Thursday, December 14, 2006

Do you want to know what your government spends of staff members?

Linked here is an article that discusses a bill U.S. Rep. Roger Wicker for the First District of Mississippi says he is going to propose in January. The bill, according to the article, would remove all information on House of Representative employees from public records. So much for it being our government and having the ability to see how our representatives are spending our tax dollars.

Here is a link to the actual text of the resolution (HR 6404) as found on THOMAS.

Friday, December 1, 2006

MAEP - Mississippi Adequate Education Program

Over the past few weeks and I am sure into the legislative session next year a discussion is occurring in Mississippi about the Mississippi Adequate Education Program. This program (MAEP) is about how much funding schools should receive and what that funding should be directed towards. In recent days it has become apparent that Governor Barbour and what seems to be a majority of the Senate want to spend Educational funds one way and the House and a minority of Senate members want to “fully-fund” MAEP, spending money another way. For just a few of the many articles and/or stories on this debate see WLOX here. See a press release from the Governor here. See a statement from the Mississippi School Board Association (MSBA) here. For a Clarion-Ledger article see here.

Much of the descension seems to come from those feeling that Gov. Barbour is trying to pull a fast one as he agreed last year to fully fund education but he is choosing to spend a portion of the money on teacher pay raises and not include the money in MAEP which would, once again, under fund MAEP. By doing this more affluent, wealthy districts will receive a bigger share of the educational money pie than under the MAEP formula (thereby making the poorer districts receive a smaller piece of the pie under Barbour's plan) as the governors plan does not take into account the At-Risk Component and the wealthier districts often have more contributions within their districts that are also factored into the MAEP formula.

The purpose of this post is to try and bring a bit of understanding to our readers of what the MAEP actually is. The basic calculation is:
ADA (times) Base Student Cost (plus) At-risk Component (plus) ADA Allocation (plus) 8 % Guarantee (minus) Local Contribution = Adequate Education Allocation for a district.

For a breakdown of what these terms all mean see the MS Department of education website here. Additionally SB 2604 of the 2006 regular session altered some of the definitions of these terms, it can be found here.

For further information on what MAEP is I recommend reading the December 2002 PEER report found here.

For those unfamiliar with the PEER committee it is a group of 10-15 House and Senate members who investigate state programs (and almost always their expenses) to make sure agencies/programs/laws are being implemented as they were intended to when passed.

Monday, November 27, 2006

Lee County / Tupelo Legal Research

I wanted to post a link to an article in the NE Mississippi Daily Journal that discusses how the Lee County Library will now have Westlaw, an Internet legal research tool, available on at least some of its computers. Westlaw is one of two major companies (LexisNexis being the other) that provide this service to attorneys, governmental agencies, libraries and others and it is quiet handy if you know how to use it. As the article discusses the previous Lee County facilities contained volumes that were often out of date and keeping the paper portion of a law library up to date is time consuming and labor intensive. Another benefit this provides is longer hours for researching possibilities as the Library is open more often than the previous facility.

I do, however, have a couple of concerns about this transition. As the article states part of this move is made to free up office space at the Lee County Justice Center. My concern is that there is nothing physically wrong with most of the volumes in their current condition, especially the reporters. Reporters are not updated, they are just opinions from cases from a previous year and the next year another volume comes out and they are a continuous set, there is nothing wrong with the law in them unless a new case comes out reversing the ruling or way of looking at a set of circumstances. This rarely happens in criminal law and the feeling I got from the article is that the books were headed for the dumpster.

My other possible issue which the article did not discuss is legal research access for prisoners. I assume the initial thought for putting the law library in the Lee County Justice Center was to give prisoners access to them to try and figure out their own defenses/issues/plans. While I advocate the use of an attorney, especially when facing a criminal conviction, a person has a right to defend themselves and as such needs access to a legal library to be able to prepare an adequate defense. Hopefully, defendants in Lee County will have this access but if the library is now at the public library I highly doubt furloughs will be granted to go research their case and it appears the books will disappear so they cannot do research at a detention facility, both of which make it harder on a criminal defendant.

