Common Cause of Mississippi v. Smith, 07-58176

• Decision Date: 26 July 1989
• Docket Number: No. 07-58176,07-58176
• Citation: 548 So.2d 412
• Court: Mississippi Supreme Court
• Parties: COMMON CAUSE OF MISSISSIPPI, Roberta Madden, Rims Barber, Barbara Powell, John Guest and Mississippi Publisher's Corporation v. George SMITH, Roger Stewart and Hershel Wilbourn.

Page 412

548 So.2d 412

COMMON CAUSE OF MISSISSIPPI, Roberta Madden, Rims Barber, Barbara Powell, John Guest and Mississippi Publisher's Corporation v. George SMITH, Roger Stewart and Hershel Wilbourn.

No. 07-58176.

Supreme Court of Mississippi.

July 26, 1989.

Charles H. Ramberg, Elizabeth Gilchrist, Thomas W. Tardy, III, Leonard D. Van Slyke, Jr., Thomas, Price, Alston, Jones & Davis, Jackson, for appellants.

Michael S. Allred, Satterfield & Allred, Jackson, for appellees.

Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

On February 25, 1982, Common Cause of Mississippi, et al., sued the Hinds County Board of Supervisors, and this suit resulted in the entry of a Consent Decree enjoining the Board from violating the Open Meetings On November 14, 1983, Common Cause petitioned the Hinds County Chancery Court to cite the Board of Supervisors for contempt of the Consent Decree, and Mississippi Publishers Corporation intervened as a party plaintiff.

                Act, Sec. 25-41-1, et seq., Miss.Code Ann. (Supp.1987).  The Consent Decree outlined certain conduct and procedures to be followed by the Board, post hac.   This decree was entered on May 10, 1982
                

On August 18, 1986, the chancellor entered his Findings of Fact and Conclusions of Law which found the Board in contempt for violating the Consent Decree and/or the Open Meetings Act. The chancellor imposed definite jail terms and fines on the defendants, but suspended the imposition of that punishment unless and until "future violations are charged (and proven) ... " The defendants were also sentenced to perform a designated amount of community service work. The chancellor then vacated the prior Consent Decree, and ultimately incorporated the August 18th Findings of Fact and Conclusions of Law into a final judgment which became the new benchmark by which the conduct of the Hinds County Board of Supervisors would be measured.

The Hinds County Board of Supervisors held a meeting on Thursday, August 21, 1986, beginning at 9:30 a.m. All five supervisors were present at this meeting. At approximately 10:30 a.m., the Board went into executive session on a "personnel matter." Having opposed the motion to go into executive session, Supervisors Thompson and Bryan did not attend. Following the executive session, the meeting recessed and reconvened at 11:00 a.m. for a "budget hearing." The 11:00 a.m. hearing was attended by Supervisors Smith, Bryan and Thompson.

During this meeting, the supervisors requested some budget figures from Pat Griffin, the City Comptroller. He stated that it would take a few days for him to gather the requested information. It was determined, therefore, that another meeting would need to be held on "Monday or possibly Tuesday." This announcement was made in the presence of at least one newspaper reporter, but a specific time, date and place was not immediately set. The 11:00 a.m. hearing was then recessed.

Following recess of the 11:00 a.m. meeting on the 21st, Supervisors Bryan and Thompson departed while Board President Smith remained to confer with Comptroller Griffin. Smith and Griffin agreed, inter se, that the next meeting would be held at 1:30 p.m. on Monday, August 25, 1986. No other member of the public was present, and the later prepared minutes of the August 21st meeting to the contrary, no advance public notice of this August 25th meeting was given. Supervisors Wilbourn, Stewart and Thompson got notice of this meeting only after receiving phone calls from Comptroller Griffin on August 22nd or August 25th.

The Budget Hearing convened on August 25, 1986, at 1:30 p.m., in the Board of Supervisors' Room, Chancery Court Building, Hinds County. The Board heard requests from the Jackson-Hinds Library System and the Jackson Chamber of Commerce. No member of the general public was present at this meeting, and the library system representative discovered the meeting only after telephoning the comptroller on the morning of August 25th. Several important county employees were also noticeably absent, among them Pete McGee, Chancery Clerk, Board Secretary Winnie Dilmore, Joe Moss, then County Attorney, and Diane Butler, the stenographer who usually takes the minutes.

