Myers v. City of McComb

• Decision Date: 05 October 2006
• Docket Number: No. 2005-CA-01266-SCT.,2005-CA-01266-SCT.
• Citation: 943 So.2d 1
• Parties: David W. MYERS v. CITY OF McCOMB.
• Court: Mississippi Supreme Court

Page 1

943 So.2d 1

David W. MYERS v. CITY OF McCOMB.

No. 2005-CA-01266-SCT.

Supreme Court of Mississippi.

October 5, 2006.

Rehearing Denied December 14, 2006.

Willie James Perkins, Carlos Diallo Palmer, and Mark C. Baker, Jr., Brandon, attorneys for appellant.

Norman B. Gillis, Jr., McComb, attorney for appellee.

EN BANC.

RANDOLPH, Justice, for the Court.

"If men were angels, no government would be necessary."¹

¶ 1. The City of McComb ("City"), by and through the Board of Mayor and Selectmen of McComb, filed an action in the Circuit Court of Pike County seeking a declaratory judgment for the removal of David W. Myers from the Board of Mayor and Selectmen, for simultaneously serving in the State Legislature, in violation of Article 1, Sections 1 and 2 of the Mississippi Constitution. Myers removed the action to the United States District Court for the Southern District of Mississippi under 28 U.S.C. Sections 1331, 1441, and 1443; Section 5 of the Voting Rights Act of 1965, 42 U.S.C. Section 1973c; and the Fourteenth Amendment to the United States Constitution. The district court entered summary judgment in favor of Myers.

¶ 2. The City appealed the ruling to the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit held "federal question jurisdiction was unavailable here and this case was improperly removed from state court." City of McComb v. Myers, 122 Fed.Appx. 698, 699 (5th Cir.2004) (per curiam). The Fifth Circuit vacated the judgment and remanded the case to the district court with instructions to remand to the Circuit Court of Pike County. Id. at 698.² The parties then filed competing motions for summary judgment in the circuit court. After considering the motions and filings of both parties, the circuit court issued an order denying Myers's motion and granting summary judgment in favor of the City and declared Myers's office as City Selectman to be vacant. Myers appealed to this Court.

¶ 3. Subsequent to appealing the circuit court's decision to this Court, Myers filed a separate suit in the United States District Court for the Southern District of Mississippi, claiming once again, inter alia, an alleged violation of Section 5 of the Voting Rights Act, 42 U.S.C. Section 1973c, to be discussed infra.

¶ 4. Finding no error in the granting of summary judgment by the Circuit Court of Pike County, this Court affirms.

FACTS

¶ 5. In October 1991, Myers was elected to serve as a Selectman on the City's Board of Mayor and Selectmen. Subsequently, Myers was elected to the Mississippi House of Representatives, with initial service beginning in January 1996. Myers has consecutively and simultaneously served in both offices since.

¶ 6. In 1996, the City unanimously approved a proposal to impose a tax on gross receipts collected by hotels and motels within the municipality. Initially, the language of this proposal provided that the entirety of the tax would be applied to economic improvement and development of the City. However, while the proposal awaited approval in the State Legislature, a conflict emerged between Myers, the Mayor and other Selectmen. After the proposal was presented to the State Senate for approval, Myers sought an amendment to allocate ten percent (10%) of the tax collections to the Martin Luther King Center and the Summit Street area of the City. The Board rejected Myers's proposed amendment. Myers then refused to support the proposal as originally submitted. As the proposal lacked unanimous Board approval, it was never adopted. Myers also subsequently refused to support similar proposals.