Tuesday, November 14, 2006

Carrying a gun on a school campus

Tommorrow the Jackson, MS mayor, Frank Melton, begins his trial on the felony charge of "carrying a gun on a school campus". While I do not want to get into a pro/con argument here I thought this would be a decent forum for posting the statute, 97-37-17, that it appears Melton has been indicted for. Here is a link to a .pdf of the indictments, only one of which is being tried this week.

97-37-17
(1) The following definitions apply to this section:
(a) "Educational property" shall mean any public or private school building or bus, public or private school campus, grounds, recreational area, athletic field, or other property owned, used or operated by any local school board, school, college or university board of trustees, or directors for the administration of any public or private educational institution or during a school related activity; provided however, that the term "educational property" shall not include any sixteenth section school land or lieu land on which is not located a school building, school campus, recreational area or athletic field.
(b) "Student" shall mean a person enrolled in a public or private school, college or university, or a person who has been suspended or expelled within the last five (5) years from a public or private school, college or university, whether the person is an adult or a minor.
(c) "Switchblade knife" shall mean a knife containing a blade or blades which open automatically by the release of a spring or a similar contrivance.
(d) "Weapon" shall mean any device enumerated in subsection (2) or (4) of this section.

(2) It shall be a felony for any person to possess or carry, whether openly or concealed, any gun, rifle, pistol or other firearm of any kind, or any dynamite cartridge, bomb, grenade, mine or powerful explosive on educational property. However, this subsection does not apply to a BB gun, air rifle or air pistol. Any person violating this subsection shall be guilty of a felony and, upon conviction thereof, shall be fined not more than Five Thousand Dollars ($5,000.00), or committed to the custody of the State Department of Corrections for not more than three (3) years, or both.

(3) It shall be a felony for any person to cause, encourage or aid a minor who is less than eighteen (18) years old to possess or carry, whether openly or concealed, any gun, rifle, pistol or other firearm of any kind, or any dynamite cartridge, bomb, grenade, mine or powerful explosive on educational property. However, this subsection does not apply to a BB gun, air rifle or air pistol. Any person violating this subsection shall be guilty of a felony and, upon conviction thereof, shall be fined not more than Five Thousand Dollars ($5,000.00), or committed to the custody of the State Department of Corrections for not more than three (3) years, or both.

(4) It shall be a misdemeanor for any person to possess or carry, whether openly or concealed, any BB gun, air rifle, air pistol, bowie knife, dirk, dagger, slingshot, leaded cane, switchblade knife, blackjack, metallic knuckles, razors and razor blades (except solely for personal shaving), and any sharp-pointed or edged instrument except instructional supplies, unaltered nail files and clips and tools used solely for preparation of food, instruction and maintenance on educational property. Any person violating this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than One Thousand Dollars ($1,000.00), or be imprisoned not exceeding six (6) months, or both.

(5) It shall be a misdemeanor for any person to cause, encourage or aid a minor who is less than eighteen (18) years old to possess or carry, whether openly or concealed, any BB gun, air rifle, air pistol, bowie knife, dirk, dagger, slingshot, leaded cane, switchblade, knife, blackjack, metallic knuckles, razors and razor blades (except solely for personal shaving) and any sharp-pointed or edged instrument except instructional supplies, unaltered nail files and clips and tools used solely for preparation of food, instruction and maintenance on educational property. Any person violating this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than One Thousand Dollars ($1,000.00), or be imprisoned not exceeding six (6) months, or both.

(6) It shall not be a violation of this section for any person to possess or carry, whether openly or concealed, any gun, rifle, pistol or other firearm of any kind on educational property if:
(a) The person is not a student attending school on any educational property;
(b) The firearm is within a motor vehicle; and
(c) The person does not brandish, exhibit or display the firearm in any careless, angry or threatening manner.

