Case 3:23-cv-00272-HTW-LGI Document 138 Filed 01/02/24 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

NATIONAL ASSOCIATION FOR THE Case No. 3:23-cv-272-HTW-LGI

ADVANCEMENT OF COLORED PEOPLE, ET AL.,

Plaintiffs, PLAINTIFFS’ MEMORANDUM IN

v. SUPPORT OF RENEWED
MOTION FOR INJUNCTION
TATE REEVES, in his official capacity as PENDING APPEAL
Governor of the State of Mississippi, ET AL.,
RULING REQUESTED BY NOON
Defendants. ON WEDNESDAY, JANUARY 3,
2024

Pursuant to Fed. R. Civ. P. 62(d), Plaintiffs respectfully request that the Court issue an

injunction preventing Defendants Randolph and Fitch from making appointments pursuant to

H.B. 1020 § 4(2) and § 5(1) of the judge and prosecutors for the CCID Court during the

pendency of Plaintiffs’ appeal from the Court’s December 31, 2023, order denying Plaintiffs’

motion for a preliminary injunction. Dkt. 135. Plaintiffs further respectfully request that the

Court rule on this motion by no later than noon on Wednesday, January 3, 2024.

The CCID court has now come into existence, and Defendants Randolph and Fitch are

now required by H.B. 1020 to make their appointments. Those appointments, however, are

currently stayed by order of the Court of Appeals, which expires at noon on Friday, January 5,

2024. See Exhibit A. Absent relief from this Court by noon on Wednesday, January 3, 2024,

Plaintiffs will be constrained to seek relief from the Court of Appeals at that time in order for the

Court of Appeals to have time to act before the expiration of the current stay at noon on January

5. Plaintiffs seek this relief in the first instance from this Court rather than the Court of Appeals

because Fed. R. App. P. 8(a)(1) requires that a party seeking an injunction pending appeal “must

ordinarily move first in the district court.”

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To warrant a temporary injunction pending an appellate court’s consideration of a

preliminary injunction motion, a party must show (1) a strong likelihood of success on the

merits; (2) irreparable injury without an injunction; (3) that the balance hardships supports an

injunction; and (4) that the public interest favors such relief. Whole Woman’s Health v. Jackson,

13 F.4th 434, 441 (5th Cir. 2021). The considerations regarding the second, third, and fourth

factors are the same that this Court considered in granting the TRO to provide time to consider

the merits of Plaintiffs’ first motion for a preliminary injunction with respect to § 1 of H.B. 1020.

The rationale for that first TRO applies equally to the instant motion for an injunction pending

appeal. See Order, Dkt. 38 (granting TRO “[t]o maintain the status quo and to avoid possible

irreparable harm from any violation of constitutional rights to equal protection of the law”); see

also, e.g., Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014) (“It is

always in the public interest to prevent the violation of a party’s constitutional rights.”); Church

at Jackson v. Hinds County, 2021 WL 4344886, at *6 (S.D. Miss. Sept. 23, 2021) (Wingate, J.)

(where a party alleges the deprivation of a constitutional right, “no further showing of irreparable

injury is necessary”).

Plaintiffs “need only present a substantial case on the merits when a serious legal

question is involved and show that the balance of equities weighs heavily in favor” of the

administrative relief. Campaign for S. Equal. v. Bryant, 773 F.3d 55, 57 (5th Cir. 2014) (quoting

United States v. Baylor Univ. Med. Ctr., 711 F.2d 38, 39 (5th Cir. 1983)); see also Laurenzo v.

Miss. High Sch. Activities Ass’n, Inc., 708 F.2d 1038, 1042 (5th Cir. 1983) (analyzing this

standard for a “stay or injunction pending appeal”). A serious legal question is one with “far-

reaching effects” or which raises “public concerns” that extend beyond the parties to the case.

Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24-25 (5th Cir. 1992).

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Although the Court had denied Plaintiffs’ preliminary injunction motion, that motion

raised such serious legal questions. Plaintiffs’ challenge presents significant Fourteenth

Amendment questions concerning the disparate and discriminatory treatment of the

overwhelmingly Black citizens of Jackson. Those citizens will be the only Mississippians to be

stripped of their right to be served by municipal court prosecutors and judges who are selected by

officials who are locally elected and accountable. See Dkt 111 at 8-20. Furthermore, Plaintiffs

raise significant First Amendment concerns around H.B. 1020’s speech-chilling effects near the

State Capitol. Under H.B. 1020’s appointment provisions, politically active citizens in Jackson

charged with misdemeanor disturbance of the peace now face the threat of felony punishments

and the loss of the ability to run for office or serve on a jury due to the decisions of prosecutors

and a judge who are selected by state level officials rather than by locally elected and

accountable officials. See id. at 5, 14-15. 1 The resolution of these issues will affect the

constitutional rights of over 100,000 Black residents of Jackson. And considering H.B. 1020’s

“stark departure” from traditional Mississippi legal principles, see id. at 12, these serious

questions warrant an answer before the discriminatory appointment provisions are allowed to

take effect.

