In Memory of The Honorable Hal Neilson
Judge Hal Neilson passed away this week. Judge Neilson was the judge for the Oxford Municipal Court, and he was the current President of the Mississippi Municipal Judges Association.
Oxford Municipal Court is where citations for misdemeanor crimes (traffic tickets, public drunk, MIP, DUI, simple assault, ect.) issued by Oxford Police Department are heard. Municipal Court is the place where most people are likely to interact with and experience the law. Judge Neilson treated everyone in his courtroom with the utmost respect. Judge Neilson took great effort to explain things to the “real people” in his court and give them a fair courtroom where they felt heard.
When I started practicing criminal law several years ago, I had practiced law for 17 years but was new to Municipal Court and the court’s procedures and practices. Many judges are hard on experienced lawyers who start new areas of practice and look for opportunities to “show up” those lawyers when the opportunity arises. Not Judge Neilson. He was very patient with me and never once showed frustration with me or embarrassed me in front of my clients.
After court, he would invite me to his office and explain to me how I should have handled one thing or another. And he always told me he wanted to see more of me in his court. I do not think that sentiment had anything to do with me personally, rather, I think he wanted his court to be a place where everyone felt comfortable, even lawyers who had never stepped foot in Municipal Court before.
Judge Neilson was kind to me, and I will always be grateful for that kindness. He was a true gentleman. My prayers go out to his family, and while their loss is greater, the Oxford legal community lost a good judge this week.
Colorado Ballot v. Trump
Bold TLV prediction—Colorado, Maine, et al. decisions to remove Trump from ballots are going to be reversed by the Supreme Court. The Disqualification Clause of the 14th Amendment was intended to keep Confederate leaders from holding federal office and provides that any “officer of the United States” who took an oath “to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” is disqualified from holding office again.
The legal issues are legion—who decides if someone has engaged in an insurrection? Does inciting equal engaging? What procedures must be followed to make that determination and who decides those procedures? Can the federal government tell the states how to decide disqualification? I would be lying if I claimed that I understood all of the constitutional issues, and I guarantee you that the reporters who will be reporting on these issues will not understand them either.
The news will try to inflame, not explain, but the Supreme Court will try to get it right. Look for news sources that try to explain the legal issues and arguments, not the news sources that treat it like a soap opera or professional wrestling.
The controlling factual issue that drives the legal issues whether the mob of January 6 was an insurrection at all, and, if so, whether Trump incited that insurrection.
The Supreme Court does not have to decide that issue for itself. It has already been decided by a federal “court.” Remember that Trump was put on “trial” for inciting an insurrection. Impeachment is a trial with the Senate acting as the jury. The Senate, acting as jury, voted and voted not to impeach. Does that impeachment vote resolve the issue?
There is a general rule that once a federal court has decided an issue then a state court cannot issue a contrary decision on the same issue. The Colorado and Maine ballot decisions are judicial decisions that appear to conflict with the Senate impeachment vote. Seems to this Local Lawyer that the impeachment trial is the controlling decision on the matter—no impeachment, no inciting insurrection, no disqualification.
But Colorado will argue that it controls its ballot and it gets to decide who incites insurrection—a State’s Rights argument from the left, always fun when arguments flip. I think that the Supreme Court will hold that a state court cannot issue a decision that conflicts with the result of an impeachment trial, the impeachment trial found no incitement of insurrection, and no disqualification.
The Local Lawyer thinks the court will tell congress that it “shot its shot,” and missed, that it could have left it up to the states, but went for the political points of the Congressional Impeachment trial instead (oh, the irony).
I think that the court is going say that the impeachment trial verdict prevents the states from making independent, contrary decisions. Someone tell me how it turns out. I am turning off the news until November 5, 2024.
Mitchell Driskell has practiced law for twenty-two years. He is currently with the Tannehill & Carmean firm (voted Oxford’s Best Law Firm every year since 2010). You can reach him at 662.236.9996 or mitchell@tannehillcarmean.com. He practices personal injury law, criminal law and family law and is very close to level 2000 on Candy Crush.
