City of Jackson, Mississippi v. Carolyn Greene ( 2003 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-IA-00385-SCT
CITY OF JACKSON, JACKSON CITY COUNCIL
AND THE JACKSON PUBLIC SCHOOL DISTRICT
v.
CAROLYN GREENE AND CHARLES TISDALE
DATE OF JUDGMENT: 2/26/2003
TRIAL JUDGE: HON. TOMIE T. GREEN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: SAMUEL L. BEGLEY
TERRY WALLACE
ELIZABETH LEE MARON
W. DAVID WATKINS
ATTORNEY FOR APPELLEES: IMHOTEP ALKEBU-LAN
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND RENDERED - 04/08/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE SMITH, C.J., COBB, P.J., AND CARLSON, J.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. On February 14, 2003, two parents who have children in the Jackson Public School District
(“JPS”), Carolyn Greene and Charles Tisdale (“parents”), filed a bill of exceptions pursuant to Miss. Code
Ann. § 21-39-11 (Rev. 2001) & § 11-75-51 (Rev. 2002) in the Hinds County Circuit Court, First Judicial
District. The bill of exceptions alleged that Council members Leslie McLemore and William "Bo" Brown
should have recused themselves from a Jackson City Council vote on February 4, 2003, which confirmed
the Mayor’s appointment of two members to the JPS Board of Trustees. Moreover, the bill of exceptions
alleged that there would have been no quorum to support the vote if McLemore and Brown had recused
themselves. The bill sought reversal of this vote. The parents also filed a motion for temporary restraining
order and preliminary injunction.
¶2. The circuit court granted a temporary restraining order after a hearing. The circuit court concluded
that the parents had “substantially met the criteria for [the] court to grant a temporary restraining order.”
The court ordered the Council to “maintain the status quo of the school board's membership as of February
3, 2003, prior to the mayor and city council's approval of two (2) new board members.”
¶3. The circuit court held a hearing on the parents’ motion for preliminary injunction. At the hearing,
the court allowed two witnesses to testify; moreover, the court considered various documents submitted
by the parties.1 After the hearing, the circuit court granted the parents' motion for preliminary injunction.
The circuit court claimed that it limited its ruling to “whether the February 4, 2003 vote by the Jackson City
Council should be set aside inasmuch as there was no proper quorum to sustain the validity of the
confirmation of Jonathan Larkins and Maggie Benson White.” However, the court also held that
Councilman Brown's attempt to revoke his recusal could not be legally accomplished pursuant to this
Court's holding in Frazier v. State ex rel. Pittman, 504 So. 2d 675, 695 (Miss. 1987). Moreover,
the court concluded that no quorum existed to sustain the Council's February 4, 2003, vote. The court
ordered that the “status quo of the Board's membership as of February 3, 2003 remain unchanged until
such time as the eligible councilpersons can properly establish a quorum and confirm the Mayor's
appointments to the JPS school board.” Moreover, the circuit court held:
1
Specifically, the court heard testimony from Eddie Jean Carr, the City Clerk, and William “Bo”
Brown. In addition, the court considered affidavits submitted by the parents, as well as Mississippi
Ethics Commission advisory opinions.
2
[C]ouncil members who had not recused as of February 3, 2003, thereby making them
eligible to establish a quorum and vote to confirm the school board appointments
are...Crisler, Barrett-Simon, McLemore, and Stokes....[T]he court opines that Councilman
Brown should be held precluded from the vote and quorum consistent with his (four)
recusals between January 13th and January 28, 2003.
The circuit court found that the necessary requirements for a preliminary injunction had been satisfied.
Furthermore, the circuit court denied the City's motion to dismiss and dismissed JPS by agreement of the
parents and JPS.
¶4. The circuit court denied the City's motion for a stay of the preliminary injunction and an order
granting interlocutory appeal. This Court granted the City's petition for interlocutory appeal and a stay of
the preliminary injunction pending the Court's determination of the appeal. See M.R.A.P. 5 & 8.
¶5. We find that the bill of exceptions alleges ethical misconduct, and the circuit court addressed this
issue and ruled upon it. While any person may file a complaint with the Mississippi Ethics Commission
(“Commission”), under our law, only local district attorneys, the Attorney General, or the Commission itself
may file direct actions in court challenging the ethical conduct of public officials. As a result, we find that
the parents are not “person[s] aggrieved” for purposes of Miss. Code Ann. § 11-75-51, and they do not
meet the statutory requirements to file a bill of exceptions under the facts presented here. The parents’ sole
remedy for the alleged ethical violations was to file a complaint with the Commission. The circuit court
erred in concluding otherwise, and we reverse and render.
