E-Filed Document Oct 10 2022 20:04:07 2022-CA-00855-SCT Pages: 38

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2022-TS-00855

_______________________________________________________

CHOKWE A. LUMUMBA, IN HIS OFFICIAL

CAPACITY AS MAYOR OF THE CITY OF JACKSON
Appellant

v.

THE CITY COUNCIL OF JACKSON, MISSISSIPPI

Appellee

_______________________________________________________

BRIEF OF APPELLANT
On Appeal from the Chancery Court of the
First Judicial District of Hinds County, Mississippi

ORAL ARGUMENT NOT REQUESTED

________________________________________________________

Submitted by:

FELECIA PERKINS, ESQ.

Mississippi Bar Number 10078
JESSICA AYERS, ESQ.
Mississippi Bar Number 103685
LAW OFFICE OF FELECIA PERKINS, P.A.
Post Office Box 21
Jackson, Mississippi 39205-0021
Office: (601) 352-5053
felecia@feleciaperkins.com
jessica@feleciaperkins.com
Counsel for Appellant
 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

CHOKWE A. LUMUMBA, IN HIS OFFICIAL

CAPACITY AS MAYOR OF THE CITY OF JACKSON APPELLANT

V. CASE NO.: 2022-TS-00855

THE CITY COUNCIL OF JACKSON, MISSISSIPPI APPELLEE

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons have an interest

in the outcome of this case. These representations are made in order that the justices of the Supreme

Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal.

1. Chokwe Lumumba, in his official capacity as Mayor of the City of Jackson,

Appellant

2. Felecia Perkins, Law Office of Felecia Perkins, P.A., Counsel for Appellant

3. Jessica Ayers, Law Office of Felecia Perkins, P.A., Counsel for Appellant

4. The City Council of Jackson, Mississippi, Appellee

5. John P. Scanlon, Mills, Scanlon Dye, & Pittman, Counsel for Appellee

6. Zachary L. Giddy, Mills, Scanlon Dye, & Pittman, Counsel for Appellee

7. Jerry L. Mills, Mills, Scanlon Dye, & Pittman, Counsel for Appellee

8. Deshun T. Martin, Martin & Martin P.A., Counsel for Appellee

9. Honorable Larry E. Roberts, Specially Appointed Chancellor

SO CERTIFIED BY ME, this the 10th day of October, 2022.

s/ Felecia Perkins
FELECIA PERKINS

i
 TABLE OF CONTENTS

Certificate of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. WHETHER THE TRIAL COURT ERRED WHEN

IT ADMITTED DOCUMENTS INTO EVIDENCE
OVER APPELLANT’S OBJECTION AND DENIED
THE MOTION FOR ADDITIONAL FINDINGS OF
FACT AND CONCLUSIONS OF LAW, AND TO ALTER
ORDER AND OPINION AND FINAL JUDGMENT . . . . . . . . . . . . . . . . . . . . 11

1. The trial court erred by allowing the City Council to admit

several exhibits into evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2. The trial court erred by denying the Motion for Additional

Findings of Fact and Conclusions of Law, and to Alter Order
and Opinion and Final Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. WHETHER THE TRIAL COURT ERRED WHEN IT

DENIED THE MAYOR’S MOTION TO DISMISS
AND MOTION FOR SUMMARY JUDGMENT,
AND GRANTED THE CITY COUNCIL’S
MOTION FOR SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

ii
 TABLE OF AUTHORITIES
Cases Page #

Brady v. John Hancock Mut. Life Ins. Co., 342 So.2d 295 (Miss.1977) . . . . . . . . . . . . . . . . . . 25

Clark v. Bryant, 253 So. 3d 297 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-21

Gannett River States Pub. Corp. v. City of Jackson, 866 So. 2d 462 (Miss. 2004) . . . . . . . . . . 28

Gibson v. Williams, Williams & Montgomery, P.A., 186 So. 3d 836 (Miss. 2016) . . . . . . . . 10-11

Harmon v. Regions Bank, 961 So. 2d 693 (Miss. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13

Illinois Cent. R. Co. v. Jackson, 179 So. 3d 1037 (Miss. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Jordan v. Smith, 669 So. 2d 752 (Miss. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Kennedy v. Claiborne Cnty. by & through its Bd. of Supervisors,

