arizona and the seemingly xenophobic of her governor and other leaders, immigration policy has bubbled to the top again.  And a new sound bite has come, too:  anchor babies.
That’s right:  anchor babies.  It a reference to children of illegal immigrants who are born in America which seems to be bringing GOP attention to the provision in our Constitution that confers citizenship on anyone who is born in the US.  The term was brought to us by Rand Paul earlier this spring as he campaigned for the GOP senate primary for a chance at the seat to be vacated by Senator Jim Bunting (R-Ky).  Following this lead, Minority Leader Mitch McConnell (R-Ky) is thinking of holding hearings on the issue.
Senator McCain (R-Az), who has the reputation for collaboration with less conservative colleagues to get things done in the capitol, is in a reelection race with someone who is much to the right of him and who is pushing hard to gain momentum in his campaign via emphasis on the anchor-baby.  The Senator’s response, however, is that inside the beltway, legislators are much more interested in first securing borders before turning to other immigration issues. McCain’s colleague in the Senate, Russ Feingold (D-Wis), chairs the Senate subcommittee that would most likely conduct the hearings; he has unequivocally indicated that his committee would not hold such a hearing.
Pundits have observed that immigration is a wonderful issue for the GOP this year.  It largely unites Republicans, while being a divisive issue for Democrats and Independents, causing a splintering of support for Democratic candidates.
While Governor Jan Brewer (R-Az) is taunting other GOP governors to get their backs up and not fear “to do what it takes to protect our citizens and our borders”, Democrats don’t see it that way.  As the Hispanic population grows, voter registration of Hispanics grows, and the HVAP shifts to the South and West, U. S. Rep. Luis Gutierrez (D-Ill) sees the anti-immigration wing of the GOP as “leading the GOP off an electoral cliff.”

Immigration policy is a divisive, hot-button issue.  Most people in the United States have a definite opinion, whether reasoned or not.  But it is a large and important issue which is also complex, with tentacles reaching into the VAP, the economy, the constitution, social welfare, and other segregated concerns.

If you were called upon to articulate an immigration policy, what would it be?  You might not be willing to take up that challenge, but other Mississippians will.


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More on Miranda

August 6, 2010
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The case of Berghuis v. Thompkins has changed Miranda rights for accused individuals. A bit of facts are due to be considered, but the Supreme Court’s decision is not fact-driven.

In this case, the defendant was interrogated by police after he was arrested and accused of murder.  For three hours, the defendant said virtually nothing.  When he did speak, his words had nothing at all to do with the charge of murder, or anything even remotely related to it.  After about three hours, the interrogating police officer asked the accused whether he believed in God, whether he prayed to God, and whether he had asked God to forgive him for committing the crime of which he was accused.  To each of these questions, the accused merely responded “yes”.

Later, the prosecutor sought to introduce the defendant’s response to whether he had asked God to forgive him for committing the crime.  The defendant objected and requested that the statement be suppressed because he had invoked his Miranda rights by sitting in the interrogation for over 3 hours of interrogation and not responding in any way to the police interrogation, save making random, unrelated statements.  After several layers of appeals, the Court decided that Miranda rights could  not be implied from the behavior or ambiguous words of the accused, but should require an unambiguous act of the accused.  There was no dispute that the defendant had been read his Miranda rights and indicated that he understood them.  He did not overtly waive his Miranda right to remain silent but he did stay silent for 3 or more hours.  The defense argued that by his action (or inaction) he had clearly indicated to the police that he did not intend to cooperate with the interrogation process.  When the police shifted gears into a spiritual theme, the defendant did not perceive that the interrogation was continuing.

The Court’s ultimate finding is succinctly stated here:  :In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police.”

Defense counsel argued that questions linked not to the felony but to religious belief would be an avenue of relief for the defendant, but the Court denied that shifting to interrogation in the religious realm would give any reason for the utterances of the defendant to be suppressed.

That a question is linked to religious beliefs does not cause the reply to be “involuntary”. The accused, understanding his rights and that they were capable of invocation at any point, had not chosen to invoke them.

I can follow the reasoning of the majority; it is a clearly written and easily understood opinion.  But I must say that I was simply delighted with Justice Sotomayor’s take on the fact situation revealed in a portion of her dissent in this case.  Justice Sotomayor argued that the majority opinion was a substantial retreat from the protection against compelled self-incrimination that had long been available to the accused.  Then she dropped the bomb:  “Suspects must now unambiguously invoke their right to remain silent — which, counter intuitively, requires them to speak.” Don’t you love a well turned phrase?


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Ernesto Miranda and 1966

August 5, 2010
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If you are an individual of a certain age, then you immediately recognize the name Ernesto Miranda.  He is such a firmly entrenched part of American culture that even the youngest child who is blessed with a television can recite your Miranda rights:  “You have the right to remain silent. Anything you say can and will be used against you in a court of law.You have the right to speak to an attorney.If you cannot afford an attorney,  one will be appointed for you. Do you understand these rights as they have been read to you?”

Miranda was accused of rape and various other felonies in Phoenix and, as a result of his conviction and appeal, a signal right of an accused in America was established.  The US Supreme Court ruled that the person in custody must, prior to the interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; further that the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during the questioning, and that if he or she is indigent, an attorney will be provided at no cost to represent him or her.

Shortly thereafter, Miriam Webster introduced a new word to the American English lexicon:  the verb mirandize.

The mid-60s were the high watermark of the rights of the accused in America.  Since then, the judiciary has been chipping away at the rights awarded to the accused in the 1960s.  Jeffrey L. Fisher, co-chair of the amicus committee of the National Association of Criminal Defense Lawyers called incursions into Miranda by the Court “death by a thousand cuts”…in which the Court has “been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects.”

Admittedly the Court has grown more conservative since the 1960s; that will change.  There is truly a pendulum in politics, policy and social and cultural judgments, and it is true that there is a ying and yang — a give and take — of the rights of the victim versus the rights of the accused.  But for now, the rights of  the accused but not yet convicted are being eroded.  And the majority of Americans seem to be satisfied with that.

Stay tuned for an analyssis of Berghuis v. Thompkins, the most recent Supreme Court case which has contributed to the erosion of Miranda rights.


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