Two days later, on August 27, 1986, Common Cause, et al., filed its second Petition for Contempt, this time against Supervisors Smith, Stewart and Wilbourn because of their failure to properly notice and take minutes of the August 25th meeting. Supervisors Thompson and Bryan were not sued for violating the August 18th Order for the following reasons: (1) Supervisor Thompson refused to stay for the entire August 25th meeting because he felt it was "framed"; (2) Mr. Bryan's only participation was to prevent a vote from being taken on an appropriation matter raised by Supervisor Stewart; (3) Supervisors As previously alluded to, the minutes from the August 21, 1986, meeting were prepared well after the 21st, and incorrectly reflect that, before recess, it was decided that the next meeting would be held at "1:30 p.m. Monday, August 25, 1986." This recital was added ex post facto because the specific time and date was set by Supervisor Smith and Comptroller Griffin, inter se, after everyone had left the August 21st meeting. In fact, the August 21st minutes were not prepared until after the August 25th meeting, and were not presented for Board approval until a September 2nd, 1986, meeting.

Thompson and Bryan voted against approval of the minutes from the August 21st meeting; and (4) Supervisors Thompson and Bryan have continually evidenced their intent to comply with the Open Meetings Act.

In their Petition for Contempt against Smith, Stewart and Wilbourn, Common Cause requested, inter alia, that the chancellor vacate the suspension of the previously imposed jail terms and fines.

The merits of Common Cause's second Petition for Contempt were heard on September 5, 1986. At the outset, the Chancellor entered a Final Judgment on the prior contempt action, nunc pro tunc, as of August 18, 1986. This Final Judgment incorporated by reference the Findings of Fact and Conclusions of Law entered on August 18, 1986. At the close of the plaintiffs' case-in-chief, the defendants moved for an involuntary dismissal pursuant to Rule 41, Miss.R.Civ.P. The chancellor promptly granted the aforementioned Motion, and dismissed the plaintiffs' complaint with prejudice. From that decision, the plaintiffs have timely appealed to this Court.

DISCUSSION

Our discussion begins and ends with the jurisdictional question which, while not fully argued by the parties, appears on the face of this appeal. Subject matter jurisdiction, which is succinctly defined as the authority of a court to hear and decide a particular case, depends on the type of case at issue, and we have the primary duty, sua sponte, to determine whether a particular case lies within our jurisdiction. Marx v. Truck Renting & Leasing Ass'n., Inc., 520 So.2d 1333, 1338 (Miss.1987); Cotton v. Veterans Cab Co., Inc., 344 So.2d 730, 731 (Miss.1977); Byrd v. Sinclair Oil & Refining Co., 240 So.2d 623 (Miss.1970). It is important in addressing this question to keep in mind that cases are generally classified jurisdictionally according to "the nature of the primary right asserted or the remedy sought." Marx, 520 So.2d at 1338.

Against this backdrop we consider first the applicable jurisdictional provisions. The outer limit of our appellate jurisdiction is set by our Constitution. The constitutional mandate provides that this Court "shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law." Miss. Const. of 1890, art. 6, Sec. 146, as amended. Drawing on this provision, our legislature implemented its command and codified it in our general laws as follows:

The supreme court shall have such jurisdiction as properly belongs to a court of appeals, and shall hear and determine all manner of pleas, plaints, motions, causes, and controversies, civil and criminal, which are now pending therein, or which may be brought before it, and which shall be cognizable in said court; but a case shall not be removed into said court until after final judgment in the court below, except in cases particularly provided for by law; and the supreme court may grant new trials and correct errors of the circuit court in granting or refusing the same.

Miss.Code Ann., Sec. 9-3-9 (Supp.1988) (Emphasis added)

To this end, we have long recognized that if there is no statute supplying the right to appeal to this Court, then the right does not exist. Jackson v. Gordon, 194 Miss. 268, 273, 11 So.2d 901, 902 (1943).

A person convicted of criminal or civil contempt may, of course, appeal to this Court. Miss.Code Ann., Secs. 11-51-11, 11-51-12 (Supp.1988). Also, a plaintiff in a civil contempt case may appeal by authority of Miss.Code Ann., Sec. 11-51-3 (1972), which authorizes appeals from final judgments in civil cases. There is no statute authorizing an appeal by the petitioner when a trial court has dismissed a petition for criminal contempt. Plaintiffs' counsel suggests that an appeal from dismissal of a petition for criminal contempt lies under Miss.Code Ann., Sec. 99-35-103(b) (1972). However, any reliance on that statute is misplaced. The plain language of the statute limits its application to the "state or any municipal corporation" who "may prosecute an appeal from a judgment of the circuit court in a criminal cause ..." (Emphasis added).

Furthermore, the petition of Common Cause, et al., was dismissed by the chancery court because of insufficient evidence pursuant to Miss.R.Civ.P. 41(b). The cases interpreting Sec. 99-35-103(b) have consistently held that appeals thereunder are not allowed from dismissals based on insufficiency of evidence. Masonite Corporation v. International Woodworkers, 206 So.2d 171, 178 (Miss.1967); State v. Correro, 231 Miss. 155, 94 So.2d 911 (1957); ...