Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 1 of 13 IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT

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1 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 1 of 13 IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT CHARLES ARAUJO ET AL. PLAINTIFFS v. Civil Action No. G CH1:16-cv GOVERNOR PHIL BRYANT, THE MISSISSIPPI DEPARTMENT OF EDUCATION, AND THE JACKSON PUBLIC SCHOOL DISTRICT DEFENDANTS MIDTOWN PARTNERS, INC. AND MIDTOWN PUBLIC CHARTER SCHOOL S MOTION TO INTERVENE AS DEFENDANTS AND COMBINED MEMORANDUM BRIEF IN SUPPORT Pursuant to Rule 24 of the Mississippi Rules of Civil Procedure Midtown Partners, Inc. and Midtown Public Charter School file this Motion to Intervene as Defendants and Combined Memorandum Brief in Support of their motion. If permitted to intervene, Midtown would file an Answer substantially similar to the one attached hereto as Exhibit A. INTRODUCTION Movants, Midtown Partners, Inc. ( MPI ) and Midtown Public Charter School ( Midtown Public ) (collectively Midtown ), as the holder of a charter and the free public school operating under that charter, respectively, are directly impacted by the outcome of the instant suit. The aim of the suit is to strike down the funding source for public charter schools in Mississippi, like Midtown, depriving such schools of the resources they need to continue educating Mississippi students. Despite the direct financial impact on Midtown, the Plaintiffs did not include MPI or Midtown Public as defendants in this lawsuit, so Midtown seeks to intervene in this lawsuit, as a matter of right, or in the alternative, by permission of the Court, to protect its interests and advocate its legal rights to the Court. 1

2 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 2 of 13 INTERVENORS Midtown Partners, Inc. is a 501(c)(3) non-profit corporation registered for business in the State of Mississippi. Midtown Partners, Inc. s principal office is located in the Midtown Neighborhood at 329 Adelle Street in Jackson, Mississippi. It is the parent company of Midtown Public Charter School. In 2014, Midtown Partners, Inc. acquired an initial charter from the Mississippi Charter School Authorizer Board, pursuant to Miss. Code , et seq., also known as the Charter School Act ( CSA ), to open a free public charter school in Jackson, Mississippi. Midtown Public Charter School is a free public school, one of only three charter schools in Mississippi, located in the Midtown Neighborhood at 301 Adelle Street in Jackson, Mississippi. Midtown Public is managed by a Board of Trustees separate from the Board of Directors of its parent corporation, Midtown Partners, Inc., and the separate Board of Trustees is solely and exclusively charged with the management and oversight of the activities and affairs of the school. Currently, more than 160 fifth, sixth, and seventh grade students attend Midtown Public Charter School. As the Plaintiffs acknowledge in their complaint, Midtown is dependent upon public funding to operate a charter school to serves these students. LEGAL STANDARDS The very purpose of intervention is to allow interested parties to air their views so that a court may consider them before making potentially adverse decisions. Brumfield v. Dodd, 749 F.3d 339, 345 (5th Cir. 2014). As accurately stated in the Motion to Intervene filed by parents of children attending other charter schools operating in Jackson, the Mississippi Supreme Court has expressed a preference for intervention: We think there is much to be said for an overall attitude which gives the benefit of the doubt to the one seeking intervention, particularly where intervention 2

3 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 3 of 13 of right under Rule 24(a)(2) is claimed. Guaranty Nat l Ins. Co. v. Pittman, 501 So. 2d 377, 385 (Miss. 1987) (citing Corby Recreation, Inc. v. General Electric Co., 581 F.2d 175, 177 (8th Cir. 1978)). The Court continued by relying on the now-repealed Comments to Rule 24 in saying that [t]his attitude is expressed in the Comment to Rule 24 which describes the rules as represent[ing] a judgment that... justice demands that the interest of the absentee [intervenor] should predominate over the interests of the original parties and of trial convenience. Guaranty Nat l Ins. Co., 501 So. 2d at 385 (citing Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978); Fidelity Bankers Life Inc. Co. v. Wedco, 102 F.R.D. 41, 43 (D.Nev. 1984)). The Mississippi Supreme Court concluded by noting that: whether as a practical matter one has an interest that may be impaired or jeopardized is a matter no court will ever be able to determine as well as the intervenor himself. The court will never understand the facts as well as the intervenor, nor, because its neck is not on the line, may a court be expected to appreciate the impact of refusing intervention. Guaranty Nat l Ins. Co., 501 So. 2d at The Courts clear preference for intervention dictates that Midtown should be allowed to intervene in this matter so that the Court may consider its views before making a decision which could adversely affect Midtown Public Charter School including all of its employees, teachers, students, parents, and supporters by forcing the charter school to close its doors forever. ARGUMENT A. The Court Should Grant Midtown s Motion to Intervene as of Right, so that Midtown May Protect its Significant Legal and Financial Interests at Stake in this Case an action: Rule 24(a) states that [u]pon timely application, anyone shall be permitted to intervene in (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a 3

