Mitchell v. Parker, No. 2000-CA-00210-COA.

• Decision Date: 25 September 2001
• Docket Number: No. 2000-CA-00210-COA.
• Citation: 804 So.2d 1066
• Parties: Nathan MITCHELL, Appellant, v. Gayle PARKER, Individually and in Her Official Capacity as the Circuit Clerk for Harrison County, Mississippi; the Harrison County Board of Supervisors; and the Fidelity and Deposit Company of Maryland, Appellees.
• Court: Mississippi Court of Appeals

804 So.2d 1066

Nathan MITCHELL, Appellant, v. Gayle PARKER, Individually and in Her Official Capacity as the Circuit Clerk for Harrison County, Mississippi; the Harrison County Board of Supervisors; and the Fidelity and Deposit Company of Maryland, Appellees.

No. 2000-CA-00210-COA.

Court of Appeals of Mississippi.

September 25, 2001.

Chester D. Nicholson, Gail D. Nicholson, Nicholson & Nicholson, Gulfport, Attorneys for Appellant.

Joseph R. Meadows, Karen J. Young, Meadows, Riley, Koenenn & Teel, Gulfport, Joe Sam Owen, Owen & Galloway, Gulfport, Attorneys for Appellees.

EN BANC

MODIFIED OPINION ON MOTION FOR REHEARING¹

SOUTHWICK, P.J., For the Court

¶ 1. The Harrison County Circuit Clerk had until recently charged $100 to appeal a misdemeanor conviction from municipal court to county court. Nathan Mitchell, having paid that charge, brought suit alleging that it was imposed in violation of statute and his constitutional rights. The lower court found that the charge should be viewed as the prepayment of costs that is required by a uniform court rule. Summary judgment in favor of the defendants was entered. We affirm.

FACTS

¶ 2. In August of 1995, Nathan Mitchell was arrested for various misdemeanors. He was convicted of public intoxication, resisting arrest and disturbing the peace by the Municipal Court of Gulfport on January 12, 1996. He received a suspended sentence and fines totaling $950.

¶ 3. On February 12, 1996, Mitchell appealed the three convictions to the County Court of Harrison County. He obtained an appeal bond in the amount of $950 to cover the amount of the fine assessed in municipal court. Mitchell also paid, in cash, to the Circuit Clerk of Harrison County, the sum of $100 for each charge that he was appealing. In the records of the appeal, the three $100 payments were characterized by the circuit clerk as "filing fees." These are the charges at issue in this case. Mitchell also paid $20 as an "appearance bond fee." There is no explanation in the record of this last $20 assessment. No dispute regarding that fee is made and we ignore it in our analysis.

¶ 4. A trial in county court was conducted on May 28 and 29, 1997. Mitchell was found not guilty on each charge. The $20 appearance bond fee was refunded. Mitchell also demanded that the three $100 "filing fees" be returned, but the circuit clerk initially denied the request. Later this charge was refunded after Mitchell's lawyer made demand.

¶ 5. On April 7, 1998, Mitchell brought suit to challenge on statutory and constitutional grounds the clerk's practice of requiring the $100 payment on appeals from municipal to county court. The defendants' summary judgment motion was granted. Mitchell appealed.

DISCUSSION

I. The circuit clerk's authority to assess a fee in an appeal from municipal to county court.

¶ 6. Mitchell argues that the Circuit Clerk of Harrison County had no statutory authority to assess a $100 filing fee for appeals from municipal court. A statute lists the specific fees that circuit clerks may assess. Miss.Code Ann. § 25-7-13 (Rev.1999). Another statute provides that court clerks may assess the statutorily mentioned fees "and no more." Miss.Code Ann. § 25-7-1 (Rev.1999). A filing fee for these appeals is not among the fees listed in section 25-7-13

¶ 7. The trial court found that the $100 charged by the circuit clerk had long been referred to within the clerk's office as a "filing fee," the designation having predated this clerk's service. A document appears in the record that had been posted in the clerk's office. It reveals that in order to docket an appeal from a criminal case that commenced in municipal court, a $100 "fee" had to be paid. The trial court held that charging a filing fee for a criminal appeal would be improper, relying on section 25-7-13. The Supreme Court has held that the circuit clerk should not charge the filing fee under section 25-7-13 for docketing an appeal from a lower tribunal as opposed to filing a complaint. Staples v. Blue Cross and Blue Shield, 585 So.2d 747, 750 (Miss.1991).

¶ 8. In Staples, the only relief given was a refund of the fee. Id. The "fee" in Mitchell's criminal appeal has already been refunded. However, because of Mitchell's claim of an improper even if temporary violation of his rights under color of state law, we examine the propriety of the clerk's requiring this payment.