233 So. 3d 825, 829 (Miss. Ct. App. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28

Legislature of State v. Shipman, 170 So. 3d 1211 (Miss. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 25

Myers v. City of McComb, 943 So. 2d 1 (Miss. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Peterson v. City of McComb City, 504 So. 2d 208 (Miss. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 26

Sunland Pub. Co. v. City of Jackson, 234 F. Supp. 2d 626 (S.D. Miss. 1999) . . . . . . . . . . . 21-22

Tupelo Redevelopment Agency v. Abernathy, 913 So. 2d 278 (Miss. 2005) . . . . . . . . . . . . . . . . 27

Webb v. City of Meridian, 195 So.2d 832 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27

Wirtz v. Adams Cnty. Bd. of Supervisors, 278 So. 3d 1170 (Miss. Ct. App. 2019) . . . . . . . . . . . 28

W.C. Fore v. Mississippi Dep't of Revenue, 90 So. 3d 572 (Miss. 2012) . . . . . . . . . . . . . . . . . . 30

Statutes

Miss. Code. Ann. §11-51-75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Miss. Code. Ann. §17-17-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-31

Miss. Code. Ann. §17-17-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30-31

Miss. Code. Ann. §21-1-11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iii
Miss. Code. Ann. §21-3-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Miss. Code Ann. §21-8-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26

Miss. Code. Ann. §21-8-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

Miss. Code. Ann. §21-8-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

Miss. Code Ann. §21-8-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24

Miss. Code. Ann. §21-8-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 24-25, 27

Miss. Code Ann. §21-8-23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Miss. Code Ann. §21-8-27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Miss. Code Ann. §21-8-47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Miss. Code Ann. §21-15-33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Miss. Code. Ann. §31-7-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Miss. Code Ann. §33-15-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-29

Miss. Code Ann. §33-15-31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29-30

Rules of Court

Mississippi Rule of Civil Procedure 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Attorney General Opinions

Honorable Mike L. Cordell, 1987 WL 290532 (Miss. A.G. Oct. 13, 1987). . . . . . . . . . . . . . 14-15

Mr. Allan Freer, 1997 WL 306797 (Miss. A.G. May 23, 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Bobbie L. Sessums,1990 WL 547728 (Miss. A.G. Mar. 14, 1990) . . . . . . . . . . . . . . . . . . . 15-16

W. Rayford Jones, Esquire, 1990 WL 547726 (Miss. A.G. Feb. 28, 1990) . . . . . . . . . . . 16-17, 26

Gary L. Austin, Esq., 2012 WL 2521586 (Miss. A.G. May 22, 2012) . . . . . . . . . . . . . . . . . . . . 17

Mr. Jeff Butler, 2011 WL 5857735 (Miss. A.G. Oct. 25, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Daniel K. Tucker, 2007 WL 4192067 (Miss. A.G. Oct. 26, 2007) . . . . . . . . . . . . . . . . . . . . . . . 18

iv
 STATEMENT OF THE ISSUES

I. Whether the Trial Court Erred When it Admitted Documents into Evidence over Appellant’s
Objection and Denied the Motion for Additional Findings of Fact and Conclusions of Law,
and to Alter Order and Opinion and Final Judgment

1. The trial court erred by allowing the City Council to admit several exhibits into
evidence

2. The trial court erred by denying the Motion for Additional Findings of Fact and
Conclusions of Law, and to Alter Order and Opinion and Final Judgment

II. Whether the Trial Court Erred When it Denied the Mayor’s Motion to Dismiss and Motion
for Summary Judgment, and Granted the City Council’s Motion for Summary Judgment

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 STATEMENT OF ASSIGNMENT

Pursuant to Rule 16(d) of the Mississippi Rules of Appellate Procedure, the Mississippi

Supreme Court will ordinarily retain cases involving a major question of first impression. The

Supreme Court should retain jurisdiction of the case because it involves the interpretation of the

statutory authority granted to a mayor in a mayor-council form of municipal government.

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 STATEMENT OF THE CASE

The City of Jackson, Mississippi is governed by a mayor-council form of government. The

Mayor exercises the executive power of the municipality1 and the City Council exercises the

legislative power of the municipality, except as may be otherwise provided by general law.2 Unlike

other forms of municipal governments, such as the more restrictive Code Charters under Miss. Code

Ann. §§21-3-1 through 21-3-253, the statutory scheme of a mayor-council form of government calls

for a strong mayor with a weaker council.

