Cellular S., Inc. v. Bellsouth Telecomms., LLC, 2016–CA–00034–SCT

Citation214 So.3d 208
Decision Date02 March 2017
Docket NumberNO. 2016–CA–00034–SCT,2016–CA–00034–SCT
Parties CELLULAR SOUTH, INC. v. BELLSOUTH TELECOMMUNICATIONS, LLC, f/k/a BellSouth Telecommunications, Inc. and Successor by Merger to BellSouth MNS, Inc.
CourtUnited States State Supreme Court of Mississippi





¶ 1. In February 2006, BellSouth Telecommunications, Inc., and BellSouth MNS, Inc., filed an ex parte motion for a protective order in the Chancery Court for the First Judicial District of Hinds County. The documents sought to be protected fell into the following four categories: (1) an August 2005 proposal submitted by BellSouth to the Mississippi Department of Information Technology Services in response to the Department's request for telecommunications products and services, (2) the Telecommunications Products and Service Agreement between BellSouth and the Department dated November 2005, (3) correspondence between BellSouth and the Department related to the first two documents, and (4) related BellSouth marketing materials. Following legislative amendments in 2015 to the Mississippi Public Records Act of 1983 and to Mississippi Code Section 25–1–100, CellularSouth sought production of the proposal and the contract between the Department and BellSouth. As more fully detailed below, we hold that the chancery court erred in its interpretation of the amended Mississippi Code Section 25–61–11 when it entered an order continuing to protect the contract from production. We further hold that, because the rights in question in the case sub judice are created by statute, the Public Records Act, as amended, governs the instant dispute. Accordingly, we reverse and remand for further proceedings consistent with our opinion.


¶ 2. In July 2015, CellularSouth filed its Petition to Revoke Protective Order in which it contended that two amendments to the Public Records Act and to Mississippi Code Section 25–1–100, made after the 2006 entry of the protective order, rendered the August 2005 proposal and resulting contract subject to production pursuant to the Public Records Act. House Bill Number 825, passed by the Legislature in 2015, amended Section 25–61–9 to add a new Subsection 7. The new subsection reads as follows:

For all procurement contracts awarded by state agencies, the provisions of the contract which contain the commodities purchased or the personal or professional services provided, the price to be paid, and the term of the contract shall not be deemed to be a trade secret or confidential commercial or financial information under this section, and shall be available for examination, copying or reproduction as provided for in this chapter.

The bill added a new Subsection 5 to Section 25–1–100, which reads as follows:

Contracts for personal and professional services that are awarded or executed by any state agency, including, but not limited to, the Department of Information Technology Services and the Department of Transportation, shall not be exempt from the Mississippi Public Records Act of 1983. CeullarSouth contends that the amended provisions operate to remove protected status from the sought-after proposal and contract.

¶ 3. In order to stave off CellularSouth's attempt to force production of the contract and proposal, BellSouth contended below and contends on appeal that Mississippi Code Section 25–61–11 insulates the 2006 protective order against subsequent amendments to the Public Records Act. Section 25–61–11 reads as follows:

The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional law, state or federal statutory law, or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter.

Of course, Section 25–1–100 is not found within "this chapter," or Title 25, Chapter 61, of the Mississippi Code, so BellSouth's argument does not avail it there. However, BellSouth contends that, as Section 25–61–9 is part of Chapter 61, the amendment to it cannot "be construed to ... repeal" it.

¶ 4. Below, the trial court agreed with BellSouth. In denying CellularSouth's Petition to Revoke the 2006 protective order, the trial court wrote:

The plain language of [Section 25–61–11 ] provides that the subject amendments should "not be construed to conflict with, amend, repeal or supersede" the 2006 Order of this Court which specifically declared the documents sought herein as "confidential and privileged" and "exempt from the provisions of this chapter." Therefore, the Court must find that the 2015 amendments do not act to remove the exemption from disclosure granted by the 2006 Order.

For the reasons given below, we hold that the trial court erred in interpreting Section 25–61–11 as it did.


