Case: 25CI1:22-cv-00194-EFP Document #: 15 Filed: 04/14/2022 Page 1 of 9

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

FIRST JUDICIAL DISTRICT

CHOKWE A. LUMUMBA, IN HIS OFFICIAL

CAPACITY AS MAYOR OF THE CITY OF JACKSON PLAINTIFF

VS. CAUSE NO. 25CI1:22-cv-00194-EFP

THE CITY COUNCIL OF JACKSON, MISSISSIPPI DEFENDANT

FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES OF THE CITY

COUNCIL OF JACKSON, MISSISSIPPI TO EMERGENCY COMPLAINT FOR
DECLARATORY JUDGMENT
AND
COUNTER-CLAIM AGAINST PLAINTIFF MAYOR LUMUMBA FOR
DECLARATORY, EQUITABLE AND INJUNCTIVE RELIEF

COMES NOW, Defendant, The City Council of Jackson, Mississippi (“City Council”),

pursuant to Rule 15 of the Mississippi Rules of Civil Procedure, by and through undersigned

counsel and files this, its First Amended Answer and Affirmative Defenses to Plaintiff’s

Emergency Complaint for Declaratory Judgment with Request for Expedited Consideration

(hereinafter referred to as “Complaint”) filed against it and Counter-Claim Against Plaintiff Mayor

Lumumba for Declaratory, Equitable and Injunctive Relief. The denomination of any matter

below as a defense is not an admission that The City Council bears the burden of persuasion, the

burden of proof, or the burden of producing evidence with respect to any such matter. The City

Council further, under Rule 65 of the Mississippi Rules of Civil Procedure, files its motion for

injunctive relief against Plaintiff Chokwe Antar Lumumba (the “Mayor”) in his official capacity

as Mayor of the City of Jackson. The City Council would show unto the Court as follows:

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ANSWER

The City Council’s answer to the Complaint, paragraph by paragraph is as follows:

1. The allegations of paragraph 1 of the Complaint are admitted.

2. The allegations of paragraph 2 of the Complaint are admitted.

3. On information and belief, the allegations of paragraph 3 of the Complaint are

admitted, except it is specifically denied that the Mayor had the legal authority to “enter[]

into an emergency contract with Richard’s Disposal,” and it is denied as stated that the

“City Council has failed to approve the contract.”

4. On information and belief, the allegations of paragraph 4 of the Complaint are

admitted, except for the Plaintiff’s assertion that council member took an incorrect legal

position that “the Mayor cannot veto negative actions,” which is specifically denied.

5. On information and belief, the allegations of paragraph 5 of the Complaint are

admitted.

6. The allegations contained within paragraph 6 of the Emergency Complaint do not

appear to be directed at, or require a response from, this Defendant. To the extent that a

response is required, those allegations are denied. It is specifically denied that 1) a negative

vote of the City Council constitutes an official action of the council, 2) the vote to reject a

contract submitted by the Mayor is an ordinance, and 3) the Mayor has authority to veto a

negative action of the City Council.

7. The allegations contained within paragraph 7 of the Emergency Complaint do not

appear to be directed at, or require a response from, this Defendant. To the extent that a

response is required, those allegations are admitted.

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8. The allegations contained within paragraph 8 of the Emergency Complaint do not

appear to be directed at, or require a response from, this Defendant. To the extent that a

response is required, those allegations are admitted. It is admitted that the statutes listed in

paragraph 8 are not exhaustive of the law applicable to the case at bar. Defendant pleads

that other statutes, included but not limited to Miss. Code Ann. § 21-8-41, also apply.

9. The allegations contained within paragraph 9 of the Emergency Complaint are

denied, and it is specifically denied that this Court should enter a declaratory judgment in

favor of the Plaintiff based upon the identified issues. This Defendant specifically denies

that Plaintiff is entitled to a judgment in his favor prayed for in the Complaint.