4 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 4 of 13 practical matter impair or impede his ability to protect that interest, unless the applicant s interest is adequately represented by existing parties. Miss. R. Civ. P. 24(a) (2015) (emphasis added). Movants here are claiming a right to intervene under Rule 24(a)(2). The four prerequisites for intervention under Rule 24(a)(2) are: (1) timely application; (2) an interest in the subject matter of the action; (3) an applicant who is so situated that disposition of the action may as a practical matter impair or impede his ability to protect his interest; and (4) an applicant s interest is not already adequately represented by existing parties. In re: Hood ex rel. State Tobacco Litigation, 958 So. 2d 790, 805 (Miss. 2007); see also Guaranty Nat l Ins. Co., 501 So. 2d at 381. [W]hen a movants satisfies [these] four separate requirements, the trial court shall allow intervention. Madison HMA, Inc. v. St. Dominic-Jackson Memorial Hospital, 35 So.3d 1209, 1215 (Miss. 2010) (citing Guaranty Nat l Ins. Co., 501 So. 2d at 381); In re Hood, 958 So. 2d at 806 ( One a would-be intervenor meets these requirements, the rule mandates that the would-be intervenor must be allowed to intervene). The Mississippi Supreme Court has also relied on other federal appellate court decisions in determining how the factors are to be balanced: The various components of the Rule are not bright lines, but ranges - not all interests are of equal rank, not all impairments are of the same degree, representation by existing parties may be more or less adequate, and there is no litmus paper test for timeliness. Application of the rule requires that its components be read not discreetly, but together. A showing that a very strong interest exists may warrant intervention upon a lesser showing of impairment or inadequacy of representation. Similarly, where representation is clearly inadequate, a lesser interest may suffice as a basis for granting intervention. Cummings v. Benderman, 681 So. 2d 97, 101 (Miss. 1996) (quoting Int 1 Paper v. Town of Jay, Me., 887 F.2d 338, 344 (1st Cir. 1989) (emphasis added)). 1. Midtown Public and MPI s Motion to Intervene is Timely The Mississippi Supreme Court uses four factors in determining whether a motion to intervene is timely: 4

5 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 5 of 13 (1) the length of time during which the would be intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would be intervenor s failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case; (3) the extent of the prejudice that the would be intervenor may suffer if his petition for leave to intervene is denied; and (4) the existence of unusual circumstances militating either for or against a determination that the application is timely. Guaranty Nat l Ins. Co., 501 So. 2d at 382 (citations omitted). The Mississippi Supreme Court went on to state that likelihood of success on the merits of the claim in intervention is not a factor which should be considered in determining whether a motion for leave to intervene is timely or should otherwise be granted.. Id. Similarly, timeliness is not limited to chronological considerations, but is to be determined from all the circumstances. In re Hood, 958 So. 2d at 806 (quoting Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977) (citations omitted)). Timeliness is not a word of exactitude or of precisely measurable dimensions. Vasser v. Bibleway M.B. Church, 50 So.3d 381, 385 (Miss. Ct. App. 2010) (quoting McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970)). While none of the factors are outcomedeterminative, satisfying one in some instances may be enough. In re Hood, 958 So. 2d at 806. Further, the requirement of timeliness is not a tool of retribution to punish a would-be intervenor, but rather a guard against prejudicing the original parties by the failure to apply sooner. McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970). Courts should allow intervention where no one would be hurt and greater justice could be attained. Id. Plaintiffs filed suit on July 11, 2016 and filed their First Amended Complaint on July 29, The State only recently answered the complaint on August 11. Now, less than three weeks after the first filed answer, Midtown seeks to intervene. No scheduling order has been entered in 5