(7) This section shall not apply to:
(a) A weapon used solely for educational or school-sanctioned ceremonial purposes, or used in a school-approved program conducted under the supervision of an adult whose supervision has been approved by the school authority;
(b) Armed forces personnel of the United States, officers and soldiers of the militia and National Guard, law enforcement personnel, any private police employed by an educational institution, State Militia or Emergency Management Corps and any guard or patrolman in a state or municipal institution, when acting in the discharge of their official duties;
(c) Home schools as defined in the compulsory school attendance law, Section 37-13-91;
(d) Competitors while participating in organized shooting events;
(e) Any person as authorized in Section 97-37-7 while in the performance of his official duties;
(f) Any mail carrier while in the performance of his official duties; or
(g) Any weapon not prescribed by Section 97-37-1 which is in a motor vehicle under the control of a parent, guardian or custodian, as defined in Section 43-21-105, which is used to bring or pick up a student at a school building, school property or school function.

(8) All schools shall post in public view a copy of the provisions of this section.

I would like to add this forum will not become a Frank Melton board, however, looking at the purely legal side of this indictment/trial is an interesting fact of Mississippi law.

Monday, November 13, 2006

Disenfranchisement in Mississippi

During one of the local (Jackson, MS) newscasts this past week I heard the anchor say something to the effect of: “All those over 18 years of age and registered to vote, except for criminals with felonies, can vote Tuesday.” (paraphrasing). This is an incorrect generalization concerning the felonies. In MS you can be convicted of quite a few felonies and still be able to vote. The only disenfranchising convictions in MS are :

1. murder
2. rape
3. bribery
4. theft
5. arson
6. obtaining money or goods under false pretense
7. perjury
8. forgery
9. embezzlement
10. bigamy.

This is an exclusive list set out in Sec. 241 of the Mississippi Constitution.

Additionally the only way to reestablish this right in Mississippi is through a pardon from the governor or appropriate action by the legislature. 23-15-19 in the Code also recognizes this as the exclusive list and those convicted of the above crimes are not allowed to register to vote, taking the problem out of the hands of poll workers and relying on the county’s circuit clerk to purge the rolls appropriately.

As always we welcome discussion and any questions you might have about MS law.

Monday, November 6, 2006

Election Day 2006

Just wanted to provide a reminder that tommorrow, November 7 2006 is election day. In Mississippi all 4 US Representatives are up for election as is one US Senate seat. This election cycle is also fairly heavy with judicial elections with several Court of Appeals seats up for election (however, most are unopposed) and around the state there are many circuit and chancery posts up for grabs.

In my opinion if you don't vote you don't have a right to complain when the person screws up so go do your civic duty tommorrow.

BB

Tuesday, October 31, 2006

Judicial Election Issue

With elections upcoming next week I thought it appropriate to link a story from Rankin County of a judicial candidate, Richard Redfern, who has been ordered to immediately stop running ‘misleading’ ads. This order was propounded by the Special Committee on Judicial Election Campaign Intervention which was created by the Mississippi Supreme Court for a case just like this one.

The article states Redfern uses the term “Judge Richard Redfern Chancery Judge”. Redfern is currently a Justice Court Judge in Rankin County so I do not see why there should be a lot of discussion about him using the title Judge before his name. A Justice Court Judgeship is an elected position that disposes of numerous complaints and quarrels and quite honestly handles as many cases, if not more than the more typical circuit or chancery court judges. As for the part of the statement, Chancery Judge, I believe Redfern may be in violation of what he can do here and more appropriately should have put “for Chancery Judge”. I, however, do not think Redfern’s signs are as misleading as his opponents or the articles makes it sound as the couple of signs I have actually seen around Rankin County have something to the effect of Vote Judge Richard Redfern and then below and in smaller type Chancery Judge. Also I do not know if this was even brought up before the committee but virtually every time an incumbent candidate runs for another term the words “re-elect” are plastered all over the advertisements.

For a modicum of fairness I feel like I should say that Redfern’s opponents in the race are Dan Fairly and Randy Clark, both who are quoted in the linked article and appear to also be qualified for the job. There is actually one of these signs up near my house, if it is still there when I get off work tonight I will try and swing by and take a picture of it for the blog.

