Jordan v. Smith
| Decision Date | 05 February 1996 |
| Docket Number | No. 92-CA-00151-SCT,92-CA-00151-SCT |
| Citation | 669 So.2d 752 |
| Parties | David JORDAN, Arthur A. Floyd, Jo Claire Swayze, James L. Holly, Dr. Joseph W. Curtis, James Moore, and Carl Palmer, Members of the City Council of the City of Greenwood, Mississippi v. Harry L. SMITH, in his Capacity as Mayor of the City of Greenwood, Mississippi. |
| Court | Mississippi Supreme Court |
Charles Victor McTeer, McTeer & Associates, Greenville, Shirley Byers, Greenville, for appellant.
Webb Franklin, Sam N. Fonda, Lott Franklin Fonda & Flanagan, Greenwood, for appellees.
En Banc.
BANKS, Justice, for the Court:
This matter requires that we construe statutory law with regard to the relative powers and prerogatives of the mayor and the city council in a mayor-council form of municipal government. We conclude that duly adopted city ordinances subjecting mayoral appointments of municipal judges, prosecutors and of the city attorney to the approval of the city council do not offend the statutory command that the executive power of the municipality vest in the mayor. We also conclude that the "claims docket" method of handling the municipal expenditures, while facially incompatible with the statutory mayor-council form of government, is nevertheless statutorily required. Accordingly, we reverse on the direct appeal and affirm on the cross-appeal.
Prior to July 1, 1985, the City of Greenwood, Mississippi operated under the commission form of government pursuant to Miss.Code Ann. § 21-5-1 through § 21-5-23 (1972). Under this form of government, a mayor and two commissioners were elected at large. The mayor would then appoint, subject to confirmation by the commission, the city attorney and other municipal court personnel. All claims against the City and proposed expenditures were maintained on a claims docket to be approved by the commission.
On July 1, 1985, the City adopted the mayor-council form of government pursuant to Miss.Code Ann. § 21-8-1 through § 21-8-47 (1972). Under this system, the mayor is Louis E. Fancher, Jr. (Fancher), was elected as Greenwood mayor in 1985 under the newly adopted mayor-council form of government for a four year term. During this period, municipal court personnel were selected on an annual basis through mayoral appointment subject to council confirmation. In 1989, Fancher was re-elected to serve another four year term.
elected at large and the seven council members are elected from seven separate wards. After the adoption of the mayor-council form of government, the City continued, pursuant to ordinances adopted by the City in 1985, to appoint municipal court personnel, subject to council confirmation. Also, the aforementioned claims docket procedure, as practiced by the City prior to July 1985, continued in the same fashion.
Prior to June 1991, Lee Abraham, Jr. (Abraham) served as city attorney. When Abraham's appointment was about to expire, Fancher submitted to the council for confirmation that Abraham be reappointed as city attorney. The council rejected Fancher's nomination of Abraham for city attorney.
Fancher thereafter requested and obtained an opinion from the Mississippi Attorney General as to whether Abraham could be retained as city attorney until a permanent city attorney could be appointed. In a letter of response, the Attorney General informed Fancher that Abraham could continue to act as city attorney for a "short period of time." Because the Attorney General's letter was not specific as to exactly what constituted a "short period of time," the council passed a resolution restricting Abraham's interim term to August 20, 1991. This resolution was subsequently vetoed by Fancher. On August 27, 1991, Abraham resigned as city attorney, but proposed that he be allowed to continue to work on the pending court cases involving the City. The council denied his proposal.
On September 10, 1991, the council passed a resolution appointing Willie Perkins (Perkins) as city attorney. In response, Fancher issued an executive order appointing, without council confirmation, Luke Schissel as city attorney. The council subsequently passed another resolution declaring Fancher's appointment of Schissel to be null and void.
On September 11, 1991, Fancher filed a complaint for a declaratory judgment and a temporary restraining order (TRO) in the Chancery Court of Leflore County against the members of the council. The TRO application claimed that pursuant to the Mississippi Code, Fancher, as mayor, was vested with the exclusive authority and power to appoint the city attorney, municipal court judge, municipal court judge pro tempore, municipal court public defender, and administer the municipal budget. The application for the TRO was set to be heard on September 12, 1991.