10. Concerning the last, unnumbered paragraph of the Complaint beginning with the

words, “WHEREFORE, PREMISES CONSIDERED,” the allegations in that paragraph

are denied. It is specifically denied that 1) a negative vote of the City Council constitutes

an official action of the council, 2) the vote to reject a contract submitted by the Mayor is

an ordinance, and 3) the Mayor has authority to veto a negative action of the City Council.

Defendant The City Council of Jackson, Mississippi specifically denies that Plaintiff is

entitled to any other relief.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

The Complaint fails to state a claim upon which relief can be granted, and therefore, this

action should be dismissed pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure.

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SECOND AFFIRMATIVE DEFENSE

This Defendant further pleads the affirmative defense of illegality. The Mississippi Office

of the Attorney General has issued several opinions making it clear that a mayor has limited veto

power and cannot veto a negative action; in an opinion issued to the attorney for the City of

Hollandale, the Attorney General opined that, “Without any action taken by the board of aldermen,

a mayor has nothing to veto. Inaction on a proposal is not subject to the mayor’s veto.” Cordell,

Miss. Atty. Gen. Op. No. 1983 WL 43027, 1987 Miss. AG LEXIS 1418 (Oct. 13, 1987) (see also

1987 Miss. AG LEXIS 1444 and 1987 Miss. AG LEXIS 112). In that opinion, the Attorney

General went on to opine that, “In exercising the ‘veto power’, an executive officer is exercising

a limited legislative power that is only a negative, not a positive power.” Id.; (citing State ex rel.

Teachers & Officers of Indus. Inst. & Coll. v. Holder, 76 Miss. 158, 23 So. 643 (1898);

(Fitzsimmons v. Leon, 141 F.2d 886 (1st Cir. 1944); Mills v. Porter, 222 P. 428 (Mont. 1924)).

Additionally, in an opinion issued to the city attorney for Booneville, the Attorney General opined

that, “A negative action, i.e., a failed motion, is not subject to veto by the mayor.” Tucker, Miss.

Atty. Gen. Op. No. 2007-00538, 2007 Miss. AG LEXIS 343 (October 26, 2007).

THIRD AFFIRMATIVE DEFENSE

This Defendant hereby gives notice that it intends to rely upon such other and further

defenses which may be available or become apparent during discovery in this civil action and

reserves the right to amend its Answer to assert any such defenses.

FOURTH AFFIRMATIVE DEFENSE

This Defendant further pleads the affirmative defenses of laches, waiver, and any other

matter constituting an avoidance or affirmative defense.

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WHEREFORE, PREMISES CONSIDERED, Defendant, The City Council of Jackson,

Mississippi, respectfully request this Court deny all relief prayed for and enter judgment in favor

of the City Council.

NOW, having answered Plaintiff’s Complaint, Defendant The City Council of Jackson,

Mississippi, requests that this Court enter judgment in favor of the City Council with all costs and

expenses assessed to the Plaintiff.

COUNTER-CLAIM

PARTIES

1. Chokwe A. Lumumba is the Mayor of the City of Jackson and may be served by

MEC.

2. The City Council of Jackson, Mississippi is party to this action.

3. This Court has jurisdiction over this lawsuit. Venue is proper in this Court of

Hinds County, Mississippi.

FACTS

4. During a special meeting1 of the City Council of Jackson on April 1, 2022, the

Mayor asked the City Council to ratify the “emergency contract” with Richard’s Disposal, Inc.

The motion to ratify the contract was voted down twice. The Mayor attempted to veto the “no”

vote by the Council. A failure to ratify a contract cannot be vetoed. This seems to be an effort by

the Mayor to seize on footnote 3 of the Court’s March 31, 2022, Order entered in a related

matter. Either the Mayor’s reading of the footnote is incorrect, or the footnote is incorrect. In

essence, the Mayor claims that he can veto a no vote and run the city by minority rule – this

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A video of the meeting can be found at https://www.jacksonms.gov/departments/jackson-city-council/.

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would allow the Mayor to veto and void City Council approval on every contract for which there

is not a super majority of council members to override the veto.

CLAIM AND MOTION FOR A PREMLINARY AND PERMANENT INJUNCTION

AND DECLARATORY RELIEF

5. The Council requests that this Court enjoin the Mayor from taking action after

vetoing a negative vote (vote not to do something).