This case of first impression will have wide-spread impact on mayor-council municipalities

throughout the State of Mississippi. The central issue presented involves whether a vote to

disapprove a contract constitutes an action of the City Council, and if so, whether the Mayor can veto

the same. The City Council claimed it did not initate the lower court proceeding for the trial court

to review any one particular vote. However, the central controversy between the Mayor and the City

Council is whether the Mayor can veto the City Council’s vote to disapprove ratification of an

emergency contract for the collection of residential solid waste and/or a regular contract for the

collection of residential solid waste (R. 127).

The trial court entered a Final Judgment calling the City Council’s vote to disapprove a

matter a “negative vote” that is not an ordinance adopted by the council and, therefore, a mayor in

a mayor-council municipality is not permitted to veto the same. The trial court also found that four

prior mayoral vetoes were not proper, and each were without effect.

FACTS

This action began on May 11, 2022 when the City Council filed its Complaint for Declaratory
1
Miss. Code. Ann. § 21-8-15
2
Miss. Code. Ann. § 21-8-9
3
In its pleadings, the City Council has cited non-binding AG Opinions that relate to statutes under Code
Charters in support of its arguments. The trial court cited the same AG Opinions in its Order and Opinion.

-3-
Judgment, and Motion for Injunctive Relief requesting the trial court enter a declaratory judgment

in its favor that 1) a negative vote of the City Council does not constitute an official action of the

council which could be vetoed, and 2) the Mayor has no legal authority to veto a negative action of

the City Council. (R. 9-17). The City Council made its request based on the Mayor’s veto of its

refusal to approve the emergency contract with Richard’s Disposal for the collection of residential

solid waste, and requested the trial court declare the “veto” an illegal and meaningless act by the

Mayor and that any contract attempted to be brought into existence in that manner remains invalid

due to his failure to obtain approval of the contract by a majority of the City Council of Jackson,

Mississippi. (R. 10). The City Council also requested the trial court enjoin the Mayor from taking

action after “vetoing a negative vote (vote not to do something).” (R. 13-15).

On June 13, 2022, the special chancellor entered a Status Conference Order setting a hearing

on the parties’ forthcoming summary judgment motions and/or trial on the merits of the Complaint

for July 8, 2022, inter alia (R.33).

The Mayor filed his Motion to Dismiss Complaint for Declaratory Judgment, and Motion for

Injunctive Relief with Counter-Complaint for Declaratory Judgment on June 13, 2022. (R. 34-43).

The Mayor requested the trial court dismiss the City Council’s Complaint for Declaratory Judgment

and Motion for Injunctive Relief arguing that the City Council’s Complaint should be denied due

to their failure to override his veto of their vote to deny the ratification of the emergency contract

with Richard’s Disposal and/or to appeal the same under Miss. Code Ann. §11-51-75. (R. 34-37).

The Mayor also requested the trial court to declare a negative vote by the City Council constitutes

an official action of the City Council and the Mayor has authority to veto both affirmative and

negative actions of the City Council, and to grant the Mayor any other relief to which he may show

himself entitled and the Court deems just and proper. (R. 42).

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 On June 16, 2022, the City Council filed their Motion for Summary Judgment and

Supporting Memorandum of Law and it reiterated its request for the trial court to find that the Mayor

may not veto a negative action under the law, the City Council’s failed vote of 4-3 or any similar lack

of a majority is not an ordinance, and that a negative vote does not constitute an official City Council

action. (44-73) The City Council argued it had not taken any form of action or adopted an ordinance

and, instead, that its vote to disapprove contracts for residential solid waste was an inaction. (R. 50).

In support of its argument, the City Council cited several non-binding AG Opinions based on

Mississippi law concerning Code Charter municipalities, its misapprehension of the Mayor’s veto

authority pursuant to Miss. Code Ann. § 21-8-17(2), and its erroneous belief that the City Council’s

vote regarding the contracts presented to it by the Mayor for collection of residential solid waste was

legislative. (R. 52-53).