*** After further investigation all of Redfern's signs near my house do say for Chancery Judge and as such seem perfectly fine to me. Additionally, both Dan Fairly's and Randy Clark's signs say "for Chancery Judge" so I am completely perplexed as to what the beef is with Redfern and why the Committee ruled the way it did. - Edited 11/1/06

Monday, October 23, 2006

Death Penalty Law in Mississippi

I thought with the execution of Bobby Glen Wilcher last week it might be appropriate to look at the death penalty in Mississippi. There was also the sad story of an Ole Miss police officer being dragged to death this past week and the driver may be facing the death penalty. There are currently, after the execution of Wilcher last Wednesday, 69 inmates on death row in Mississippi of which there are 67 males, 2 females, 32 whites, 36 blacks and 1 Asian. The oldest person currently on Mississippi’s death row is Gerald Holland who is currently 69 and the longest serving member is Richard Jordan whose entry date on his MDOC page is March 2, 1977. For information on each death row inmate see here. It is estimated that in the state’s history around 800 people have been executed.

On the legal side of the death penalty in Mississippi there are 3 things in which one can be sentenced to death.

1. Capital murder – Miss. Code Ann. 97-3-19 (2) – Murder if committed under the following circumstances;
- Killing of a peace officer if the assailant knew the person was a peace officer,
- murder by a person under a life imprisonment sentence,
- murder by bomb or explosive devise,
- murder for hire,
- murder when done while also committing rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with a child under the age of 12, nonconsensual unnatural intercourse with mankind or an attempt to commit the above offenses
- murder when done in connection with a violation of 97-5-39 which is felonious abuse or neglect of a child
- murder on educational property as defined in 97-37-17
- murder of a public official with knowledge they were a public official

2. Capital rape – Miss. Code Ann. 97-3-65 - rape of a child under age of 14. It should be noted the law is not clear whether the death penalty is available for capital rape or the sentence tops out at life imprisonment (which is also a capital sentence). Another good resource on this issue is Collins v. State, 691 So.2d 918.

3. Air piracy – Miss. Code Ann. 97-25-55 – This offense is defined as “the seizure or exercise of control, by force or violence or threat of force or violence, of any aircraft within the airspace jurisdiction of the State of Mississippi”. The two available penalties for a violation of this offense is the death penalty or life imprisonment. This statute does not appear to have been used at this point in time.

If there are any specific issues concerning the death penalty law itself one might want to discuss we (the moderators) are open to that discussion but the intent of this post is to provide a primer, of sorts, of the applicable Mississippi law.

Friday, October 6, 2006

Recap of the Second Extraordinary Session of 2006

In what some have called record time both house of the Mississippi Legislature have passed a tax cut for modular homes. For more on the session which lasted less than two hours see this Clarion Ledger article. On a side note there were 10 bills introduced in the House regarding this sales tax with the House, in the end, voting on the Sentate's language as to prevent the need for a conference committee.

For the text of the bill see here.

Wednesday, October 4, 2006

Second Extraordinary Session of 2006

Governor Barbour has called for a Second Special Session of 2006 to begin Thursday, October 5th at noon. In the call of this Extraordinary Session (as it is legally known) the only topic to be taken up will be reducing the tax rate on modular housing. Governor Barbour reinforced that this would be the only topic and nothing else would be added to the call on a Jackson radio program this morning.

The change that is being sought by the governor would adjust the tax rate of modular homes from 7% to the 3% rate that is currently on manufactured homes or as they are better known is Mississippi, mobile homes. For a press release from the governor’s office see here.

Here is a quick primer on the difference in modular and manufactured housing.

While there are several benefits to giving this advantage to modular homes (and therefore their builders and buyers) I worry about what will happen to all of the contractors who currently build "stick-built" homes and are taxed at the normal 7% rate. The state's response to a disaster, while appropriate, may create a windfall for the major modular home producers in the country and greatly hurt the stick house building local contractors. Hopefully the legislature will include a sunset provision in whatever legislation comes out of this special session.