6 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 6 of 13 this case, no discovery has been propounded, and no depositions have been taken or even noticed. The Plaintiffs Motion for Summary Judgment, which was just filed on August 22, has not yet been responded to, argued, or ruled upon. Indeed, the Court has not even conducted an initial status conference, which is currently scheduled for September 1. Therefore, neither Plaintiffs nor Defendants can point to any prejudice they would suffer as result of Midtown s being permitted to intervene. Comparatively, however, Midtown would suffer great prejudice should the Court deny its request to intervene and protect its legal and financial interests in this litigation. No one in the lawsuit currently represents the specific financial, business, or community interests of Midtown. If these interests are not adequately represented, Midtown faces the possibility of their school being closed, the result of which would be devastating to the financial investment the non-profit MPI made in this community, and Midtown Public would cease to exist. Because the existing parties will not suffer any prejudice while Midtown will face extreme prejudice if it is unable to represent its unique and specific interests, this timely Motion to Intervene should be granted. 2. Midtown has an Interest in the Subject Matter of the Litigation Movants claiming intervention of right must also show that they have an interest relating to the property or transaction which is the subject of the action. Miss. R. Civ. P. 24(a)(2). In interpreting this part of the Rule, the Mississippi Supreme Court has stated The wording of Rule 24, in our view, calls for an interpretation based in common sense and practicality. Legalistic formalism and mechanical jurisprudence simply do not fit the language or philosophy of the rule. All that is necessary is that [the Intervenor] establish an interest in the rights that are at issue in the litigation. Guaranty Nat l Ins. Co., 501 So. 2d at 384 (citing Hartford Accident and Indemnity Co. v. Crider, 58 F.D.R. 15, 18 (N.D. Ill. 1973)). The interest test is primarily a practical guide to disposing 6

7 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 7 of 13 of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process, Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 n. 10 (5th Cir.1992). Just last week, the Fifth Circuit recognized that it has continued to hold that economic interests can justify intervention when they are directly related to the litigation. Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Comm., --- F.3d WL (5th Cir. August 29, 2016). A trade group association representing holders of permits allowing liquor retailing in the state of Texas, sought to intervene in a lawsuit between Wal Mart and the Texas Alcoholic Beverage Commission ( the Commission ). The lawsuit alleged the regulatory system administered by the Commission operated exclusively for the benefit of the association's members in violation of the United States Constitution and the trade association sought to intervene in defense of the regulatory system. The court held that because the association, as a beneficiary of the system Wal-Mart challenged, had a protectable interest that may be impaired or injured by the outcome of the lawsuit between Wal Mart and the Commission and because the association showed that the Commission may not adequately represent its interests, it reversed the district court's denial of the association's motion to intervene. Id.; see also Sierra Club v. Espy, 18 F.3d 1202, 1207 (5th Cir. 1994) (concluding that movants had an interest sufficient to satisfy Rule 24, where they represented forest product industry who had legally protectable property interests in existing timber contracts threatened by a potential bar on even-aged management). Much like MPI s interest in the charter it holds which enables it to establish and operate Midtown Public, the Mississippi Supreme Court recognized a movant s capability to acquire an ownership interest in a Certificate of Need to operate an ambulatory service to be a claim or interest in property which is the subject of a pending action and which may be materially affected by the outcome of the litigation... and allowed intervention of the party seeking to obtain the 7

8 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 8 of 13 Certificate of Need. Madison HMA, Inc. v. St. Dominic-Jackson Memorial Hosp., 35 So. 3d 1209, 1216 (Miss. 2010) (quoting Miss. R. Civ. P. 24 cmt.). Likewise, other Mississippi state and district courts recognize that when a non-party s financial interests are implicated in civil litigation, those interests are sufficient to satisfy Rule 24 s requirements for intervention. See Mauck v. Columbus Hotel Co., 741 So. 2d 259, 263 (Miss. 1999) (acknowledging the lower court s decision to decision to allow the movant to intervene where it alleged a special financial interest in upholding a lease); Stallworth v. Bryant, 2016 WL , at *2 (S.D. Miss. July 19, 2016) (finding the Jackson Municipal Airport Authority plainly had legal and property interests in the subject matter of the suit and allowing its intervention). Movants have clear legally protectable property and financial interests that are threatened by the potential bar to the funding and operation of charter schools in Mississippi. The pending suit raises a constitutional challenge to the legislation that authorizes free, public charter schools in Mississippi and establishes the funding mechanism for such schools, including Midtown Public. By the Plaintiffs own estimation, a decision striking down the law will cut off over $890,000 of annual funding to Midtown Public for the operation of its charter school. The outcome of this litigation, therefore, will determine the viability of Midtown Public: if the statue is found unconstitutional, Midtown Public will be forced to close laying off its employees, teachers, and staff, and turning away its students and families as its funding source will be terminated. Likewise, MPI, a non-profit, will lose the significant economic and property investment it made, not to mention the time and energy spent setting up a charter school to improve its community, while relying on state law which allowed for the creation of Midtown Public. The disposition of the present action would put Midtown Public and MPI at a practical disadvantage in protecting 8

