Johnny L. DuPree v. Carter Carroll

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2006-CA-01875-SCT
JOHNNY L. DUPREE, IN HIS OFFICIAL
CAPACITY AS MAYOR OF THE CITY OF
HATTIESBURG, MISSISSIPPI
v.
CARTER CARROLL, C. E. BAILEY AND KIM
BRADLEY
DATE OF JUDGMENT: 09/29/2006
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: CHARLES E. LAWRENCE, JR.
ATTORNEYS FOR APPELLEE: S. WAYNE EASTERLING
FRANK D. MONTAGUE, JR.
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 10/25/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE DIAZ, P.J., CARLSON AND RANDOLPH, JJ.
DIAZ, PRESIDING JUSTICE, FOR THE COURT:
¶1. This case asks whether members of a city council have standing to seek a writ of
mandamus against the mayor of their city. It also addresses whether a mayor must resubmit
directors for approval by the council at the beginning of a new term of office. Finding in the
affirmative as to both issues, we affirm the circuit court’s order of mandamus.
Facts and Proceedings Below
¶2. The facts are undisputed. The City of Hattiesburg has a “mayor-council form of
government” adopted under Mississippi Code Section 21-8-1, et seq. (Rev. 2007). The city
has five wards and five city council persons who act as the legislative branch of government.
Miss. Code Ann. § 21-8-9 (Rev. 2007).
¶3. Johnny DuPree is the mayor of Hattiesburg, and at the time this suit was filed, all
three adverse parties—Carter Carroll, C.E. Bailey, and Kim Bradley—were councilpersons
in the city. In 2001, DuPree became mayor and nominated department directors pursuant to
statute. See Miss. Code Ann. § 21-8-23 (2) (Rev. 2007). The council approved the directors.
Then, DuPree was re-elected and began a second term in 2005.
¶4. At that time, the mayor indicated he was not going to resubmit the department
directors for approval to the council. The council demanded he do so. DuPree refused, and
the three named council members sought a writ of mandamus to compel him to comply with
what they perceived the law required.1 The Circuit Court of Forrest County agreed with the
council members, and issued the writ demanding that the mayor resubmit the department
heads for approval.
¶5. Aggrieved, the mayor appeals. We are presented with only two questions. First, do
the councilpersons have the necessary statutory standing to seek a writ of mandamus? If they
do, does state statute require a mayor to resubmit a choice of department directors for
approval at the beginning of a new term of office, even if those directors are holdovers from
the previous term?
1
The action was not a formal act of the Hattiesburg City Council.
2
¶6. We will review these questions of law de novo. See Aldridge v. West, 929 So. 2d 298,
300 (Miss. 2006).
I. Do the plaintiffs have standing to seek a writ of mandamus?
¶7. The named council members sought a writ of mandamus to compel the mayor to
resubmit the directors. The writ of mandamus exists to force an elected official to perform
a duty of office. State statute authorizes the writ, which can only be issued:
On the complaint of the state, by its Attorney General or a district attorney, in
any matter affecting the public interest, or on the complaint of any private
person who is interested, the judgment shall be issued by the circuit court,
commanding any inferior tribunal, corporation, board, officer, or person to do
or not to do an act the performance or omission of which the law specially
enjoins as a duty resulting from an office, trust, or station, where there is not
a plain, adequate, and speedy remedy in the ordinary course of law. All
procedural aspects of this action shall be governed by the Mississippi Rules of
Civil Procedure.
Miss. Code Ann. § 11-41-1 (Rev. 2002). Our precedent has developed a four-part test to
determine who may seek mandamus. To obtain relief, we have previously stated that “it
must affirmatively appear that four essential elements are present: (1) the petition must be
brought by the officers or persons authorized to bring the suit; (2) there must appear a clear
right in petitioner to the relief sought; (3) there must exist a legal duty on the part of the
defendant to do the thing which the petitioner seeks to compel; and (4) there must be an
absence of another remedy at law.” Aldridge, 929 So. 2d at 302 (citation omitted).
¶8. Part one of the test addresses whether the person seeking the writ is authorized; per
statute, an authorized person may be the Attorney General, a district attorney, or “any private
person who is interested.” The council members concede they must proceed under the “any
private person who is interested” portion of the statute.