On September 12, 1991, the council moved the case to the United States District Court for the Northern District of Mississippi, invoking that court's federal question jurisdiction. The council claimed that Fancher's actions violated § 5 of the Voting Rights Act of 1965, and the Fourteenth and Fifteenth Amendment of the United States Constitution. The council also sought a preliminary injunction to prohibit Fancher from appointing anyone to serve as the city attorney, municipal judge, city prosecutor or city public defender without the confirmation of the council.
On September 30, 1991, a hearing was held in the United States District Court to determine the merits of the council's request for a preliminary injunction and Fancher's request to remand the case to the state court. Fancher testified that for as long as he could remember, all appointments made to the positions of city attorney, city prosecutor, city public defender, and city judge had been made by mayoral nomination and council confirmation. Fancher also testified that the aforementioned appointment procedure had been effective and beneficial to the Greenwood community. However, Fancher testified, in his judgment it was necessary to stray from the historical appointment procedure when the African-American majority of the city council demanded that Perkins be appointed city attorney. The appointment of Perkins was contrary to what Fancher felt to be in the best interest of the community. Furthermore, Fancher testified, although in On November 5, 1991, the U.S. District Court issued an opinion and order declaring that there were no Voting Rights Act violations, dismissing the council's request for a preliminary injunction, rescinding Schissel's interim appointment as city attorney and remanding the case to the chancery court. The court reasoned that although Fancher may have attempted to appoint a city attorney without council confirmation, "the council exercised its right to participate in the confirmation process by expressly denying the confirmation and compensation to the mayor's appointee." Thus, the district court opined, a city attorney was never actually appointed and there was no "change" necessary to claim a § 5 violation.
the past he had interpreted the appointment procedure of the municipal form of government to provide that the mayor nominate and the council confirm, the Mississippi courts, in his opinion in Bucklew v. City of Laurel City Council, 1 interpreted the statute to mean that the mayor was vested with complete authority to appoint the disputed city officials.
On November 8, 1991, a hearing was held in the Leflore County Chancery Court to hear the merits of Fancher's September 11th TRO application against the council, allowing Fancher to appoint Schissel as city attorney without interference from the council.
The chancellor reasoned that Greenwood was in need of an attorney and based on the proof presented by Fancher, it was apparent that an impasse existed between the mayor and the council regarding who should assume the city attorney position. The chancellor also noted that the Supreme Court had affirmed without opinion that the mayor had exclusive power in the Bucklew case. 2
The chancellor declared that he was inclined to follow the decision of the Mississippi Supreme Court for purposes of granting the TRO. As a result, Schissel was appointed interim city attorney for a period not to exceed December 31, 1991.
On December 30, 1991, the parties gathered in the final hearing and announced that they had entered into a stipulation regarding certain undisputed facts and issues to the extent that no further testimony was required. Accordingly, the chancellor issued an order to this effect.
On February 7, 1992, the chancellor issued his opinion. The chancellor held that under the Mississippi mayor-council form of government, the mayor had exclusive power and authority to employ the city attorney, the municipal court judge, the municipal court prosecutor and public defender, and the municipal court prosecutor for housing code violations. The chancellor reasoned that the phrase "governing authorities" as it was used in the pertinent statutory provisions, was generic. Furthermore, the chancellor reasoned, when said statutes were read in conjunction with the mayor-council form of government statutes, the term "governing authorities" meant the mayor. The chancellor also held that Fancher's action in appointing Schissel to the position of city attorney without confirmation from the council, did not constitute a change under § 5 of the Voting Rights Act.
Citing Miss.Code Ann. § 21-35-17 3 (1972) as its basis, the court ruled that there was no From this ruling both sides appealed, the council appealing the appointment power ruling, and the mayor cross-appealing the claims-docket ruling.
infringement upon Fancher's executive power as mayor, when the council voted on claims before they were paid. The court reasoned that the claims docket is essentially an accounting and auditing process. Therefore, the lower court held, it has nothing to do with...
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