9 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 9 of 13 their interests, preventing them from protecting their economic investments and the very existence of Midtown Public. Accordingly, intervention of right is appropriate in this case. 3. Movants are so situated that Disposition of the Action May Impair or Impede Their Ability to Protect Their Interest The third requisite for intervention of right under Rule 24(a)(2) expressly adopts the idea of practicality, to-wit: the intervenor must be so situated that the disposition of the action may as a practical matter impair or impede his ability to protect... [his] interest. Guaranty Nat l Ins. Co., 501 So. 2d at 384. The Mississippi Supreme Court held that this factor is difficult to separate from the previous requirement of interest, such that the two are normally discussed and considered as one. Id. (citing 7C Wright, Miller & Kane, Federal Practice & Procedure 1908 (2d ed. 1986)). Further, mere availability of alternative legal forums (such as federal courts) is not sufficient to deny a motion to intervene. Id. (citations omitted). The court stated in Guaranty Nat l Ins. Co. that: The central purpose of this requisite is to allow intervention by those who might, in a practical sense, be disadvantaged by the disposition of the action. The rule is satisfied whenever disposition of the present action would put the would be intervenor at a practical disadvantage in protecting his interest. Guaranty Nat I Ins. Co., 501 So. 2d at 384. In a case seeking to enjoin the state of Louisiana from awarding school vouchers to students attending school in districts operating under federal desegregation order, the Fifth Circuit stated, [t]o be sure, there is as of yet no order requiring a change in the voucher program. But the parents do not need to establish that their interests will be impaired. Rather, they must demonstrate only that the disposition of the action may impair or impede their ability to protect their interests. Brumfield v. Dodd, 749 F.3d 339, 344 (5th Cir. 2014) (citing 6 MOORE S 24.03[3][a], at 24 41). It would indeed be a questionable rule that would require prospective intervenors to wait on 9

10 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 10 of 13 the sidelines until after a court has already decided enough issues contrary to their interests. The very purpose of intervention is to allow interested parties to air their views so that a court may consider them before making potentially adverse decisions. Id. at 345. The court determined that parents access to vouchers would be impaired because a decline in prospects for obtaining vouchers may well result if the district court holds that the Scholarship Program is subject to the desegregation order and held they were entitled to intervene as a matter of right. Id. Here, there is no doubt that a negative disposition in favor of the plaintiffs would practically and greatly disadvantage Midtown Public and MPI. Should the CSA be struck down, the funding allocated by the State for Midtown Public would be terminated. Midtown Public would be forced to cease operation, leading to disruption in the lives of students attending school there and a loss of employment for the teachers and staff working at Midtown Public. Similarly, MPI would lose its financial investment in the charter school it founded and its economic interest in the charter it holds. A decision striking down the CSA would immediately and drastically impede Midtown Public and MPI s ability to protect their interests and, therefore, the Court should grant their Motion to Intervene. 4. Midtown Public and MPI s Interests are Not Already Represented by Existing Parties The final requirement for intervention as a matter of right is that the applicant s interest must be inadequately represented by the existing parties to the suit. Miss. R. Civ. P. 24(a)(2). The applicant need only show that representation may be inadequate. Espy, 18 F.3d at 1207(citing Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972). The burden on the movant is not a substantial one. The movant need not show that the representation by existing parties will be, for certain, inadequate... [T]he applicant s burden on this matter should be viewed as minimal. Brumfield, 749 F.3d at

11 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 11 of 13 There are two presumptions of adequate representation. Brumfield at 345. The first arises where one party is a representative of the absentee by law. Id. Here there is no suggestion that the State is Midtown Public or MPI s legal representative. The second presumption arises when the would-be intervenor has the same ultimate objective as a party to the lawsuit, in which event the applicant for intervention must show adversity of interest, collusion, or nonfeasance on the part of the existing party to overcome the presumption. Id. The second presumption does not apply here. None of the existing parties to the lawsuit will represent the specific interests of Midtown, including the possibility of economic loss to Midtown and the impact on the Midtown community specifically. Plaintiffs seek to close all charter schools in Mississippi, including Midtown Public, through their lawsuit raising constitutional challenges. While, JPS is a named Defendant, its citywide obligations and financial interest (in exercising direct control over funds allocated for charter schools) are not aligned with Midtown s community-specific mission and interests, and, therefore, JPS cannot adequately represent Midtown s interests. The remaining defendants, Gov. Phil Bryant and the Mississippi Department of Education (jointly, the State Defendants ), are represented by the Attorney General s Office. While the Attorney General will defend the constitutionality of the CSA, the State s interests do not align precisely with Midtown s. In the Brumfied case, the court opined Although a private group does not always satisfy this prong just because a governmental entity is on the same side of an issue, in this case the parents have easily met their minimal burden. The state has many interests in this case maintaining not only the Scholarship Program but also its relationship with the federal government and with the courts that have continuing desegregation jurisdiction. The parents do not have the latter two interests; their only concern is keeping their vouchers. We cannot say for sure that the state s more extensive interests will in fact result in inadequate representation, but surely they might, which is all that the rule requires.we cannot say for sure that the state's more extensive interests will in fact result in inadequate representation, but surely they might, which is all that the rule requires. 11