On June 28, 2022, the Mayor filed his Motion for Summary Judgment and Supporting

Memorandum of Law and argued that: 1) Mississippi law granted him authority to veto all official

actions of the City Council with limited exceptions that did not include matters related to the instant

action; 2) the City Council’s vote to deny the ratification of the emergency contract with Richard’s

Disposal was not a negative vote, it was a positive vote to disapprove a contract that they were only

required to either approve or disapprove, subject to the Mayor’s veto and other applicable

Mississippi law; 3) the approval and adoption of the City Council’s minutes containing its official

actions satisfy the “adoption” required by Miss. Code Ann. §21-8-17(2); and, 4) Mississippi law

prohibits the City Council from bringing its request for injunctive relief before the trial court, and

the same should be denied. (R. 74-105).

The City Council filed its Answer and Affirmative Defenses to the Mayor’s Counter-Claim

for Declaratory Judgment on July 4, 2022. (R. 106-110).

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 On July 5, 2022, the Mayor filed his Response in Opposition to the City Council of Jackson,

Mississippi’s Motion for Summary Judgment and Supporting Memorandum of Law. (R. 111-119).

In his response, the Mayor argued the issues presented in the non-binding AG Opinions cited by the

City Council in support of its arguments concerned matters in a municipality with a code charter as

codified in Miss. Code Ann. §§21-3-1 - 21-3-25, and municipalities with code charters and mayor-

council forms of govern differ significantly in relation to the legal authority granted to the mayor,

specifically, in the veto authority granted to the mayor. (R. 113). The Mayor also cited AG

Opinions regarding mayor-council municipalities that supported his position. (R. 118). In support

of his arguments, the Mayor filed an affidavit on July 5, 2022. (R. 120-124).

On July 5, 2022, the City Council filed its Response to the Mayor’s Motion to Dismiss

stating in bold letters that “THIS MATTER IS NOT AN APPEAL OF A SPECIFIC VETO,” and

making other averments. That same day, the City Council filed its Response to the Mayor’s Motion

for Summary Judgment reiterating its previous arguments, and claiming that because the matter was

not a direct appeal of any one veto, Miss. Code Ann. §11-51-75 did not apply. (R. 130-143).

On July 8, 2022, the parties appeared for hearing before the trial court on the on the

Mayor’s Motion to Dismiss Complaint for Declaratory Judgment and Motion for Injunctive Relief,

the City Council’s Motion for Summary Judgment and Supporting Memorandum of Law, and the

Mayor’s Motion for Summary Judgment and Supporting Memorandum of Law. At the beginning

of the hearing, the Court denied the Mayor’s Motion to Dismiss stating the following from the

bench:

“Procedurally, I think it's important that I deal with the 12(b)(6)

motion in a summary way; and that is, as I understand it, this lawsuit
is an issue concerning a question of law. As I have read the briefs and
the pleadings of the parties, there appears to be no genuine issue of
material fact. Both parties have filed motions for summary judgment

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 under Rule 56. As a consequence, I think the 12(b)(6) motion should
be denied and we should get to the summary judgment issue which is
central to both parties’ motions for summary judgment.”

(R. 312, RE 6).

Although the matters before the trial court were the competing motions for summary

judgment, the special chancellor ruled from the bench as follows:

The question then becomes if the council refuses or doesn't act, can
that be said to be an official action. Relevant to this inquiry is a
recognition of the city's own ordinance, and I'm referring to Section
2-66, which is entitled voting. It has this sentence in it:

"No action of the city council shall be considered adopted unless it

receives the affirmative vote of that portion of the council dictated by
state law under the circumstances."

And the state law, as I said earlier, relates to ordinances or official

action adopted. The attorney general of the State of Mississippi, even
though those opinions are not controlling on this Court, they do have
persuasive power, and for over 35 years, the attorney general's office
has issued a number of opinions relating to this question in both
code-charter and mayor-council forms of government, and I will read
some of that operative language:

"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."

"In exercising the 'veto power', an executive officer is exercising a

limited legislative power that is only negative, not a positive power."

"With respect to the veto authority of a mayor, it is well-settled that

a mayor may veto any action of the board of aldermen except for a
negative vote."

"{a} negative action, i.e. a failed motion, is not subject to veto by the
mayor."

"A negative action, i.e.", same thing, "a failed motion, is not subject
to veto by the mayor."

When a matter such as occurred with the solid waste contract, a failed

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 ratification of this emergency contract, to me, constitutes inaction, not
action, and was never adopted so by the city council. Consequently,
I agree with the attorney general's interpretation that when a matter is
not passed by the city council, it is a negative action to which the
mayor does not have the power to veto an inaction. There's nothing
there to veto. The council didn't pass affirmatively a matter, it
rejected it.