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¶9. Part two of the test requires that one seeking a writ be “authorized to bring the suit.”
A private person may only be authorized to “petition for a writ of mandamus ‘if he can show
an interest separate from or in excess of that of the general public.’” Aldridge, 929 So. 2d at
302 (quoting Jackson County Sch. Bd. v. Osborn, 605 So. 2d 731, 734 (Miss. 1992));
Fondren v. State Tax Comm’n, 350 So. 2d 1329, 1332 (Miss. 1977)). The crux of our
analysis today is whether the council members have a separate interest or one in excess of
the general public.
¶10. The council members offer that their interest in pursuing the writ is unique from that
of the public at large because of the role they play within the separation of powers. The
statutory scheme authorizing the mayor-council system expressly gifts that legislative body
with strong checks and balances on the executive power of the mayor. While only the mayor
may nominate department directors, it is only through the assent of the council that they may
become directors. Miss. Code Ann. § 21-8-23 (2) (Rev. 2007). The council members argue
that they are prevented from exercising their legislative power as authorized by the
Legislature, which vests in them an interest separate from, and in excess of, the general
public. The trial court agreed with this argument, and held that “[a]s members of the City
Council, [the plaintiffs] have the right and duty to confirm directors appointed by the
Mayor,” determining that this distinction sufficed as an interest separate from or in excess
of the general public.
¶11. By analogy, the council members offer the case of Dye v. State ex rel. Hale, 507 So.
2d 332, 338 (Miss. 1987), where two state senators alleged the lieutenant governor was
exercising legislative powers in violation of the Constitution of 1890. We found that the
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actions of the lieutenant governor “certainly ha[d] an adverse impact upon [the state senators]
sufficient to confer upon them standing to sue,” and “[w]e refuse[d] to relegate to the
Attorney General either the exclusive authority to bring a suit such as this or the discretion
whether and how that authority should be exercised.” Id. at 338.
¶12. The mayor counters that the state senators in Dye did not file a writ of mandamus, as
the council members did in this case. Yet while the Dye petition was not filed as a writ of
mandamus, it certainly shared some characteristics with that statutory right. The state
senators sought to enjoin the lieutenant governor from exercising authority the senators
argued was unconstitutional as a violation of separation of powers; they also sought a
declaratory judgment that the Senate Rules, as written, conferred an unconstitutional grant
of power. Id. at 335-36. This is certainly similar to seeking a writ of mandamus to
“command[] any . . . officer . . . to do or not to do an act the performance or omission of
which the law specially enjoins as a duty resulting from an office, trust, or station” under the
mandamus statute. Miss. Code Ann. § 11-41-1 (Rev. 2002). Additionally, there is no doubt
that the question at hand was whether the mayor had encroached upon the powers expressly
granted to the council by the Legislature.
¶13. The mayor asserts in response that one cannot be a public official and claim that a
duty arising out of one’s elected position confers standing for a writ of mandamus. He
argues that “[i]f you have a duty as a result of your elected position and it affects a matter of
public interest, then [the mandamus statute] requires that a petition for a writ of mandamus
be brought on complaint by the state.” Yet the statute does not set out such a requirement;
nor does the mayor cite any case law in support of such an interpretation of the statute.
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¶14. The third factor, whether there is a duty, is to an extent addressed in the second
section of this opinion. However, it is undisputed by the parties that the mayor did have a
duty to nominate, and the council a duty to approve or disapprove, directors of municipal
departments. It was also undisputed by the parties that there was no other legal remedy
available, meeting the fourth prong of the test.
¶15. The council members have demonstrated that, by virtue of their position as the
legislative check and balance on the executive power of the mayor, they have a separate
interest or an interest in excess of the general public. Accordingly, they have also
demonstrated they have the standing necessary to seek a writ of mandamus.
II. Does state statute require the mayor to resubmit his directors once he
is re-elected?
¶16. State law governing the mayor-council system requires that the mayor nominate the
directors of the city departments; the nominated directors may only serve if approved by the
council. Miss. Code Ann. § 21-8-23 (2) (Rev. 2007). The statute also provides that “[e]ach
director shall serve during the term of office of the mayor appointing him, and until the
appointment and qualification of his successor.” Miss. Code Ann. § 21-8-23 (2) (Rev. 2007).