12 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 12 of 13 Brumfield, 749 F.3d at 346. In Espy, Plaintiffs contended that the government adequately represented the movants interest because the interests were essentially identical. The court recognized, however, that the government must represent the broad public interest, not just the economic concerns of the movant. Given the minimal burden on the movants to satisfy this requirement, the court concluded that the government s representation of the intervenors interest was inadequate. Espy, 18 F.3d at 1208 (followed by Citizens for Holly Springs Nat. Forest v. U.S. Forest Service, 1999 WL , at *1 (N.D. Miss. May 10, 1999) ( where the relief sought by plaintiffs here would have an immediate, adverse financial effect on the [movant] school districts and municipalities. ). This Court should likewise acknowledge that the State Defendants obligation to represent the broad public interest, and not the specific community and financial concerns of Midtown Public and MPI, would result in an inadequate representation of Midtown s interests in this matter. The Court should grant Midtown s Motion to Intervene. B. Alternatively, the Court should grant Midtown permission to intervene so that it can protect its substantial legal and financial interests. Alternatively, if the Court were to find that Midtown has not met the prerequisites for intervention as a matter of right under Rule 24(a)(2), the Court should exercise its discretion under Rule 24(b)(2) to permit Midtown to intervene. Permissive intervention is appropriate upon timely application when an applicant s claims or defense and the main action have a question of law or fact in common. Miss. R. Civ. P. 24(b)(2). Unquestionably, as detailed above, Midtown has filed a timely application and its claims and interests have common questions of law and facts with the main action. Based upon the clear and present commonality of interests here, Movants respectfully request that the Court grant them the right to intervene so that they may protect their legal and 12

13 Case: 25CH1:16-cv Document #: 26 Filed: 09/01/2016 Page 13 of 13 financial interests which are at stake in this lawsuit to protect the very existence of their neighborhood public charter school. CONCLUSION Midtown s timely Motion to Intervene should be granted. Midtown has interests that will not otherwise be represented by any other defendant in this case, and Midtown should be allowed to make their views known to the Court prior to a decision which could adversely affect them. Midtown, therefore, respectfully requests that the Court grant its Motion to Intervene. Dated, September 1, Respectfully submitted, MIDTOWN PARTNERS, INC. AND MIDTOWN PUBLIC CHARTER SCHOOL /s/ Michael J. Bentley Michael J. Bentley (MSB ) Molly M. Walker (MSB ) OF COUNSEL: BRADLEY ARANT BOULT CUMMINGS LLP One Jackson Place 188 East Capitol Street, Suite 400 Jackson, MS CERTIFICATE OF SERVICE I, the undersigned, Michael J. Bentley, hereby certify that I have filed the foregoing with the Clerk of the Court using the ECF system, which sent notification to all counsel of record. //s/ Michael J. Bentley Michael J. Bentley 13

14 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 1 of 13 IN THE CHANCERY COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT CHARLES ARAUJO ET AL. PLAINTIFFS v. Civil Action No. G CH1:16-cv GOVERNOR PHIL BRYANT, THE MISSISSIPPI DEPARTMENT OF EDUCATION, AND THE JACKSON PUBLIC SCHOOL DISTRICT DEFENDANTS and MIDTOWN PARTNERS, INC. AND MIDTOWN PUBLIC CHARTER SCHOOL INTERVENORS MIDTOWN PARTNERS, INC. AND MIDTOWN PUBLIC CHARTER SCHOOL S [PROPOSED] ANSWER AND DEFENSES TO PLAINTIFFS FIRST AMENDED COMPLAINT COME NOW Midtown Partners, Inc. and Midtown Public Charter School (collectively, Midtown ) and file their answer and defenses as follows: FIRST DEFENSE The complaint should be dismissed for failure to state a claim. SECOND DEFENSE Some or all of the claims are barred by the applicable statute of limitations. THIRD DEFENSE Some or all of Plaintiffs claims are barred by their lack of standing, the mootness doctrine, laches, as unripe for judicial review, by Plaintiffs lack of prudential standing, and as insufficient to warrant an award of injunctive or declaratory relief.