Thursday, August 31, 2006

Recap of the First Extraordinary Session of 2006

The “Special” session called by Haley Barbour earlier this month, principally to ensure tax incentives for the River Bend project in DeSoto County lasted only a few short days in comparison to some of Mississippi’s previous special sessions. See House Bill 25 for the bill’s language. The River Bend project is a project that has thoroughly been discussed in the local news. For more information on the project and its passage see the Commerical Appeal, Daily Journal, & Clarion Ledger.This project seems to be following a similar path of tax incentives as projects such as Nissan and SteelCorr.

However, River Bend is not the only project the Legislature addressed. Other bills also appear to have passed both houses. They include: Senate Bill 2005: an appropriation to renovate a portion of the Sillers building in downtown Jackson; Senate Bill 2010: creating special assessment areas and allowing for bonding and taxing with regards to a Byram/Clinton corridor; House Bill 1: allowing bonds to be issued for expanding the Magee General Hospital; House Bill 5: which provides grants for local governments on the Gulf Coast; House Bill 14: expanding the bonding authority for Gulfport’s Memorial Hospital. Many of these bills appear to be ready to be addressed by the governor but the Legislature’s website does not currently indicate they have been enrolled and signed to be sent to the Governor. I will research this further and post an update on this point in the comments when I find out more information.

Other bills did not get passed in this extra session. Key among these bills was Senate Bill 2003 that would reduce the sales tax on modular home units. The lack of passage for this bill is, however, rumored to be the basis for another special session.

Tuesday, August 1, 2006

Meth Offender Registry ???

The topic of a meth offender registry has once again surfaced in a recent Slate article, found here. According to the article at least 3 states: Tennessee, Illinois and Minnesota have already passed laws to create these registries and I would not be shocked if Mississippi were soon to follow. For a look at Tennessee’s registry click here.

I project this future registry based upon a couple of facts, 1. next year is an election year and being tough on crime is often seen as a good thing for a candidate, 2. people are obsessively scared of meth, like it is some sort of super drug (the article makes some good points about this), and want to punish it more than other illegal drugs, and 3. the Legislature has already shown a propensity to go after the Meth “element” so this would not be a first go around for legislators to think about these issues. For a most recent bill see Senate Bill 2511 of the 2006 Session.

There are two issues I am looking for with this post.

First, is to gauge public reaction to a possible meth registry, is it a good idea?, is it needed?, do you think it will work on some level?, if so how effective might it be?

Second, I am looking for people’s thoughts on registering felons in our state. Does the sex-offender registry work, if so will this registry work? Also, if we register sex offenders and meth creators/dealers why not everyone on parole or with prior convictions?

Monday, July 24, 2006

Mississippi Annexation Law

Currently if a town or city wants to annex property into a city all that needs to be done is the Municipality gives notice and files a petition for annexation in the proper Chancery Court. Typically, cities hold city council (or other type depending on the type of city government) meetings to get a feel for how those in the proposed annexation area (PAA) feel about becoming part of their city. It is at this point those in the PAA sometimes say, “O.K” but more often than not (it seems) they say “We don’t want to be part of the city that is why we moved out here”. However, in Mississippi those in the PAA do not have much of a say in the process. The municipality in their Chancery petition are supposed to address 12 factors that are “indicia” of reasonableness, under the assumption that if the Annexation request is reasonable it should happen.

There are several problems with this system. First, those getting annexed do not have a say except an uphill battle in court (Uphill because the standard begins against them since all that is required is reasonableness). Second, those getting annexed have to organize and hire attorneys by themselves to fend off the annexor; this is unlike the city which typically has a city attorney and who is paid by city taxes (and the taxes of those who live in the PAA if the city wins the annexation suit). Third, this system of annexation promotes inefficiency, which costs taxpayers in the long run. The system is basically set up to have a city act, have those who do not want to be in the city file suit, a Chancellor render an opinion, an appeal to the MS Supreme Court, and if the city does not comply with the annexation conditions (providing city services to the PAA) in a timely manner then we look at yet another suit seeking deannexation. It is this possibility of deannexation that the MS Supreme Court has said is the way those in the PAA get a say in the process (by getting annexed in and then trying to vote or sue themselves back out once they are in). How fair or efficient is this process? For more on the deannexation process giving those in the PAA a fair shake I highly recommend Justice Ed Pittman’s concurrence in 644 So.2d 1168.

