Allred v. Webb, 91-CA-00750

• Decision Date: 18 August 1994
• Docket Number: No. 91-CA-00750,91-CA-00750
• Citation: 641 So.2d 1218
• Parties: DeWitt T. ALLRED III, Individually, and Dewitt L. Fortenberry, Jr., in his Capacity as District Attorney for the Thirteenth Circuit Court District v. Richard W. WEBB.
• Court: Mississippi Supreme Court

Page 1218

641 So.2d 1218

DeWitt T. ALLRED III, Individually, and Dewitt L Fortenberry, Jr., in his Capacity as District Attorney for the Thirteenth Circuit Court District v. Richard W. WEBB.

No. 91-CA-00750.

Supreme Court of Mississippi.

Aug. 18, 1994.

DeWitt T. Allred III, Jackson, for appellant.

Joseph E. Roberts, Jr., Crymes G. Pittman, Pittman Germany Roberts & Welsh Firm, Jackson, for appellee.

Before HAWKINS, C.J., and McRAE and ROBERTS, JJ.

McRAE, Justice for the Court:

This appeal arises from the June 28, 1991, Forrest County Circuit Court judgment in which Circuit Court Judge Richard McKenzie entered an order precluding appointed district attorney DeWitt Allred from terminating the employment of Richard W. Webb as an assistant district attorney. Allred raises the following issue on appeal:

The trial court erred in its decision that an appointed district attorney does not have the authority to remove his assistant district attorney at his discretion.

Finding that an appointed district attorney has the power and authority of an elected district attorney, we reverse the decision of the Forrest County Circuit Court and hold that Allred had the authority to remove Webb in his discretion.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

On February 12, 1991, DeWitt Allred was appointed District Attorney for the Thirteenth Circuit Court District by Governor Ray Mabus. At this time, Richard Webb was the assistant district attorney. Allred notified Richard Webb on May 31, 1991, that he would be relieved of his duties as assistant district attorney effective June 30, 1991, and, in addition, informed the State of Mississippi Department of Finance and Administration that Webb was being removed from office.

Webb, pursuant to Miss.Code Ann. Sec. 11-41-1, et seq., (1972) and Rule 65 of the Mississippi Rules of Civil Procedure, filed a motion for a temporary restraining order, preliminary injunction and permanent injunction in the Circuit Court of Forrest County on June 21, 1991. Webb urged the trial court that since Miss.Code Ann. Sec. 25-31-6 (1972) specifically provides that an assistant district attorney "may be removed at the discretion of the duly elected and acting district attorney, or for cause by the senior circuit judge of the district", Allred's attempted removal of Webb was unlawful and void because Allred was appointed by Governor Ray Mabus and not duly elected.

A temporary hearing was set for June 28, 1991. On that same date, Allred filed a motion requesting that the trial on the merits be advanced and consolidated with the temporary hearing. The hearing was conducted on June 28, 1991, and the court entered an order finding that Webb was entitled to the relief he sought. The court ordered that Allred take all necessary steps to reverse any actions he had taken in removing Webb as assistant district attorney.

Prior to the lower court's order from which this appeal is taken, Allred ran for the office of District Attorney for the Thirteenth Circuit Court District and was defeated. Dewitt Fortenberry, Jr. took office as the duly elected district attorney and reappointed Webb to the position of assistant district attorney. On January 24, 1992, Fortenberry and Webb, in accordance with Rule 42 and 43 of the Mississippi Supreme Court Rules, motioned this Court to substitute Fortenberry as the appellant in this case since Allred had ceased to be the district attorney, and also requested that, following Fortenberry's substitution as appellant, this cause be dismissed.

In an order dated March 25, 1992, we held that, according to Mississippi law, Fortenberry had been automatically, upon being sworn in as the duly elected district attorney, substituted as a party. Although we found that the movants had met the conditions for voluntary dismissal of this appeal under Rule 42(b) of the Mississippi Supreme Court Rules regarding the official capacity of the individual holding the office of district attorney, we denied the voluntary dismissal insofar as it related to Allred's individual capacity.

On April 7, 1992, Webb filed a motion to dismiss the case arguing that because DeWitt T. Allred III was no longer the appointed District Attorney for the Thirteenth Circuit Court District and because Webb had been reappointed to the position of Assistant District Attorney for the Thirteenth Circuit Court District, the issue raised by Allred's appeal was moot. Allred contested the motion and argued this Court ought to apply the doctrine of "capable of repetition yet evading review" set forth in Strong v. Bostick, 420 So.2d 1356, 1359 (Miss.1982). We denied Webb's motion.