15 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 2 of 13 FOURTH DEFENSE Midtown pleads the defenses of failure to join an indispensable party, collateral estoppel, equitable estoppel, judicial estoppel, and res judicata. FIFTH DEFENSE Some or all of Plaintiffs claims are barred by the Mississippi Tort Claims Act ( MTCA ), , et seq., including without limitation, the notice requirements, the prohibition against individual liability, and the applicable statute of limitations. SIXTH DEFENSE Midtown affirmatively asserts all defenses to which it is, or may become, entitled to through further discovery, pursuant to Miss. R. Civ. P. 8 and/or 12, or otherwise. ANSWER Without waiving the above defenses, Midtown answers the complaint as follows: 1. Midtown admits that this is a state constitutional challenge to the Mississippi Charter Schools Act of Midtown denies, however, that Plaintiffs are entitled to any relief whatsoever. Further, the statutory provisions cited within Paragraph 1 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. The allegations contained in Paragraph 1 of the Complaint also constitute a legal conclusion that requires no answer. To the extent an answer is required to the allegations, Midtown denies these allegations. 2. The statutory and constitutional provisions cited within Paragraph 2 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. The allegations contained in Paragraph 2 of the Complaint also constitute a legal conclusion that requires no answer. To the extent an answer is required to these allegations, Midtown denies these allegations.

16 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 3 of The statutory and constitutional provisions cited and/or referred to within Paragraph 3 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. The allegations contained in Paragraph 3 of the Complaint also constitute a legal conclusion that requires no answer. To the extent an answer is required to these allegations, Midtown denies these allegations. 4. Midtown admits that charter schools Reimagine Prep and Midtown Public are operating in Mississippi pursuant to the Mississippi Charter Schools Act, including the funding provisions therein, and that these schools are located within the boundaries of the Jackson Public School District. As to the remainder of the allegations stated in Paragraph 4, the allegations are vague and ambiguous and, on that basis, Midtown denies the allegations. 5. The documents referenced in, or used to generate the allegations in, Paragraph 5 of the Complaint speak for themselves. Any and all remaining allegations contained in Paragraph 5 are denied. 6. Midtown admits, upon information and belief, during the school year, a third charter school will open within the Jackson Public School District s geographic boundaries and that the charter schools will operate pursuant to the Mississippi Charter Schools Act. All remaining allegations in Paragraph 6 are denied. 7. Midtown denies the allegations in the first sentence of Paragraph 7. Midtown lacks sufficient information or belief to admit or deny the remaining allegations in Paragraph 7 and hereby denies those allegations. 8. Midtown denies the allegations in Paragraph 8. JURISDICTION AND VENUE 9. It is admitted that Plaintiffs seek an injunction in this case, but all remaining allegations contained in Paragraph 9 of the Complaint are denied as calling for legal conclusions.

17 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 4 of It is admitted that this suit is brought against the State, but all remaining allegations contained in Paragraph 10 of the Complaint are denied as calling for legal conclusions. PARTIES 11. Midtown lacks sufficient information or belief to admit or deny the allegations contained in Paragraph 11 of the Complaint and hereby denies those allegations. 12. Midtown lacks sufficient information or belief to admit or deny the allegations contained in Paragraph 12 of the Complaint and hereby denies those allegations. 13. Midtown lacks sufficient information or belief to admit or deny the allegations contained in Paragraph 13 of the Complaint and hereby denies those allegations. 14. Midtown lacks sufficient information or belief to admit or deny the allegations contained in Paragraph 14 of the Complaint and hereby denies those allegations. 15. Midtown lacks sufficient information or belief to admit or deny the allegations contained in Paragraph 15 of the Complaint and hereby denies those allegations. 16. The allegations in Paragraph 16 are not directed to Midtown, and therefore no response is required. 17. The allegations in Paragraph 17 are not directed to Midtown, and therefore no response is required. Midtown further states that the statutory provisions cited within Paragraph 17 are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 18. The allegations in Paragraph 18 are not directed to Midtown, and therefore no response is required. To the extent that a response is required, Midtown admits that the charter schools currently operating in Mississippi are located within the Jackson Public School District s geographic boundaries. However, the statutory provisions cited within Paragraph 18 are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions.

18 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 5 of 13 FACTS I. The statute cited and referred to within Paragraph I is the best evidence of its content, and Midtown denies Plaintiffs characterizations of the Mississippi Charter Schools Act. 19. Midtown hereby re-alleges and incorporates herein its responses to Paragraphs 1 18 in response to Paragraph 19 of the Complaint. 20. It is admitted that the Charter Schools Act was passed by the Mississippi Legislature and signed into law by the Governor in 2013, but the statutory provisions cited within Paragraph 20 are the best evidence of their content. 21. The statutory provisions of the Charter Schools Act referred to within Paragraph 21 are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 22. The statutory provisions of the Charter Schools Act cited within Paragraph 22 are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 23. The statutory provisions of the Charter Schools Act cited within Paragraph 23 are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 24. The statutory provisions of the Charter Schools Act cited within Paragraph 24 are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 25. The statutory provisions of the Charter Schools Act cited within Paragraph 25 are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions.