The parties do not dispute that a mayor cannot unilaterally hire directors without the approval
of the council. The question presented today is whether a mayor must resubmit directors
who have been previously approved at the beginning of a new term of office.
¶17. “Where the statute is plain and unambiguous there is no room for construction.”
Bailey v. Al-Mefty, 807 So. 2d 1203, 1206 (Miss. 2001) (internal quotation and citation
omitted). Further, “[t]he primary rule of construction is to ascertain the intent of the
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legislature from the statute as a whole and from the language used therein,” and we “may
look not only to the language used but also to its historical background, its subject matter,
and the purposes and objects to be accomplished.” Id. at 1206 (internal quotation and citation
omitted).
¶18. In his appeal, the mayor urges that “the statute itself is silent” when directors should
be presented to the council for approval, “regardless of whether it is during a first term or
successive term of office.” While the statute may not be explicit, it is not silent.
¶19. The statute clearly vests in the council checks and balances on the executive powers
of the mayor. A plain reading of the statute supports the conclusion that “the term of office”
is to be read in the singular, meaning that a director, once confirmed, serves only for the term
of the mayor nominating him. As the trial court reasoned, the mayor and the council
members each serve four-year terms. See Miss. Code Ann. § 21-8-7 (2) (Rev. 2007).
Accordingly, the council members who originally confirmed the nomination of a director
may no longer be on the council at the beginning of the new term. As discussed supra, the
checks and balances on executive power vested in each council member are unique and
separate abilities not shared by members of the general public. An interpretation which
allowed those council members who were present when a mayor first took office to have
greater powers than those council members present at the beginning of the new term of office
would subvert the statutory scheme.
¶20. Additionally, it is not uncommon for mayors to serve multiple terms, and in some
extreme cases, remain in office for decades. The council, as a legislative body, would be
stripped of valuable checks and balances that preserve the separation of powers if a mayor
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could simply shield his or her decisions with political longevity. A contrary construction of
the statute where the simple re-election of a mayor would nullify the checks and balances on
executive power expressly created by the Legislature would disregard the clear intention of
that body. We shall not disregard the clear intent of the Legislature to create these checks
and balances.2
¶21. This result has previously been reached by the Attorney General in multiple written
opinions on the subject, including one involving the parties and facts at hand, and dating
back to at least 1994. The opinions state “that department directors are appointed for a term
commensurate and coterminous with the term of the appointing mayor” and opine that a re-
elected mayor must resubmit holdover directors. Miss. Atty. Gen. Op. Opinion No. 2006-
0058, 2006 WL 1900672, *1 (Feb. 24, 2006). While an attorney general’s opinion is not
binding on this Court, it is persuasive, and it further underscores our analysis. See State ex
rel. Holmes v. Griffin, 667 So. 2d 1319, 1326 (Miss.1995).
¶22. Accordingly, a mayor shall resubmit directors for approval by the council if the mayor
is re-elected, even if the director is a holdover from the previous term.
Conclusion
¶23. The council members have standing to seek a writ of mandamus against the mayor by
virtue of the fact that their position creates in them a separate interest or an interest in excess
of the general public. Additionally, Mississippi Code Section 21-8-23 (2) requires that a
2
On appeal, the mayor offered the analogy of appointment of department heads to
the President’s unilateral appointment of cabinet members. See U.S. Const. Art. II, § 2.
Unlike that constitutional grant of power to the President, the powers of a mayor and a
city council are derived wholly from enactments of the Legislature.
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mayor must resubmit directors for approval by the council at the beginning of the new term
of office, even if the director is a holdover from the previous term and has been previously
approved by the council.
¶24. The judgment of the Forrest County Circuit issuing an order of mandamus to compel
the Mayor of Hattiesburg to resubmit directors to the city council is affirmed. The mayor
shall forthwith submit department heads for approval by the council.
¶25. AFFIRMED.
SMITH, C.J., WALLER, P.J., CARLSON, GRAVES, DICKINSON,
RANDOLPH AND LAMAR, JJ., CONCUR. EASLEY, J., CONCURS IN RESULT
ONLY.
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