6. When considering a request for injunctive relief under Mississippi Rule of Civil

Procedure 65(a), a party must prove that 1) there exists a substantial likelihood that the plaintiff

will prevail on the merits; 2) the injunction is necessary to prevent irreparable harm; 3) the

threatened injury to the plaintiff outweighs the harm an injunction might do to the defendants;

and 4) granting a preliminary injunction is consistent with the public interest.

7. Allowing the Mayor to veto a negative action of the Council, and then implement

what the Council voted not to do would give the Mayor legislative power, which is contrary to

Mississippi law. The Mississippi Supreme Court has held that the executive branch (the Mayor)

only has a qualified destructive legislative power and never creative legislative power. See

Holder, 23 So. at 645.

8. Allowing the Mayor to act on a negative veto would blur the lines between the

executive and legislative branches causing irreparable harm by giving greater power to the

Mayor than is afforded to him by law.

9. The injury to the Counter-Plaintiff (the City Council) outweighs the harm to the

Counter-Defendant (the Mayor). The Mayor will suffer no harm, whereas the actions of the

Mayor violate the statutory and constitutional rights of the Council. The Mayor’s veto of the

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negative action takes away the Council’s legislative power and the ability of the majority to run

the city.

10. This action is consistent with the public interest of seeing that the laws of

Mississippi are followed by the Mayor.

11. Counter-Plaintiff recognizes the public health implications of garbage pickup

during the duration of this matter and asks that the Mayor continue to provide for garbage pickup

during this time of self-declared crisis. However, the issues in this suit involve a substantial

point of municipal law, that being whether a mayor can veto a negative action.

12. Accordingly, the City Council requests that this Court enter an injunction

expressly prohibiting the Mayor from acting on a veto of a negative action.

13. Counter-plaintiff, a political subdivision of the State of Mississippi, requests that

this Court waive bond in this matter.

CLAIMS FOR RELIEF

Based on the foregoing, The City Council requests the following relief:

A. A declaratory judgment that the Mayor’s attempt to veto the City Council’s negative

vote is illegal and that the Mayor’s veto does nothing to constitute effectuation of the

proposed contract which was never approved by the Council.

B. Injunctive relief preventing the Mayor to take action following the veto of any

negative vote of the Council, including to constitute effectuation of the proposed

contract which was never approved by the Council.

C. All other relief that the Court finds appropriate.

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RESPECTFULLY SUBMITTED this the 14th day of April, 2022.

THE CITY COUNCIL OF JACKSON,

MISSISSIPPI

By: Mills, Scanlon, Dye & Pittman,

By: __/s/ John P. Scanlon_______________

John P. Scanlon, One of Its Attorneys

OF COUNSEL:

Jerry L. Mills, Esq. [MSB #3324]

John P. Scanlon, Esq. [MSB #101943]
Zachary L. Giddy, Esq. [MSB #106297]
MILLS, SCANLON, DYE & PITTMAN
800 Avery Blvd. North, Suite 101
Ridgeland, MS 39157
Telephone: (601)957-2600
Facsimile: (601)957-7440
jmills@millsscanlon.com
jscanlon@millsscanlon.com
zgiddy@millsscanlon.com

DESHUN T. MARTIN, MSB# 101526

MARTIN AND MARTIN, P.A.
Attorneys & Counselors
228 East Capitol Street
Jackson, Mississippi 39201
Telephone: (601) 355-0955
Facsimile: (601) 355-0957
Email: DTMartin@4MartinsAtLaw.com
Independent Special Counsel for Defendant The City Council of Jackson, Mississippi

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CERTIFICATE OF SERVICE

I, John P. Scanlon, one of the attorneys for Defendant The City Council of Jackson,
Mississippi do hereby certify that I have this date electronically filed the foregoing document with
the Clerk of the Court using the MEC system which sent notification of such filing to all counsel
of record.

This the 14th day of April, 2022.

_/s/ John P. Scanlon______

John P. Scanlon