The Interpretation of Mississippi Code Section 25–61–11

¶ 5. Before interpreting Section 25–61–11, it is beneficial to look at legislative amendments to the applicable section of the Mississippi Public Records Act of 1983. Section 25–61–9 addresses records furnished to public bodies by third parties that contain trade secrets or confidential financial information. It allows the third parties in question to seek protective orders to protect such records from disclosure. See Miss. Code. Ann. § 25–61–9(1). Following the addition of Subsection 7, a certain subset of information which previously would have been exempted from disclosure as proprietary became, as it were, exempted from the exemption. The narrow question presented in the case sub judice is whether Section 25–61–11 indicates that the Legislature intended the statutes to be subservient to a court order entered after the Public Records Act was first passed in 1983.

¶ 6. BellSouth takes the position that Section 25–61–11 means that the new provision of Section 25–61–9(7) cannot overcome a court order that contradicts it. It contends that the phrase "or thereafter" applies such that any order, whether entered before the effective date of the chapter or after the effective date of the chapter, cannot be overcome by the language of the statute no matter the extent to which said order might conflict with the statute. One problem inherent in what we are calling the BellSouth interpretation, however, is that it applies to any order, whenever entered. Another problematic corollary of the BellSouth position arises from the fact that the language of Section 25–61–11 is much broader than mere amendments to the Public Records Act and provides, instead, that "the provisions of this chapter" may not be construed to countermand an order. If BellSouth is correct, then a protective order entered last week in direct contravention and after the effective date of Section 25–61–9(7) becomes immediately challenge-proof and not subject to review by any higher court. Effectively, the Legislature will have robbed itself of the power to amend the Act by broadening the category of records subject to production, but the Legislature has sought to do that very thing in amending Section 25–61–11.

¶ 7. "[E]very statute must be given meaning unless found to be in hopeless conflict with another statute...." Mississippi Pub. Serv. Comm'n v. Mun. Energy Agency of Miss. , 463 So.2d 1056, 1059 (Miss. 1985). BellSouth's interpretation of Section 25–61–11, according to which all orders protecting documents from disclosure are rendered impervious to conflict with the language of the Act itself no matter when entered, would be, if accurate, in hopeless conflict with the clear legislative intent of broadening the scope of unprotected documents evidenced by the addition of Section 25–61–9(7).

¶ 8. CellularSouth proposes another reading of Section 25–61–11 that would remove the conflict with the 2015 amendments. It contends that Section 25–61–11 operates to shield all laws and orders that existed at the time the Mississippi Public Records Act was enacted in 1983. It further contends that the words "or thereafter" mean that such orders and laws that were in effect in 1983 would continue to be protected at all times after the Act became effective, rather than the language of the act could not be cited to modify or supersede any orders or laws that came into effect after the effective date.

¶ 9. CellularSouth supplies us with the more plausible interpretation. A statute is ambiguous when open to two or more reasonable interpretations. Tellus Operating Group, LLC v. Maxwell Energy, Inc. , 156 So.3d 255, 261 (¶ 16) (Miss. 2015). For the foregoing reason, i.e. , that the BellSouth interpretation hopelessly conflicts with the Legislature's attempts to broaden the range of records subject to production, the BellSouth interpretation falls short of reasonableness. However, even if it were reasonable, the principles of statutory construction favor the CellularSouth interpretation. See City of Tchula v. Miss. Public Serv. Comm'n , 187 So.3d 597, 599 (¶ 6) (Miss. 2016) ("[W]here the language in a statute is plain and unambiguous, ‘it is not within the province of this court to add to the law as the Legislature has written it.’ ")

¶ 10. It is our job to determine legislative intent from the language of the act as a whole, and not to separate from the statutory herd one part alone. Wilson v. State , 194 So.3d 855, 872 (¶ 57) (Miss. 2016) (citing Lewis v. Hinds Cty. Circuit Court , 158 So.3d 1117, 1122 (¶ 13) (Miss. 2015) ). In short, the CellularSouth interpretation allows Section 25–61–11 to jibe far better with the remainder of the Mississippi Public Records Act of 1983, in that it acknowledges the 2015 legislative broadening of the scope of records subject to disclosure. Put differently, statutes within an Act should be...

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