FACTS
¶6. Harvey Johnson, Mayor of the City of Jackson, Mississippi, nominated Jonathan Larkin and
Maggie Benson White to serve on the Jackson Public Schools Board of Trustees ("Board"). The
confirmation hearing on the appointments was set for January 13, 2003. On that date, six of the seven
Jackson City Council (“Council”) members were present: Ben Allen, William "Bo" Brown, Marshand
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Crisler, Betty Dagner-Cook, Leslie McLemore, and Margaret Barrett-Simon. Councilman Kenneth
Stokes absented himself from the proceeding. Moreover, Council members Allen, Brown,2 and
Dagner-Cook recused themselves from the hearing, leaving only three members present. Because the three
remaining members did not constitute a quorum, there was no vote on the school board appointments. The
vote was therefore rescheduled to take place during the Council's regular meeting on January 14, 2003.
¶7. On January 14, 2003, the same members of the council were present. Council members Allen,
Cook, and Brown again recused themselves from the confirmation hearing. Because there was no quorum,
there was no vote on the appointments. The hearing was rescheduled two additional times for January 21,
2003, and January 28, 2003. According to the City Clerk, there was no vote on the school board
appointments on either date. Moreover, the Clerk's notes did not reflect the reason for rescheduling the
confirmation vote, and the Clerk could not recall whether any councilperson recused at those hearings. The
confirmation hearing was therefore rescheduled for February 4, 2003. On that date, Councilman Brown
participated in the confirmation hearing and did not recuse himself. Council members Crisler, McLemore,
and Barrett-Simon voted to confirm the appointments. Councilman Brown did not vote for or against the
confirmations - rather, he raised his hand to indicate that he abstained from the vote. Thus, the
appointments were confirmed because three of the four Council members present voted in favor of the
appointments.
¶8. Carolyn Greene and Charles Tisdale are residents of the City of Jackson, Mississippi ("the City").
Both have a child enrolled in the JPS. Aggrieved by the judgment below, the City of Jackson, Jackson
2
The record indicates that Brown’s wife and daughter are both employed by the Jackson Public
Schools (JPS).
4
City Council, and JPS (collectively, “the City”) raise seven issues on appeal. Because issues one and two
are dispositive of this action, we need not consider the remaining assignments of error.
DISCUSSION
¶9. “When the issues presented on an interlocutory appeal are questions of law, this Court will review
those issues de novo.” Sanderson Farms, Inc. v. Gatlin, 848 So. 2d 828, 841 (Miss. 2003). The first
two issues in this case are intertwined and present questions of law; therefore, we will consider them
together, applying the de novo standard.
I. WHETHER THE PARENTS HAVE STANDING TO FILE A BILL
OF EXCEPTIONS IN THIS CASE.
II. WHETHER THE PARENTS HAVE STANDING TO CHALLENGE
ETHICAL CONDUCT OF MEMBERS OF THE CITY COUNCIL.
¶10. The parents initiated this action pursuant to Miss. Code Ann. § 11-51-75, which authorizes “[a]ny
person aggrieved” by a judgment or decision of a city to appeal to the circuit court utilizing a bill of
exceptions. In considering an appeal initiated pursuant to Miss. Code Ann. § 11-51-75, this Court has
held that any “act of a municipality which leaves a party aggrieved is appealable to the circuit court where
all of the issues of the controversy are finally disposed of by order of the municipal authorities.” McPhail
v. City of Lumberton, 832 So. 2d 489, 491 (Miss. 2002). Although Miss. Code Ann. § 11-51-75
provides the appropriate procedure for appealing decisions of a municipal body, “[i]t does not in any way
confer standing.” Burgess v. City of Gulfport, 814 So. 2d 149, 153 (Miss. 2002).
¶11. While we have not passed on the issue of standing in a case involving facts similar to those
presented here, our general decisions on standing are instructive. Compared to the stringent definition of
standing applied by the federal courts, it is true that Mississippi's standing requirements are “quite liberal.”
Id. at 152 (quoting State v. Quitman County, 807 So. 2d 401, 405 (Miss. 2001)). The federal
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definition of “standing” is limited by Art. III, § 2 of the United States Constitution to a review of actual
cases and controversies. 807 So. 2d at 405. However, “the Mississippi Constitution contains no such
restrictive language” and, unlike the United States Constitution, does not limit review to actual cases and
controversies. Id. As the parents correctly point out, “this Court has been more permissive in granting
standing to parties who seek review of governmental actions.” Id. (internal quotation marks & citations
omitted). See also Fordice v. Bryan, 651 So. 2d 998, 1003 (Miss. 1995); Van Slyke v. Board of
Trustees, 613 So. 2d 872, 875 (Miss. 1993); Dye v. State ex rel. Hale, 507 So. 2d 332, 338 (Miss.