So in response to the declaratory judgment, I'm going to grant the

plaintiff's request for relief to the extent that I will rule that inaction
or negative action by the city council is not subject to a mayoral veto
in a mayor-council form of government.

The issue of an injunction, I am not issuing any permanent or

temporary injunction at all. I understand the plaintiff to have
withdrawn that request.

(R. 373-375, RE 6).

On July 15, 2022, the trial court entered the Order and Opinion and Final Judgment presented

by the City Council before the Mayor could provide criticisms of the same. (R. 148-152, 153-154,

RE 2, 3). Due to discrepancies between the trial court’s bench ruling and the Order and Opinion and

Final Judgment, the Mayor filed his Motion for Additional Findings of Fact and Conclusions of Law,

and to Alter Order and Opinion and Final Judgment (R. 156-167). In the Motion, the Mayor

requested the trial court find the facts specially and state separately its conclusions of law that

supported its denial of the Mayor’s Motion to Dismiss Complaint for Declaratory Judgment and

Motion for Injunctive Relief, including but not limited to its opinion that Miss. Code Ann. §11-51-75

is inapplicable in this action as stated in its Order and Opinion, and supported the ruling found in

paragraphs 2 and 3 of the Final Judgment. (R. 165).

The Mayor also, inter alia, requested the trial court alter and/or amend its Order and Opinion

and Final Judgment 1) to reflect the Court’s ruling solely on the Mayor’s Motion to Dismiss and not

a nonexistent request for injunctive relief; 2) to correct the finding that “2) none of those items on

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those four occasions were adopted by a majority vote of the City Council members, meaning those

items failed on a no vote or negative vote” is an undisputed fact; and, 3) to add its specific findings

of fact and conclusions of law that support its denial of the Mayor’s Motion to Dismiss Complaint

for Declaratory Judgment and Motion for Injunctive Relief, including but not limited to its opinion

that Miss. Code Ann. §11-51-75 is inapplicable in this action as stated in its Order and Opinion, and

supports the ruling in paragraphs 2 and 3 of the Final Judgment. (R.165-166).

On August 1, 2022, the trial court entered its Order Denying the Mayor’s Motion for

Additional Findings of Fact and Conclusions of Law, and the Motion to Alter Order and Opinion

and Final Judgment. (R. 300-301, RE 4). The trial court denied the Motion finding that 1) both

parties’ motions for summary judgment stated there were no genuine issues of material fact, so the

trial court was not required to “find the facts,” and this was not a case “tried upon the facts without

a jury” as contemplated by M.R.C.P. 52 and, therefore, M.R.C.P. 52 was inapplicable; 2) even if

M.R.C.P. 52 was applicable, the Mayor never requested during or at the conclusion of the hearing

for the trial court to make a findings of fact and conclusions of law; and 3) the court could not detect

no intervening change in controlling law, no availability of new evidence not previous available, nor

any need to correct a clear error of law or prevent a manifest injustice. (R. 300-301, RE 4).

The Mayor filed his Notice of Appeal on August 26, 2022. (R. 302).

SUMMARY OF THE ARGUMENT

The trial court should be reversed because of its incorrect application of Mississippi law as

it relates to the role of the City Council with regard to the collection of residential solid waste during

the normal bidding process and during a declared local emergency. In both instances, the City

Council’s role is administrative, not legislative. The trial court based its ruling on its belief that the

power to veto is conferred by legislature, a mayor’s power to approve or veto actions of a municipal

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legislative body is legislative in nature, and that the executive has only a qualified and destructive

legislative function, and never a creative legislative power. (R. 149, RE 2). The trial court found,

based mainly on Attorney General Opinions concerning municipal governments for code charters,

not mayor-council municipalities, that when a matter is not passed by the city council, it is a negative

action to which the mayor does not have the power to veto because it is an inaction and there is

nothing there to veto. (R. 151, RE 2).

However, because the a City Council’s review of a contract presented by the mayor in a

mayor-council municipality is administrative, not legislative, this Court should reverse and vacate

the trial court’s erroneous finding that: 1) Mississippi law does not permit the mayor in a mayor-

municipality to veto a matter not adopted by the city council; 2) a negative vote is not an ordinance

adopted by the council; 3) the Mayor’s prior attempts to veto negative matters set out in exhibits

offered by the City Council and admitted into evidence were not proper items for the Mayor to veto;

and, 4) the Mayor’s attempted veto of those items set out in the Final Judgment were without effect.