¶ 7. In 2002, the Board, aggrieved over the loss of potential tax revenue, which it attributed to Myers, voted to amend the City's private charter to promote ethical conduct and prevent selectmen from serving in the State Legislature. Myers, who serves as Vice Chairman of the House Municipalities Committee, thwarted the Board's vote by supporting successful legislation which required the City to obtain legislative approval before amending its charter. Accordingly, neither the Attorney General nor the Governor approved the amendment to the City's charter due to its conflict with Section 3 of 2002 Regular Session Senate Bill 2383.³

¶ 8. Thereafter, the City filed its complaint in the Circuit Court of Pike County seeking a declaratory judgment for Myers's removal from the Board. The circuit court eventually heard competing motions for summary judgment from Myers and the City, and after due consideration issued its findings and signed an order granting the City's motion for summary judgment. Specifically, the circuit court found a violation of both the common law doctrine of "incompatible offices" and Article 1, Sections 1 and 2 of the Mississippi Constitution. The circuit court held, "[u]nder both doctrines, the acceptance by Myers of the office of Legislator, did of itself, and at once, vacate the office held by Myers on the McComb Board of Mayor and Selectmen."

STANDARD OF REVIEW

¶ 9. Myers argues that the circuit court decided genuine issues of material fact without conducting a trial and erred in granting the City summary judgment. However, this argument is inconsistent with the pleadings filed and the stance Myers has taken throughout this controversy. In the U.S. district court, Myers filed and prevailed on a motion for summary judgment. In the circuit court, Myers filed a motion for summary judgment and claimed "a review of the pleadings and documents clearly reveals that there is no genuine issue of material fact in this lawsuit." This argument is without merit.

¶ 10. The record contains substantial and credible evidence that the position of City Selectman in McComb requires the performance of more than incidental dual functions, legislative and executive. The Board of Mayor and Selectmen of McComb operates under a "weak mayor/strong council" form of government, where lines are considerably less distinct between the legislative and executive branches. See Jordan v. Smith, 669 So.2d 752, 759 (Miss.1996) (Lee, C.J., dissenting).⁴ The City charter authorizes, and the minutes of the Board meetings demonstrate, multiple instances where the Board appoints persons to executive positions to carry out the duties of the City. The Board appoints the city attorney, municipal judges, the prosecuting and defending attorneys, police sergeants, and members of the airport board. See Alexander v. State ex rel. Allain, 441 So.2d 1329, 1338 (Miss. 1983) (the executive branch "appoint[s] the agents charged with the duty of [the] enforcement [of laws].").

¶ 11. Article 1, Section 2 of the Mississippi Constitution prohibits the exercise of "any power" belonging to one branch by a member of another branch. Miss. Const. art. 1, § 2 (emphasis added). This Court has stated that "no . . . member of the legislative branch may consistent with the constitution exercise any powers essentially executive in nature." Alexander, 441 So.2d at 1339 (emphasis added). As the exercise of executive power is clearly present, we are left only with questions of law remaining for this Court to decide.

¶ 12. This Court will review errors of law, including summary judgments and motions to dismiss, de novo. See Bd. of Educ. v. Warner, 853 So.2d 1159, 1162 (Miss.2003). The standard of review we will apply in the case at bar is de novo.

ANALYSIS

I. Constitutionality

¶ 13. "If men were angels, no government would be necessary." The Federalist No. 51, at 349 (James Madison). However, "[i]n framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself." Id. at 351. Therefore, "[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 47, at 324 (James Madison) (emphasis added). "The preservation of liberty requires, that the three great departments of power should be separate and distinct." Id. See also 12 C.J. § 234, n. 96 (1917) (quoting Montesquieu) ("When the legislative and executive powers are united in the same person, or the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.").

¶ 14. "An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time." Book v. State Office Bldg. Comm'n, 238 Ind. 120, 161, 149 N.E.2d 273, 294 (1958) (quoting Thomas Jefferson in his "Notes on the State of Virginia") (emphasis added).

¶ 15. The United States Supreme Court has forcefully adopted these same principles, declaring:

[t]his separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital . . . namely, to preclude a commingling of these essentially different powers of government in the same hands. . . . If it be important thus to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows . . . that each department should be kept completely independent of the others. . . .

O'Donoghue v. United States, 289 U.S. 516, 530, 53 S.Ct. 740, 743, 77 L.Ed. 1356, 1360 (1933) (emphasis added).

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