Tunica Cnty. Bd. of Supervisors v. HWCC-Tunica, LLC

• Decision Date: 14 December 2017
• Docket Number: NO. 2015–CA–01645–SCT,2015–CA–01645–SCT
• Parties: TUNICA COUNTY BOARD OF SUPERVISORS v. HWCC–TUNICA, LLC
• Court: Mississippi Supreme Court

237 So.3d 115

TUNICA COUNTY BOARD OF SUPERVISORS
v.
HWCC–TUNICA, LLC

NO. 2015–CA–01645–SCT

Supreme Court of Mississippi.

December 14, 2017
Rehearing Denied March 1, 2018

ATTORNEYS FOR APPELLANT: JULIAN DENNARD MILLER, MELVIN DAVID MILLER, II

ATTORNEY FOR APPELLEE: ALFRED THOMAS TUCKER, III

EN BANC.

KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. The Board of Supervisors of Tunica County, Mississippi (the Board), ordered an ad valorem tax levy for fiscal year 2014–15 and increased the millage rate from the previous year. After entering the order, the Board advertised a public hearing of the proposed ad valorem tax levy in the Tunica Times . The hearing took place and various taxpayers appeared to voice objections and concerns. Aggrieved by the actions of the Board, one such taxpayer, HWCC–Tunica, LLC (HWCC), which owns and operates Hollywood Casino–Tunica, filed a bill of exceptions in the Circuit Court of Tunica County and paid the taxes under protest. The trial court, finding that the failure of the Board to comply with statutory notice and public hearing requirements rendered the tax levy unlawful, ordered a refund. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 14, 2014, the Board of Supervisors of Tunica County, Mississippi (the Board), determined that the county's Tax Assessor Norma Anderson had "completed and filed the 2014 real and personal assessment rolls of Tunica County, Mississippi ...." Before the Board at that time was a document entitled "August Recaps 2014," which showed that the assessed value of property in Tunica County had decreased in the amount of $4,678,672, a 1.87% decrease from the 2013 assessment.

¶ 3. On August 25, 2014, County Administrator of Tunica County Michael Thompson gave a presentation to the Tunica County Board of Supervisors regarding the county budget for the 2015 fiscal year. His presentation informed that the county's existing millage rates were "[i]nadequate and unsustainable." He cited "[d]ecreasing assessed property values," long-term debt figures, "[i]nadequate or nonexistent fees for essential services," and a dependency on tax revenue from a declining gaming industry. An advertisement was published in the Tunica Times on August 22, 2014, according to a proof of publication. This advertisement stated:

The Tunica County Board of Supervisors will hold a public hearing on its proposed budget and proposed tax levies for the fiscal year 2014–2015 on Thursday, August 28, 2014 at 5:00 p.m. at the Tunica County Courthouse located at 1300 School Street, in Tunica.

The Tunica County Board of Supervisors is now operating with projected total budget revenue of $45,368,673. Four (4) percent or $2,043,000 of such revenue is obtained through ad valorem taxes. For the next fiscal year, the proposed budget has total projected revenue of $40,000,000. Of that amount, eight (8) percent or $3,100,000 is proposed to be financed through a total ad valorem tax levy.

For the next fiscal year, the Tunica County Board of Supervisors plans to increase your ad valorem tax millage rate by 5.00 mills, due to the decrease in assessed property values.

Any citizen of Tunica County is invited to attend this public hearing on the proposed

237 So.3d 117

budget and tax levy, and will be allowed to speak for a reasonable amount of time and offer tangible evidence before any vote is taken.

The advertised meeting occurred on August 28, 2014, and a report was introduced from Barbara Tuchel of Tunicians for Transparency in Government, who made various suggestions for budget reductions.

¶ 4. The minutes also include a document, dated August 28, 2014, and entitled "RESOLUTION OF THE BOARD OF SUPERVISORS OF TUNICA COUNTY, MISSISSIPPI AUTHORIZING AND APPROVING THE HOLDING OF A PUBLIC HEARING ... RELATING TO GIVING THE PUBLIC NOTICE OF A HEARING TO BE HELD ON THE PROPOSED BUDGET AND PROPOSED TAX LEVIES FOR TUNICA COUNTY ...." This resolution purported to fix a public hearing on August 28, "relating to the proposed budget and proposed tax levies for Tunica County, Mississippi, all relating to fiscal year 2014–2015 ...."¹ The resolution also said that "notice shall be given as required by law that the Board of Supervisors will consider and adopt a resolution adopting the final budget and tax levy resolution contemplated thereby at the Board of Supervisors' meeting to be held on Tuesday, September 2, 2014 beginning at 5:00 p.m. ...."² The Board then recessed the August 28 meeting and indicated in its minutes that it would continue the meeting to September 4, 2014.