19 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 6 of Midtown denies the allegations contained in Paragraph 26 as stated. Further, the Mississippi Charter Schools Act is the best evidence of its content, and Midtown denies Plaintiffs characterizations of that statute. II. The Mississippi Constitution is the best evidence of its content, and the allegations contained in Section II of the Complaint constitute a legal conclusion that requires no answer. A. The Mississippi Constitution is the best evidence of its content, the allegations contained in Section II(A) of the Complaint constitute a legal conclusion that requires no answer, and Plaintiffs characterization of Section 206 otherwise is denied. 27. The constitutional section cited within Paragraph 27 of the Complaint is the best evidence of its content, and Midtown denies Plaintiffs characterizations of that constitutional section. 28. The Mississippi Supreme Court case cited within Paragraph 28 of the Complaint is the best evidence of its content, and Midtown denies Plaintiffs characterizations of that case decision. 29. The constitutional section cited within Paragraph 29 of the Complaint is the best evidence of its content, and Midtown denies Plaintiffs characterizations of that constitutional section. 30. The statutory provisions of the Charter Schools Act cited within Paragraph 30 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 31. The allegations contained in Paragraph 31 of the Complaint constitute a legal conclusion that requires no answer. To the extent an answer is required, Midtown denies the allegations contained within paragraph 31.

20 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 7 of 13 B. The Mississippi Constitution is the best evidence of its content, the allegations contained in Section II(B) of the Complaint constitute a legal conclusion that requires no answer, and Plaintiffs characterization of Section 208 otherwise is denied. 32. The constitutional section cited within Paragraph 32 of the Complaint is the best evidence of its content, and Midtown denies Plaintiffs characterizations of that constitutional section. 33. The Mississippi Supreme Court case cited within Paragraph 33 of the Complaint is the best evidence of its content, and Midtown denies Plaintiffs characterizations of that case decision. 34. The Mississippi Supreme Court case cited within Paragraph 34 of the Complaint is the best evidence of its content, and Midtown denies Plaintiffs characterizations of that case decision. 35. The statutory provisions of the Charter Schools Act cited within Paragraph 35 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 36. The allegations contained in Paragraph 36 of the Complaint constitute a legal conclusion that requires no answer. To the extent an answer is required, Midtown denies the allegations contained within paragraph 36. III. Midtown denies Plaintiffs characterizations of the Mississippi Charter Schools Act as made in Section III of the Complaint. 37. Midtown admits that charter schools are public schools. Because of the vagueness and ambiguity of the remaining allegations in Paragraph 37, Midtown lacks knowledge or information sufficient to form a belief as to the truth of those allegations, and therefore the remaining allegations in Paragraph 37 are denied.

21 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 8 of The statutory provisions cited within Paragraph 38 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 39. The statutory provisions cited within Paragraph 39 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 40. The statutory provisions cited within Paragraph 40 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 41. The statutory provisions cited within Paragraph 41 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 42. The statutory provisions cited within Paragraph 42 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. IV. Midtown denies the allegations contained in Section IV of the Complaint. 43. Midtown lacks sufficient information or belief to admit or deny the allegations contained in Paragraph 43 of the Complaint and hereby denies those allegations. 44. Midtown lacks sufficient information or belief to admit or deny the allegations contained in Paragraph 44 of the Complaint and hereby denies those allegations. Midtown further states that any documents referenced in, or used to generate the allegations in, Paragraph 44 of the Complaint speak for themselves. 45. Midtown lacks sufficient information or belief to admit or deny the allegations contained in Paragraph 45 of the Complaint and hereby denies those allegations. Midtown further states that any documents referenced in, or used to generate the allegations in, Paragraph 45 of the Complaint speak for themselves. 46. Midtown lacks sufficient information or belief to admit or deny the allegations contained in Paragraph 46 of the Complaint and hereby deny those allegations. 47. The allegations contained in Paragraph 47 of the Complaint are admitted.