DISCUSSION OF LAW

As this Court articulated in Monaghan v. Blue Bell, Inc., 393 So.2d 466 (Miss.1980):

Cases in which an actual controversy existed at trial but the controversy has expired at the time of review, become moot. We have held that the review procedure should not be allowed for the purpose of settling abstract or academic questions, and that we have no power to issue advisory opinions. Insured Savings & Loan Association v. State, 242 Miss. 547, 135 So.2d 703 (1961); McLendon v. Laird, 211 Miss. 662, 52 So.2d 497 (1951); Van Norman v. Barney, 199 Miss. 581, 24 So.2d 866 (1946).

This Court will not adjudicate moot questions. Bradley v. State, 355 So.2d 675 (Miss.1978); Stevens Enterprises, Inc. v. McDonnell, 226 Miss. 826, 85 So.2d 468 (1956); Sheldon v. Ladner, 205 Miss. 264, 38 So.2d 718 (1949).

Monaghan, 393 So.2d at 466-67. See Jackson County School Board v. Osborn, 605 So.2d 731, 734 (Miss.1992); Miss. Ass'n of Educators v. Trustees JMSSD, 510 So.2d 123, 126 (Miss.1987).

Allred insists that the case sub judice should not be considered moot as it is a matter of public interest and argues that the case at hand falls within the purview of the "capable of repetition but evading review" doctrine employed by the United States Supreme Court in Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) and adopted in Strong v. Bostick, 420 So.2d 1356 (Miss.1982). To utilize the "capable of repetition but evading review" doctrine, these two elements must be combined:

(1) The challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and

(2) There was a reasonable expectation that the same complaining party would be subject to the same action again.

Weinstein, 423 U.S. at 149, 96 S.Ct. at 348. Although this is sound jurisprudence, the two elements are not found in the case sub judice because there is no reasonable expectation that Allred will face this situation again since he is no longer the District Attorney for the Thirteenth Circuit Court.

This Court's decision in Strong v. Bostick, nonetheless, establishes merit in Allred's claim. In Strong, this Court cited Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372 (1944), for the proposition that the question of mootness is not applied in matters of public interest. Strong, 420 So.2d at 1359. Sartin provides in pertinent part:

While it is well established in this state, as well as elsewhere, that as a general rule an appeal will be dismissed when no useful purpose could be accomplished by entertaining it, when so far as concerns any practical ends to be served the decision upon the legal questions involved would be merely academic, it has, on the other hand, been broadly stated that the rule will not be applied when the question or questions involved are matters affecting the public interest ... That statement is made more accurate, however, by the further statement that there is an exception to the general rule as respects moot cases, when the question concerns a matter of such a nature that it would be distinctly detrimental to the public interest that there should be a failure by the dismissal to declare and enforce a rule for future conduct.

Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372, 376 (1944) (emphasis added).

This situation is clearly not a mere private dispute between two parties since future district attorneys inevitably will find themselves in the same quandary as Allred found himself in 1991. A district attorney in this same situation will either (1) suffer an assistant district attorney in whom he lacks confidence and whom he would like to replace or (2) remove the assistant and face the likelihood of having to take time away from his duties as district attorney in order to litigate the issue in court. Accordingly, we hold that this appeal is one of public interest and, thus, we will entertain Allred's appeal.

ISSUE ON APPEAL

DID THE TRIAL COURT ERR IN ITS DECISION THAT AN APPOINTED DISTRICT ATTORNEY DOES NOT HAVE THE AUTHORITY TO REMOVE HIS ASSISTANT DISTRICT ATTORNEY AT HIS DISCRETION?

Allred was the District Attorney for the Thirteenth Circuit Court by virtue of appointment. The lower court found that since Allred was appointed rather than elected, he had no statutory authority to remove Webb from his office of assistant district attorney. The statute in question is Mississippi Code Annotated Sec. 25-31-6 (1972) which provides in part:

Said legal assistants [assistant district attorneys] may be removed at the discretion of the duly elected and acting district attorney, or for cause by the senior circuit judge of the district. (emphasis added).

The question before this Court is one of statutory construction, specifically, construing the words "duly elected." The lower court held the words "duly elected" preceding the words "district attorney" to their literal meaning and ruled that Allred, as an appointed district attorney, could not remove an assistant district attorney.

Webb contends that words contained in our statutes must be given their conventional, customary and popular meaning. In Mississippi Power Company v. Jones, 369 So.2d 1381 (Miss.1979) we held that "[w]here the language used by the legislature in a statute is plain and unambiguous and conveys a clear and definite meaning there is no...