¶ 5. The next meeting of the Board took place, according to the minutes, on September 2, 2014. The minutes of the September 2 meeting do not reflect that the Board took up or considered the matter of the millage rate increase. The Board then recessed the September 2 meeting and indicated in its minutes that it would continue the meeting to September 4, 2014.

¶ 6. The minutes show that the Board did meet on September 4, 2014. The only budget-related item of business considered by the Board at that time was a request from Michael Thompson, County Administrator, that a "Work Session for the 2015 Budget Year" be scheduled for September 11, 2014. The Board approved the request. The Board then recessed the September 4 meeting and indicated in its minutes that it would continue the meeting to September 11, 2014.

¶ 7. The Board next convened on September 15, 2014, according to the minutes. At its September 15 meeting, the Board approved the fiscal year 2015 budget for the county, which included an ad valorem tax levy. The "General County" millage rate increased from the 9.14 mills figure from the fiscal year 2013 levy to 15 mills, an increase of 5.86 mills. The "County Road Construction and Maintenance" millage rate was levied at 9 mills.³ The "Yazoo–Mississippi Delta Joint Water Management District" millage rate increased from 0.71 mills in the fiscal year 2013 levy to 0.75 mills, an increase of 0.04 mills. The "G.O. Bonds Sinking Fund" levy increased from 15.77 mills in the fiscal year 2013 levy to 17 mills, an increase of 1.23 mills. The Tunica County School District "School

237 So.3d 118

Shortfall Notes" millage rate decreased from 1.32 mills in the fiscal year 2013 levy to .32 mills, a decrease of 1 mill. In total, according to the fiscal year 2015 levy order, the change in the millage rate from the fiscal year 2013 levy was 15.13 mills.⁴

¶ 8. Also at the September 15 meeting, the Board adopted a "RESOLUTION MEMORIALIZING DISCUSSION RELATING TO THE BUDGET FOR TUNICA COUNTY AND ADOPTING A BUDGET FOR THE FISCAL YEAR BEGINNING OCTOBER 1, 2014." This resolution claimed that "notice of today's budget discussion and potential action relating to the budget and the tax levy had been advertised as required by law."⁵ According to the resolution, "[a] copy of the Proof of Publication relating thereto was received and directed to be attached hereto and made a part hereof as Exhibit ‘A.’ "⁶

¶ 9. The page immediately preceding the resolution (Book 166, Page 251) in the Board minutes (Book 166, Page 250, 414) is entitled "NOTICE OF A TAX INCREASE AND PUBLIC HEARING ON THE PROPOSED BUDGET AND PROPOSED TAX LEVIES FOR TUNICA COUNTY BOARD OF SUPERVISORS," and states the following:

The Board of Supervisors of Tunica County, Mississippi will hold a public hearing on a proposed ad valorem tax revenue increase for fiscal year 2014–15 and on its proposed budget and proposed tax levies for fiscal year 2014–2015 on (September 30, 2014 at 5:00 p.m.) at the (Tunica County Courthouse located at 1300 School Street, Tunica County Mississippi).

Tunica County, Mississippi is now operating with projected total budget revenue of $45,368,673 in which (4.5 percent) or $2,043,000 of such revenue is obtained through ad valorem taxes. For the next fiscal year, the proposed budget has total projected revenue of $35,621,996 . Of that amount, Eight (8.42) percent or $3,000,000 is proposed to be financed through a total ad valorem tax levy.

For next fiscal year, Tunica County, Mississippi plans to increase your ad valorem tax millage rate by 19.36 mills from 64.72 to 84.08. This increase means that you will pay more in ad valorem taxes on your home, automobile tag, utilities, business, fixtures, and equipment and rental property.

Tunica County, Mississippi proposes to increase the millage because of General Obligation Bond Debt and decreasing assessed property values and decreasing gaming tax revenue that supports and sustains the County's general operations.

Any citizen of Tunica County, Mississippi is invited to attend this public hearing on the proposed ad valorem tax levy increase, and will be allowed to speak for a reasonable amount of time and offer tangible evidence before any vote is taken.

237 So.3d 119

(Emphasis in original.)⁷

¶ 10. The next meeting of the Board occurred on September 30, 2014. In accordance with the above notice, a public hearing took place. Various citizens, including Joe Jackson, Bobby Papasan, Brook Taylor, Barbara Tuchel, Dollie Hudson, Kathlene Gann, and Supervisor Henry Nickson, Jr., appeared before the Board to express "[b]udget [c]oncerns."

¶ 11. On October 10, 2014, Hollywood Casino–Tunica, or HWCC–Tunica, LLC...