1987).
¶12. Generally, under this Court's jurisprudence, “parties may sue only where they assert a colorable
interest in the subject matter of the litigation or experience an adverse effect from the conduct of the
defendant, or as otherwise authorized by law.” Saucier v. Biloxi Reg'l Med. Ctr., 708 So. 2d 1351,
1355 (Miss. 1998). See also State v. Quitman County, 807 So. 2d at 405 (holding that county in a
suit against the State of Mississippi “asserted a colorable interest in the existing county-based system of
indigent defense funding” because it, as a county, was “the entity which our Legislature has required to
provide indigent defense funding”); Dye, 507 So. 2d at 338 (holding that standing to sue is conferred upon
any party adversely affected or impacted by the defendant's conduct or actions); White Cypress Lakes
Dev. Corp. v. Hertz, 541 So. 2d 1031, 1034 (Miss. 1989) (holding that a subdivision homeowner had
standing to sue for enforcement of restrictive covenants if he or she presented to the court a colorable claim
that the conduct of the development company had, and was having, an adverse effect upon the
homeowner's property); Luter v. Oakhurst Assocs., Ltd., 529 So. 2d 889 (Miss. 1988) (holding that
owners of residential property near property which was subject of zoning dispute had standing to appeal
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decision adverse to town when town chose not to appeal); Belhaven Improvement Ass'n, Inc. v. City
of Jackson, 507 So. 2d 41, 47 (Miss. 1987) (holding that “[f]or standing, the person(s)
aggrieved,…whether one or more, should allege an adverse effect different from that of the general
public.”).
¶13. In Burgess, the Gulfport City Council voted to approve and accept a recommendation to issue
a certain tree removal permit. 814 So. 2d at 150. A group of residents filed a bill of exceptions pursuant
to Miss. Code Ann. § 11-51-75 challenging the Council's decision to approve and accept the
recommendation. Id. The residents did not own the real property at issue. Id. at 153. Moreover, the
residents did not allege that they owned the land around the property or that the property was affected in
an adverse manner. Id. Thus, the Court held that the residents failed to show a colorable interest in the
subject matter of the litigation. Id.
¶14. In Burgess, this Court also concluded that a party challenging a municipal decision under Miss.
Code Ann. § 11-51-75 has the burden of “demonstrat[ing] a specific impact or harm felt by him that was
not suffered by the general public.” Id. at 153 (citing City of Madison v. Bryan, 763 So. 2d 162 (Miss.
2000)). That is, the fact that a person resides in a municipality alone is insufficient to confer standing.
Because the residents did not show a colorable interest in the subject matter of the controversy and
residency in a municipality alone is insufficient to confer standing for purposes of Miss. Code Ann. §
11-51-75, the Court held that the residents did not have standing. Id.
¶15. With respect to the parents’ ability to challenge the Council’s ethical conduct, the Mississippi Ethics
in Government statutes authorize the Mississippi Ethics Commission to investigate “any alleged violation
of law by public officials or public employees” when it receives a signed complaint from “any person,
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including any member of the commission or its staff.” Miss. Code Ann. § 25-4-19 (Rev. 2003). If
probable cause exists “for belief that a violation of law has occurred,” the Commission must refer the
complaint and any evidence obtained during its investigation to the Mississippi Attorney General and the
district attorney having jurisdiction. Id. § 25-4-21. The Commission must also submit “a recommendation
that [the alleged violation] be considered for presentation to the grand jury, as well as any further
recommendations for seeking civil remedies.” Id. The Commission, Attorney General, or any
governmental entity directly harmed may seek civil remedies for ethical violations. Id. §§ 25-4-19(g)(ii)
& 25-4-113. Thus, as we have pointed out, the Commission is authorized “to pursue legal remedies when
it believes such action is called for.” Bd. of Tr. of State Insts. of Higher Learning v. Ray, 809
So. 2d 627, 634 (Miss. 2002) (citing Miss. Code Ann. § 25-4-19). Furthermore, Article 3 of the
Mississippi Ethics in Government provisions provides:
(1) Any complaint for a violation of this article shall be brought in the circuit court of the
county in which the violation occurred; provided, however, that upon the motion of the
defendant such action shall be removed to the county in which the defendant resides. Any
such complaint may be initiated only by the Mississippi Ethics
Commission or the district attorney of the county in which the violation
occurred.