¶ 9. A uniform court rule requires a cost bond from a defendant who is appealing a municipal or justice court conviction. URCCC 12.02. The charge was similar in amount to the clerk's "fee." The trial judge relabeled the $100 fee as in reality the required prepayment of court costs. Mitchell argues that the trial court erred by transforming the fee into a cost bond because Mitchell in his appeal from his misdemeanor convictions had provided a bond in addition to paying the $100 filing fee per appeal. He argues that the $950 bond satisfied all the bond requirements. That bond was in the precise amount of the fines that had been imposed. The bond is in the record and is written on an appearance bond form. What it explicitly secured was Mitchell's appearance to answer the charges against him.

¶ 10. In order to determine whether there must be both security for costs and an appearance bond, we examine Rule 12.02 more closely. Under section B entitled "Bonds," the Rule appears to provide for two bonds.

Unless excused [by a poverty affidavit], bond with sufficient resident sureties (or licensed guaranty companies), to be approved by the circuit clerk, or of cash shall be given and conditioned on appearance before the county or circuit court from day to day and term to term until the appeal is finally determined or dismissed....

Unless excused [by a poverty affidavit], every defendant who appeals under this rule shall post a bond with sufficient resident sureties (or licensed guaranty companies), to be approved by the circuit clerk, or cash for all estimated court costs, incurred both in the appellate and lower courts. The amount of such bond shall be determined by the judge of the lower court payable to the state in an amount of not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1000).

URCCC 12.02 B. One bond is conditioned on the appellant's appearance until the appeal is concluded, while the other bond secures the estimated costs. The natural reading is that the two different purposes of the two different paragraphs are satisfied by two different bonds.

¶ 11. That there must be both a cost bond and an appearance bond is further supported by the last section of the same rule, which provides that the prior judgment is stayed "upon receipt of the bonds required by this rule or excuse therefore." URCCC 12.02 C.

¶ 12. It is also important that these rules draw from current statutes that also provide for two bonds. One statute requires that a "person appealing from a judgment of a justice court or municipal court under this section shall post bond for court costs relating to such appeal." Miss Code Ann. § 99-35-1 (Rev.2000). The municipal judge will set the amount, which is to be between $100 and $1,000. That is essentially the same procedure as under the second paragraph of Rule 12.02 B.

¶ 13. The next section of the Code states that a defendant who has been sentenced in municipal court to be "committed until his fine and costs shall be paid, may be relieved from such ... pending his appeal, by giving bond" to be approved by the municipal judge in an amount between $100 and $1,000, except for convictions for alcohol-related offenses for which the minimum is $150. Miss.Code Ann. § 99-35-3 (Rev.2000). The condition of that bond is that the defendant appear before the appellate court at the appropriate time. Id. The first paragraph of Rule 12.02 B is broader, in that the need for an appearance bond is not limited to the imprisonment in lieu of a fine situation.

¶ 14. The relevance of these statutes should be determined. A right to appeal must be provided by statute. Bickham v. Department of Mental Health, 592 So.2d 96, 97 (Miss.1991). Once such a right statutorily exists, the Supreme Court has the authority to provide rules of procedure. Bolton v. State, 643 So.2d 942, 945 (Miss.1994). There may be an area of uncertainty on each side of the dividing line between legislative and judicial prerogatives. For example, until recently statutes that set a "time within which appeals shall be taken are both mandatory and jurisdictional, and must be strictly complied with. The court is without power to ingraft any exception on the statute." Moore v. Sanders, 569 So.2d 1148, 1150 (Miss.1990). The Supreme Court now has held that a court rule allowing thirty days to take an appeal from county court controlled over a statute that set ten days. Davis v. Nationwide Recovery Serv., Inc., 797 So.2d 929 (¶ 4) (Miss.2001).

¶ 15. Just what is procedure and what is within the legislative's authority need not be decided here, as the Court has also held that it will consider statutory rules in a "cooperative spirit" in an effort to provide for the "fair and efficient administration of justice...." Newell v. State, 308 So.2d 71, 78 (Miss.1975). That cooperative spirit cautions us not to create conflicts between statutes and rules when such conflicts are not reasonably apparent. The relevant statutes were adopted first and the Uniform Circuit and County Court Rules later. The rules roughly replicate the approach of the statutes. However, if consistency cannot be found, procedural "statutes which conflict with rules adopted by the Court are void." Stevens v. Lake, 615 So.2d 1177, 1183 (Miss.1993).

¶ 16. Our determination that the two statutes provide for two separate bonds in the situation in which a fine has been imposed arises from the plain language of the statute, since two sections describe bonds that serve different purposes. We are strengthened in this position by the history of amendm...