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Case: 25CI1:20-cr-00052-EFP Document #: 5 Filed: 02/10/2020 Page 1 of 6

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI


FIRST JUDICIAL CIRCUIT

State of Mississippi Plaintiff

v. Cause No.: 25CIl:20-cr-00052-EFP

NANCY WHITTEN NEW Defendant

EMERGENCY MOTION TO VACATE ORDER FOR INJUNCTIVE RELIEF

Mississippi Community Education Center (“MCEC”) moves the Court to immediately

vacate its Order For Injunctive Relief (“Order’) signed on February 4, 2020 freezing MCEC’s

bank account (Dkt. No. 3). MCEC files as a Real Party in Interest related to this Order as it is

not a party to the actions for which this Order has been docketed.1 MCEC has suffered and will

continue to suffer irreparable harm should this Order remain in place. In securing this Order, the

Office of the State Auditor failed to travel under any rule or authority to obtain injunctive relief

to freeze a bank account. From the face of the publicly filed Order, it appears the State did not

institute a civil proceeding or file a petition although the Order appears to grant civil injunctive

relief. If the State were seeking civil injunctive relief, it failed to meet its burden as required by

Mississippi Rule of Civil Procedure (“M.R.C.P.”) 65. If the Office of the State Auditor was

attempting to obtain some sort of criminal relief, there is no authority cited for it to do so.

Simply, the Order obtained is not legally valid. In support of its motion, MCEC submits the

following:

1. Upon information and belief, no civil proceedings were instituted and no petition

seeking an injunction was prepared in order to secure the Order.

1 Upon information and belief, the Order in question was obtained by the Office of the State Auditor under
no civil or criminal proceeding, but was later filed in this action and various other criminal actions pending in other
courts.
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2. The face of the Order suggests it was obtained February 4, 2020, which was two

days prior to the tiling of this criminal matter on February 6, 2020.

3. If a petition was prepared and submitted, MCEC’s counsel was not served, and

the petition was not tiled in the Mississippi Electronic Courts (“MEC”) system.

4. Even if the State had initiated a civil proceeding to seek injunctive relief and filed

a petition, the State failed to follow and to meet its burden for relief as required by M.R.C.P. 65.

5. M.R.C.P. 65 states: “No preliminary injunction shall be issued without notice to

the adverse party.” M.R.C.P. 65(a)(1).2 The Order was presented to the Court ex parte without

any notice to MCEC or its counsel.

6. In addition, the State failed to adhere to the standards of Rule 65 when it: (1)

failed to provide proof of actual knowledge or sworn statements supporting the allegations for

injunction via affidavit or other means on the record; and (2) failed to state why injunctive relief

was required on the record.

7. The Order, prepared by the Office of the State Auditor, fails to meet the

requirements of M.R.C.P. 65(d)(2) which mandates:

Every order granting an injunction shall set forth the reasons for its
issuance; shall be specific in terms; shall describe in reasonable detail and
not by reference to the complaint or other document the act or acts sought
to be restrained; and is binding only upon the parties to the action, their
officers, agents, servants, employees, and attorneys, and upon those
persons in active concert or participation with them who receive actual
notice of the order by personal service or otherwise.

8. There were no such parties or proceeding for which the Order references or was

2 In some cases, a party seeking a restraining order might not provide notice. However, this case
does not involve a restraining order. See M.R.C.P 65(b). (Where temporary restraining orders are
granted with no notice, a party must present “specific facts” by “affidavit” or “verified
complaint” that “immediate and irreparable injury, loss or damage will result” and must certify
to the Court “in writing” its efforts to give notice or reasons supporting why notice should not be
given.)
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presented under. Therefore, there is no authority for any party to be bound. In addition, there is

no specificity as to what exact funds are contained within this account, where they came from,

and what they are intended for. More importantly, there is no authority cited in the Order that

vests power in the Hinds County Circuit Court to freeze a bank account via an “Order for

Injunctive Relief’ prepared by the Office of the State Auditor.

9. The five-sentence Order failed to meet even the minimum requirements under the

rule. See Georgia Pacific Corp. v. Armstrong (Miss. 1984) 451 So.2d 201, 207 (An injunction

contained in a decree should be complete within itself, containing no extraneous references, and

leaving open no matter or description or designation out of which contention may arise as to the

meaning.); see also Invesat Corp. v. Harrison Enterprises, Inc., 386 So. 2d 721, 722 (Miss.

1980) (voiding of injunctive order is proper where party fails to follow procedure for injunctive

relief).

10. After obtaining the Order styled as civil injunctive relief, it was later docketed in

this criminal matter as well as three other criminal cases—20-cr-53, 20-cr-55, and 20-cr-56.

(MEC Dkt. No. 3). Neither MCEC nor the Office of the State Auditor were parties to this

criminal action or the other three at the time this Order was filed in this case.