Furthermore, even if the City Council’s action to deny the ratification of the contracts for the

collection of residential solid waste was legislative in nature, Mississippi law permits the Mayor to

veto the same, and the trial court’s Order and Opinion and Final Judgment should be reversed and

vacated.

ARGUMENT

A. STANDARD OF REVIEW

When reviewing a trial court's grant or denial of a motion to dismiss or a motion for summary

judgment, the Mississippi Supreme Court applies a de novo standard of review, and summary

judgment should be granted only when no genuine issue of material fact exists and the moving party

is entitled to judgment as a matter of law. Gibson v. Williams, Williams & Montgomery, P.A., 186

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So. 3d 836, 844 (Miss. 2016). Further, the Mississippi Supreme Court views the evidence in the

light most favorable to the nonmoving party, and the moving party has the burden of demonstrating

that no genuine issue of material facts exists, and the non-moving party must be given the benefit

of the doubt concerning the existence of a material fact. Id. Even where the facts are undisputed,

summary judgment is inappropriate where there are undisputed facts which are susceptible to more

than one interpretation. Id.

B. WHETHER THE TRIAL COURT ERRED WHEN IT ADMITTED DOCUMENTS

INTO EVIDENCE OVER APPELLANT’S OBJECTION AND DENIED THE
MOTION FOR ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF
LAW, AND TO ALTER ORDER AND OPINION AND FINAL JUDGMENT

In accordance with Rule 56 of the Mississippi Rules of Civil Procedure, a judgment sought

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56. The Mississippi

Supreme Court has held that Rule 56(c) requires materials considered on summary judgment to be

“on file.” Illinois Cent. R. Co. v. Jackson, 179 So. 3d 1037, 1045 (Miss. 2015). Rule 56(c) requires

that all matters upon which a party or the court may rely must be filed with the clerk and served on

the other party prior to the hearing. Id. It is certainly contrary to Rule 56(c) for the trial court to

consider documents that are not on file prior to the hearing on the motion. Id.

1. The trial court erred by allowing the City Council to admit several exhibits into
evidence

The trial court allowed the City Council to introduce ten exhibits into evidence over the

Mayor’s objection. (R. 314-315, RE 5, 6). With regard to the first exhibit, the trial court stated that

it was attached as an exhibit to the motions for summary judgment, so the objection was overruled.

(R. 314, RE 5,6). However, the trial court failed to provide an explanation for overruling the

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Mayor’s objection to exhibits 2 through 10. (R. 314-315, RE 5,6). Only trial exhibits 1, 4, 6, 8, and

10 were attached as exhibits to previous filed pleadings. (R. 56-59, 60, 61, 62, 88-99). Therefore,

the trial court’s erred in overruling the Mayor’s objection to the admission of trial exhibits 2, 3, 5,

7 and 9, and using those exhibits to find “The Mayor’s prior attempts to veto negative matters set

out in exhibits offered by the City Council and admitted into evidence were not proper items for the

Mayor to veto.” (R. 154, RE 3).

2. The trial court erred by denying the Motion for Additional Findings of Fact and
Conclusions of Law, and to Alter Order and Opinion and Final Judgment

When ruling on a Rule 56 motion for summary judgment, the trial court may “pierce the

pleadings” and consider extrinsic evidence, such as affidavits, depositions, answers to

interrogatories, and admissions. M.R.C.P. 56. The judgment sought shall be rendered forthwith if

the pleadings, depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law. Id.

The trial court’s denial of the Motion for Additional Findings of Fact and Conclusions of

Law, and to Alter Order and Opinion and Final Judgment was based on its finding that both parties’

motions for summary judgment stated there were no genuine issues of material fact, so the trial court

was not required to “find the facts,” and this was not a case “tried upon the facts without a jury” as

contemplated by M.R.C.P. 52 and, therefore, M.R.C.P. 52 was inapplicable; and, that even if

M.R.C.P. 52 was applicable, the Mayor never requested during or at the conclusion of the hearing

for the trial court to make a findings of fact and conclusions of law. (R. 301, RE 4).