Plaintiffs’ appeal also presents serious legal questions as to whether Plaintiffs’

constitutional claim can be defeated by the doctrine of judicial immunity. Plaintiffs will argue

on appeal that judicial immunity applies only to adjudicative acts and not to the administrative

act of the Chief Justice in appointing a municipal court judge, an appointment that he has never

1
As we have demonstrated, there is no merit in the argument of the State Executive Defendants
that appellate review by an elected Circuit Court judge is an adequate substitute for locally
accountable prosecutors and judges at the first level of the criminal justice system. See Dkt. 123
at 3-4.

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made before. This consequential issue could determine whether Plaintiffs and others may

vindicate their constitutional rights in this case and others that may arise in the future in which

there is any “task assigned to the Chief Justice by the Mississippi State Legislature,” given the

scope of the Court’s ruling. Dkt. 127 at 3. Even if judicial immunity applies here, Plaintiffs’

motion for leave to file an amended complaint (Dkt. 80) proposed alternative defendants who

have no judicial immunity and are thus amenable to an injunction—John/Jane Doe 5, the

individual whom the Chief Justice will select under H.B. 1020 § 4(2); Greg Snowden, who, as

Director of the Mississippi Administrative Office of Courts, is responsible for compensating the

CCID Inferior Court judge under § 4(3) and designating a location for the CCID Inferior Court

under § 7; and Liz Welch, who, as Executive Director of the Mississippi Department of Finance

and Administration, shares this responsibility for designating a location for the CCID Inferior

Court to hold court under § 7.

Plaintiffs do not seek by this motion to re-litigate any of the foregoing questions in this

Court. Instead, they seek to maintain the status quo pending appeal.

As for the remaining considerations, all the factors that persuaded the Court to enter and

maintain a TRO with respect to § 1 of H.B. 1020 apply equally to § 4 and § 5, with the addition

of an additional weighty factor. The State Executive Defendants have argued that there is an

urgent public interest in allowing the CCID Inferior Court begin operations on January 1. But

the Legislature’s approach to the CCID belies any such urgency. In contrast to the appointments

to the Hinds County Circuit Court, which the Legislature required to be made within 15 days of

enactment of H.B. 1020, the Legislature did not provide for the CCID Inferior Court to come

into existence until more than eight months after enactment—i.e., on January 1, 2024. Thus,

there is even more justification for the Court to enjoin § 4 and § 5 pending the Court of Appeals’

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expedited consideration whether to enjoin those sections pending appeal than there was for the

Court’s decision to enjoin § 1 for six months prior to the Mississippi Supreme Court’s ruling that

section § 1 is unconstitutional. Furthermore, all of the purported benefits of the CCID Inferior

Court can be promptly realized if the Legislature in the upcoming session convening on January

8, 2024 simply provides that the judge and prosecutors for that court be selected in the same

manner as all other municipal court judges and prosecutors are selected—by officials who are

locally elected and accountable.

For the reasons above, the Court should preserve the status quo pending appellate review

of the serious questions plaintiffs have raised, by temporarily enjoining Attorney General Fitch

from appointing the CCID Inferior Court prosecutors under H.B. 1020 § 5(1), and temporarily

enjoining either (i) Chief Justice Randolph from appointing the CCID Inferior Court judge under

H.B. 1020 § 4(2), (ii) John/Jane Doe 5 from accepting appointment as the CCID Inferior Court

judge, and/or (iii) Liz Welch and Greg Snowden from taking any action to compensate the new

CCID Inferior Court judge.

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Respectfully submitted this 2nd day of January, 2024.

/s/ Mark H. Lynch /s/ Carroll Rhodes

Eric H. Holder, Jr.,* DC Bar # 303115 Carroll Rhodes, MS Bar # 5314
Megan A. Crowley,* DC Bar # 1049027 LAW OFFICES OF CARROLL RHODES
Gary S. Guzy,* DC Bar # 375977 POST OFFICE BOX 588
Mark H. Lynch,* DC Bar # 193110 HAZLEHURST, MS 39083
Brenden J. Cline,* DC Bar # 1021317 Telephone: (601) 894-4323
David Leapheart,* DC Bar # 1032122 Fax: (601) 894-1464
COVINGTON & BURLING LLP crhode@bellsouth.net
One CityCenter
850 Tenth Street NW Joe R. Schottenfeld,* DC Bar # 1735796
Washington, DC 20001 NATIONAL ASSOCIATION FOR THE
Tel: (202) 662-6000 ADVANCEMENT OF COLORED
Fax: (202) 662-6291 PEOPLE
eholder@cov.com 4805 Mt. Hope Drive
mcrowley@cov.com Baltimore, MD 21215
gguzy@cov.com Tel: (410) 580-5777
mlynch@cov.com Fax: (410) 358-9350
bcline@cov.com jschottenfeld@naacpnet.org
dleapheart@cov.com
Counsel for All Plaintiffs
Counsel for NAACP

*Pro Hac Vice