Miss. Code Ann. § 25-4-107 (Rev. 2003) (emphasis added). A review of the applicable code sections
indicates that the Legislature has enacted no provision conferring on citizens the power to bring direct
actions in court against public officials for violating the ethics laws. Rather, the Mississippi Code empowers
only public bodies or officers like the Commission, local district attorneys, the Attorney General, or a
governmental entity harmed by the violation to bring such actions.
¶16. Here, the bill of exceptions filed by the parents states in pertinent part:
Appellees appeal from the February 4, 2003 action of the City of Jackson and Jackson
City Council appointing Jonathan Larkin and Maggie Benson-White to the Jackson Public
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School board when Jackson City Councilmen William "Bo" Brown and
Leslie McLemore did not recuse themselves and leave the room, as Brown
had done on all previous votes involving Jackson Public Schools. Brown's
wife and daughter are teachers in the Jackson Public Schools.
McLemore's wife, Betty Mallette, is an attorney working for the law firm
McGlinchey Stafford which does a substantial amount of business with the
Jackson Public Schools. Appellees seek a reversal of the vote of February 4, 2003
and that it be declared null and void and of no force and effect.
***
This vote was arbitrary, capricious, discriminatory, illegal, invalid and void. Councilman
William "Bo" Brown should have recused himself from the vote because
his wife is a teacher in the Jackson Public Schools…Moreover,
Councilman Leslie McLemore should have recused himself and left the
room. His wife, Betty Mallette, is an attorney working in the law firm
McGlinchey Stafford which does a substantial amount of business with the
Jackson Public Schools.
***
If either Councilmen Brown or McLemore had recused themself [sic], as
they were ethically required to do, the City Council would not have had
a quorum to vote on the appointment to the Jackson Public Schools. The
Jackson City Council vote was therefore illegal, invalid, and void and should be so
declared.
(emphasis added).
¶17. Under the facts presented here, we must read Miss. Code Ann. § 11-51-75 in light of the
Mississippi Ethics in Government provisions. It is true that any person aggrieved by a municipal board
decision may file a bill of exceptions challenging that decision. But where a person objects to unethical
conduct by that body, he or she is only entitled to file a charge with the Mississippi Ethics Commission for
investigation and subsequent action in the courts. That is the procedure which these individuals here should
have followed. The Commission should then investigate the individual’s allegations. Upon finding probable
cause for believing that a violation has occurred, the Commission is statutorily commanded to refer all
complaints and evidence gathered during its investigation to the Attorney General and the local district
attorney having jurisdiction for prosecution.
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¶18. The parents’ bill of exceptions seeks reversal of the confirmations based on the assertion that there
was no quorum present to support the vote. The parents reason that there was no quorum because certain
council members should have or were required to recuse themselves from the vote due to alleged conflicts
of interest. Thus, the bill of exceptions was unquestionably couched in terms of a challenge to the ethical
conduct of two council members.
¶19. It is fundamental in our democratic system of government that citizens will seek redress if they
conclude an elected official, a person who holds the public trust, has violated this State’s Ethics in
Government laws. The Legislature has enacted a comprehensive statutory framework giving the people
of this State the power to see that public officials carry out their duties in an ethical manner. The exercise
of this power is carried out through the filing of complaints against public officials when unethical acts are
committed. A citizen might initiate, through her complaint with the Commission, an investigation which
ultimately leads to civil or criminal penalties against the wrongdoer. She may not, however, file a direct
challenge in court against a public official for alleged violations of the Ethics in Government statutes.
Moreover, the Legislature has clearly mandated that only the Commission and local district attorneys may
file actions in court for a public official’s violation of the conflict of interest provisions. Miss. Code Ann.
§ 25-4-107 (Rev. 2003).
¶20. We find that the parents’ bill of exceptions is clearly a challenge to the ethical conduct of two
Council members. While the parents might be offended or even outraged by the alleged ethical violations
in this case, their sole remedy is to file a complaint with the Commission. Instead, they chose to file a bill
of exceptions in circuit court alleging ethical misconduct. Reading § 11-51-75 in light of the Ethics in
Government statutes, we find that the parents do not qualify as “person[s] aggrieved” for purposes of
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Section 11-51-75. The parents’ allegations concern ethical violations, a subject which, by legislative
mandate, is left to public bodies for action in a court of law.
CONCLUSION
¶21. For the foregoing reasons, we reverse the judgment, including the preliminary injunction and
temporary restraining order, of the Hinds County Circuit Court, and we render judgment here dismissing
the parents’ bill of exceptions for lack of standing.
¶22. REVERSED AND RENDERED.
WALLER, AND COBB, P.JJ., CARLSON, GRAVES AND DICKINSON, JJ.,
CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ,
J., NOT PARTICIPATING.
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