MCPP Special Report: Free speech lawsuit heading back to state court

(Special report provided by Mississippi Center for Public Policy)

Chief District Judge Daniel P. Jordan III has sent a free speech lawsuit filed by the Mississippi Justice Institute (MJI) back to state court and ordered the city of Jackson to pay the attorneys’ fees incurred by the plaintiffs while opposing the city’s attempt to move the case to federal court.

The lawsuit challenges the constitutionality of an ordinance recently enacted by the city of Jackson which bans free speech outside of the state’s only abortion clinic. MJI is representing the plaintiffs, who are members of Sidewalk Advocates of Life – Jackson, Mississippi.

After MJI filed the lawsuit in Hinds County Circuit Court last fall, the city attempted to remove the lawsuit to federal court, stating in a press release that federal court was “the appropriate venue for this matter,” despite the fact that the plaintiffs had alleged only that the challenged ordinance violated the Mississippi Constitution, and had not made allegations regarding the U.S. Constitution.

In an opinion issued Wednesday, Jordan sided with MJI’s motion to remand the case back to state court, stating, “It is up to Mississippi’s courts to interpret the state’s constitution and develop the state’s constitutional law.

“The Court is hard-pressed to find a reasonable basis justifying removal in this case. All of Plaintiffs’ claims allege that the ordinance violated their rights under the Mississippi Constitution. As to Plaintiffs’ free-speech claim, the city said that Plaintiffs necessarily raised a federal issue because their claim concerns an abortion-related law, which ‘is at the center of controversial and evolving federal jurisprudence[.]’ That may be true, but the city cites no case law—nor can the Court find any—from which it could reasonably conclude that this could form the basis of federal-question jurisdiction. As explained, the case law, and basic principles of federalism, are to the contrary.”

The judge also held that attorneys for the city of Jackson lacked any reasonable basis to believe their removal of the case to federal court was legally proper, and therefore ordered the city to pay the legal fees and court costs incurred by the plaintiffs in opposing the move. The Court instructed counsel for the Sidewalk Advocates to submit a motion with an affidavit supported by billing records documenting the reasonable attorneys’ fees and costs that they have incurred. While the plaintiffs are represented by MJI for free, the law allows public interest law firms such as MJI to recover reasonable costs and fees incurred when a defendant improperly removes a case to federal court.

“Quite frankly, we were shocked by the position taken by the city of Jackson in these court filings,” said Aaron Rice, the Director of the Mississippi Justice Institute. “Jackson’s argument completely disregarded the principles of federalism upon which our country was founded, denigrated the competence of state courts to hear state law claims, and was dismissive of the authority of state courts to interpret their own state’s constitution. Fortunately, the federal court understood that, and ensured that state courts will have this important opportunity to interpret the Mississippi Constitution’s free speech protections.”

The new ordinance bans individuals who are near health facilities from approaching within eight feet of any person without consent, for the purpose of engaging in various forms of speech such as counseling, education, or distributing leaflets; bans people from congregating or demonstrating within 15 feet of the abortion facility, and bans any amplified sound. Violations of the ordinance could result in fines of up to $1,000 and 90 days in jail.

“Women regularly accept our offer to help in the midst of an unexpected pregnancy, said Pam Miller, Co-Leader of Sidewalk Advocates for Life – Jackson, Mississippi. “In fact, in partnership with other peaceful community members, more women than ever have opted to take advantage of the free, alternative resources the Jackson community provides. We are committed to connecting women with the loving, life-affirming assistance they deserve, and we will continue to serve the women of Mississippi in a peaceful and law-abiding way.”

“Now that we have resolved this jurisdictional issue, MJI looks forward to vigorously defending our client’s fundamental freedom to have peaceful, compassionate, and respectful conversations in public places about one of the most profound moral and political issues facing our nation,” said Rice.  “To deny that right would be to deny the very essence of a free society.”

The order granting motion to remand can be found here.