22 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 9 of Denied as stated. Midtown admits only that any documents referenced in, or used to generate the allegations in, Paragraph 48 of the Complaint speak for themselves. Any and all remaining allegations contained in Paragraph 48 are denied. 49. Denied as stated. Midtown admits only that any documents referenced in, or used to generate the allegations in, Paragraph 49 of the Complaint speak for themselves. Any and all remaining allegations contained in Paragraph 49 are denied. 50. Denied as stated. Midtown admits only that any documents referenced in, or used to generate the allegations in, Paragraph 50 of the Complaint speak for themselves. Any and all remaining allegations contained in Paragraph 50 are denied. 51. Denied as stated. Midtown admits only that any documents referenced in, or used to generate the allegations in, Paragraph 51 of the Complaint speak for themselves. Any and all remaining allegations contained in Paragraph 51 are denied. 52. Midtown admits, upon information and belief, during the school year a new charter school is set to open. The remaining allegations in Paragraph 52 are denied. 53. The allegations contained in Paragraph 53 are denied. V. The allegations contained in Section V of the Complaint are denied. 54. The allegations contained in Paragraph 54 are denied. 55. Midtown lacks sufficient information or belief to admit or deny the allegations contained in Paragraph 55 of the Complaint and hereby denies those allegations. 56. The statutory provisions cited within Paragraph 56 of the Complaint are the best evidence of their content, and Midtown denies Plaintiffs characterizations of those provisions. 57. The allegations contained in Paragraph 57 are denied.

23 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 10 of 13 CLAIMS FOR RELIEF CLAIM NO. 1: DECLARATORY AND INJUNCTIVE RELIEF FOR THE VIOLATION OF SECTION 206 OF THE MISSISSIPPI CONSTITUTION 58. Midtown hereby re-alleges and incorporates herein its responses to Paragraphs 1 57 in response to Paragraph 58 of the Complaint. 59. The constitutional section cited within Paragraph 59 of the Complaint is the best evidence of its content, and Midtown denies Plaintiffs characterizations of that provision. 60. The allegations contained in Paragraph 60 of the Complaint constitute a legal conclusion that requires no answer. To the extent an answer is required, Midtown denies the allegations contained within paragraph The allegations contained in Paragraph 61 of the Complaint constitute a legal conclusion that requires no answer. To the extent an answer is required, Midtown denies the allegations contained within Paragraph Midtown denies the allegations in Paragraph 62 and affirmatively states that the Plaintiffs are not entitled to any relief in any form. CLAIM NO. 2: DECLARATORY AND INJUNCTIVE RELIEF FOR THE VIOLATION OF SECTION 208 OF THE MISSISSIPPI CONSTITUTION 63. Midtown hereby re-alleges and incorporates herein their responses to Paragraphs 1 62 in response to Paragraph 63 of the Complaint. 64. The constitutional section cited within Paragraph 64 of the Complaint is the best evidence of its content, and Midtown denies Plaintiffs characterizations of that provision. 65. The allegations contained in Paragraph 65 of the Complaint constitute a legal conclusion that requires no answer. To the extent an answer is required, Midtown denies the allegations contained within Paragraph 65.

24 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 11 of The allegations contained in Paragraph 66 of the Complaint constitute a legal conclusion that requires no answer. To the extent an answer is required, Midtown denies the allegations contained within Paragraph Midtown denies the allegations in Paragraph 67 and affirmatively states that the Plaintiffs are not entitled to any relief in any form. PRAYER FOR RELIEF 68. There is no allegation in Paragraph 68 of the Complaint to admit or deny. However, Midtown affirmatively denies that the Plaintiffs are entitled to any relief in any form. 69. Midtown denies the allegations in Paragraph 69 and affirmatively states that the Plaintiffs are not entitled to any relief in any form. 70. Midtown denies the allegations in Paragraph 70 and affirmatively states that the Plaintiffs are not entitled to any relief in any form. 71. Midtown denies the allegations in Paragraph 71 and affirmatively states that the Plaintiffs are not entitled to any relief in any form. All allegations not specifically admitted above are hereby denied. WHEREFORE, Midtown prays that the complaint will be dismissed with prejudice and with all costs, fees, and expenses taxed to Plaintiffs. Respectfully submitted this the 1st day of September, MIDTOWN PARTNERS, INC. AND MIDTOWN PUBLIC CHARTER SCHOOL /s/ Michael J. Bentley Michael J. Bentley (MSB ) Molly M. Walker (MSB ) BRADLEY ARANT BOULT CUMMINGS LLP One Jackson Place 188 East Capitol Street, Suite 400 Jackson, MS 39201

25 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 12 of 13 Counsel for Midtown Partners, Inc. and Midtown Public Charter School

26 Case: 25CH1:16-cv Document #: 26-1 Filed: 09/01/2016 Page 13 of 13 CERTIFICATE OF SERVICE I, the undersigned, Michael J. Bentley, hereby certify that I have filed the foregoing with the Clerk of the Court using the ECF system, which sent notification to all counsel of record. //s/ Michael J. Bentley Michael J. Bentley