11. In addition, the Order was not sealed when filed and so was made available to the

public on MEC. MCEC’s bank account number was not redacted by the State prior to its public

filing. This now publicly-available Order lists MCEC’s private bank account number.

12. This is a violation of MEC Administrative Procedures (June 1, 2019), Section 9,

Obligation to Protect Sensitive and Private Information, which states, in part, “counsel shall

refrain from including . . . financial account numbers” in public filings, (emphasis added).

Moreover, this action violated MCEC’s privacy rights.

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13. If allowed to stand, the subject Order would violate MCEC’s due process rights

and equal protection guaranteed by the Mississippi and United States Constitution. Miss. Const.

Art. 3 § 14; U.S. Const, amends. V and XIV. These acts also violate the Fourth Amendment’s

prohibition against unreasonable searches and seizures by government actors. Miss. Const. Art.

3. § 23; U.S. Const, amend. IV.

14. MCEC is harmed by the public dissemination of its bank account number. This

breach worsened by the publicity generated by the State in this case. It is impossible to tell how

many members of the public retrieved MCEC’s bank account number and what uses they will

make of it, but it is a certainty that MCEC will be forced to spend money to prevent data

breaches, identity theft, and otherwise mitigate damages.

15. MCEC has suffered and will continue to suffer irreparable harm by the Court’s

Order seizing its assets without due process. MCEC’s inability to access its funds will affect its

ability to pay employees and will disrupt the provision of vital social services and community-

based services in 42 Mississippi counties. The funds in this account constitute monies to be

spent on programs separate and apart from the Mississippi Department of Human Services.

16. While MCEC is making its best efforts to keep these programs open and serving

its clients, it cannot do so without the necessary operating funds.

17. Intervention in this criminal case is MCEC’s best chance for the immediate relief

it seeks since the offending Order was entered in this action.

RELIEF REQUESTED

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Case: 25CI1:20-cr-00052-EFP Document #: 5 Filed: 02/10/2020 Page 5 of 6

Mississippi Community Education Center requests that this Court:

1. Immediately enter an order vacating its Order for Injunctive Relief (Dkt. No. 3);

2. That the publicly-filed Order for Injunctive Relief (MEC 3) be immediately

sealed to protect MCEC’s private financial information;

3. That the Court take the same remedial acts for the same Order that was entered in

cases 20-cr-53, 20-cr-55, and 20-cr-56;

4. That the Clerk’s office takes further action to prevent further harmful disclosure

of MCEC’s private bank account number;

5. Other relief that the Court deems just.

This the 10th day of February, 2020.

Respectfully submitted,

Mississippi Community Education Center

By: /s/ Charles Griffin___________


CHARLES GRIFFIN (MSB NO. 5015)
AMANDA BARBOUR (MSB NO. 99119)
FRANKLIN D. ROSENBLATT (MSB NO. 106029)

OF COUNSEL:

BUTLER SNOW LLP


Suite 1400
1020 Highland Colony Park
Ridgeland, MS 39157
Post Office Box 6010
Ridgeland, MS 39158-6010
Tel: (601) 985-4494
Fax: (601) 985-4500
Amanda.barbour@butlersnow.com
Charles.griffin@butlersnow.com
Franklin.rosenblatt@butlersnow.com

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Case: 25CI1:20-cr-00052-EFP Document #: 5 Filed: 02/10/2020 Page 6 of 6

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document has been served by electronic mail on

counsel for the parties shown below:

JODY E. OWENS, II
Hinds County District Attorney’s Office
iodyowens@gmail.com

Dated: February 10, 2020.

By: /s/ Charles Griffin___________


~ CHARLES GRIFFIN (MSB NO. 5015)
51551763. v 1

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Case: 25CI1:20-cr-00052-EFP Document #: 3 Filed: 02/06/2020 Page 1 of 2

IN THE pt JUDICIAL DISTRICT OF IDNDS COUNTY, MISSISSIPPI

In Re: Nancy New and Zach New

ORDER FOR INJUNCTIVE REUEF

THIS CAUSE, this day came to be heard on the Petition of the Office of the
State Auditor, by and through Mary Ford, Senior Staff Attorney. The Court having
heard and considered the Petition, finds as follows:
5. The bank account of the MS Community Education Center, Regions
bank account number# is in the sole control of Nancy
New and Zach New
6. The bank account contains State funds.
7. State funds have been and are currently being misused for personal
use by Nancy New and Zach New
8. To stop the embezzlement of these funds, the bank account must be
frozen immediately.
9. The Court therefore orders the bank account of Nancy New and
Zach New be frozen.

SO ORDERED on this the f day of February, 2020

CIRCUIT COURT JUDGE


Case: 25CI1:20-cr-00052-EFP Document #: 3 Filed: 02/06/2020 Page 2 of 2

Prepared by:

Mary Ford
Senior Staff Attorney
Office of the State Auditor
P. 0. Box 956
Jackson, MS 39205
Mary.Ford@osa.ms.gov
MSB# 104040
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