This is, however, a process that may be changing in the future, hopefully. In the 2005 legislative session the following bills: House Bills 187, 216, 292, 483, 643, 761, 783, 796, 1169; House Concurrent Resolution 32; and Senate Bill 2889 all dealt with changing the MS annexation process. (I am still trying to calculate the 2006 bills). Most of these bills focus on having an election to determine if the annexation is appropriate. Different systems can have just the city vote, can have just the PAA vote, or can require both the city and the PAA to vote and both approve. The last two of these election systems seems more fair, to me, than our current annexation process.

Tuesday, June 27, 2006

MS Sex Offender Laws

There are several different issues this post will address concerning the MS Sex Offender Laws. The sex-offender topic has been in the news recently regarding a new law that goes into affect in Georgia on July that would make many sex-offenders have to relocate because of newly created buffer zones that include school bus stops. For more on the Ga. story see here and for an update here.

Mississippi law defines “sex offense” in 45-33-23(g) and includes acts such as rape; sexual battery; enticing a child for concealment, prostitution or marriage; unnatural intercourse; touching of children for lustful purposes and other assorted offenses. Additionally, upon the convicted sex offenders reentry to society (assuming they served time) They must register with the Department of Public Safety within 3 days of release and the DPS then notifies the local sheriff and the FBI. Additionally, if you are a sex-offender who is coming back into the state you must inform DPS 10 days prior to doing so. Sex-offenders must also give notification if changing addresses, reregister in person every 90 days and disclose his conviction if he wants to work with minors. Violations of doing all of these things may result in a felony conviction with a term of up to 5 years per 45-33-33. Now we have the basics of the law on to the juicier topics.

The Sex Offender Registry (SOR) – if a sex-offender is convicted and released he is placed on a sex-offender registry in MS that is available for public viewing here. This list is also good fodder for television stations that bandwagon this “service” such as here as this station runs ads about its access to the registry. There are several issues regarding the SOR that have been brought up with regards to MS and other states (my answers will be below and will kind of start the debate).

1. If this is a criminal penalty for a crime that has been committed why is DPS doing it and not MDOC; 2. If these offenders have to stay registered for life is their sentence ever really over? 3. Should the life-time registration offset some of the jail time or fine imposed on the convict? 4. What is the proper penalty to be assessed to these individuals?

My answers (not the law because the law has really not been thoroughly vetted in this area):
1. DPS does the registering because, despite the parole-like feel to reregistering, this is about protecting the Public from repeat offenders. There are also statistics that help show that compared to non-sex offenders released from State prisons, released sex offenders were 4 times more likely to be rearrested for a sex crime, per DOJ. So the state feels like it is allowing a potential danger into the area and as such they have a responsibility to protect the public.

2. The registration for life problem is one that I support; there is no age limit on being a sex-offender and once a sex-offender always a sex offender to me. Even those who help sex offenders say: "It is important to realize that this study does not claim we are curing sex offenders through treatment. The fact is, sex offenders are never considered cured."

In my book this is purely a part of their penalty of committing their original crime and reregistering every year for life is better for them than being in jail for the remainder of their lives (more on this in #4).

3. Offsetting some jail time or fine with the registry condition is no different than saying since I have to report for parole shouldn’t I get less time. The answer is no. Registering is simply part of the penalty along with the jail time and fine, not a tradable commodity. This thesis is closely tied to #2.

4. What is the proper penalty for sex offenders? Over the years offenses have ranged from death (Rape is/was a capital offense in Mississippi) to castration to chemical castration to years of hard labor to plain jail time. In my opinion we should lock them up with life sentences plus 20 to make sure they don’t get out on the whole lifespan deal with life sentences. As addressed above, the recidivism for this crime combined with the harm caused by it (as compared to recidivist auto burglaries for example) plants me in the throw away the key group. Some might argue for the harsher death penalty which I don’t go for but we can save that discussion for a different topic.

This post is created for the purpose of seeing what the mindset is in the community out there and both agreement and disagreement are welcome, just bring some thought with your post.