In usual circumstances, even though evidence may be received by way of sworn affidavits,

deposition testimony, and other such evidence, a Rule 56 summary judgment hearing is not an action

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“tried upon the facts without a jury” so as to trigger Rule 52 applicability. Harmon v. Regions Bank,

961 So. 2d 693, 700 (Miss. 2007).

However, the trial court’s admission of trial exhibits trial exhibits 2, 3, 5, 7 and 9 during the

hearing directly contravened the requirements of Rule 56, without any exceptions, because the same

were not on file prior to the hearing. Therefore, the Mayor was not afforded the opportunity to

review and respond to the documents, absent the objection made during the hearing, or provide

opposing affidavits or documents, and did not and could not have agreed that there were no issues

of genuine of fact.

For the reasons stated herein, the Court should find that the trial court erred in admitted trial

exhibits 2, 3, 5, 7 and 9 during the hearing, and reverse and vacate the trial court’s Order and

Opinion, Final Judgment, and Order Denying Motion for Additional Findings of Fact and

Conclusions of Law, and Denying Motion to Alter or Amend Opinion and Judgment.

C. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED THE MAYOR’S

MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT, AND
GRANTED THE CITY COUNCIL’S MOTION FOR SUMMARY JUDGMENT

As argued in the Mayor’s Motion for Summary Judgment, the City Council’s vote to deny

the ratification of the emergency contract with Richard’s Disposal was not a negative vote, it was

a positive vote to disapprove a contract that they were only required to either approve or disapprove,

subject to the Mayor’s veto and other applicable Mississippi law. The City Council’s votes to

approve or disapprove the contracts with Richard’s Disposal, Inc. were an administrative function,

not a legislative function, and therefore, any decision made concerning the contract was an action

of the City Council and subject to the Mayor’s veto. Further, even if the City Council’s vote to

approve or disapprove the contracts with Richard’s Disposal, Inc., was a function of their legislative

function, the same was subject to the Mayor’s veto.

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 The trial court found that the issue presented was whether if in a mayor-council form of

municipal government there is power for the Mayor to veto what is called a negative action by the

City C ouncil. (R. 148, RE 2). The trial court specifically considered mayoral vetoes concerning

the vote of the City Council to disapprove the ratification of an emergency solid waste collection and

hauling agreement with Richard’s Disposal, Inc. for a term of one year, and a regular contract and

related documents with Richard’s Disposal, Inc. for a six year term with four one year extension

options. (R. 148, RE 2).

The trial court maintained the Mayor based his arguments on two statutes, Miss. Code Ann.

§§21-8-17 and 21-8-47. However, the Mayor’s argument did not solely rely on those two statutes,

but is supported by other Mississippi statutes and cases, including but not limited to the legal

authority cited in this brief. Moreover, the trial court, using section 2-66 of the City of Jackson’s

Code of Ordinances entitled “Voting,” found that no action of the City Council shall be considered

adopted unless it receives the affirmative vote of that portion of the council dictated by state law

under the circumstances. (R. 149, RE 2). Additionally, the trial court found that a mayor’s veto is

a part of the legislative process, that a mayor’s power to approve or veto actions of a municipal

legislative body is legislative in nature, and that the executive has only a qualified and destructive

legislative function, and never creative legislative power. (R. 149, RE 2).

The trial court also relied on AG Opinions as persuasive authority that a negative action, i.e.

a failed motion, is not subject to veto by the mayor. (R. 150, RE 2). These AG Opinions were either

solely based on the law of Code Charter municipalities, or derived from other AG Opinions

concerning Code Charter municipalities. In Honorable Mike L. Cordell, the pertinent questions

presented were 1) In a Code Charter Municipality with a Mayor and five Aldermen can the Mayor

veto the Board of Aldermen's inaction on a request of the Mayor?; and, 2) Can the Mayor veto a

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negative vote (vote not to do something), and if so, can the Mayor then affirmatively implement what

the Board voted not to do. For example, if the Board votes not to appoint an individual to an

appointed position in the Municipality, can the Mayor veto their vote not to appoint the person and

then affirmatively appoint that person to the appointed position to the Municipality? 1987 WL

290532, at *1 (Miss. A.G. Oct. 13, 1987). In response to the questions, the Attorney General’s office

opined that based on the authority of the mayor to veto ordinances adopted by the board of aldermen

as provided in Miss. Code Ann. §21-3-15 (Supp. 1986), and the term “ordinances” as used in the

chapter being deemed to include ordinances, resolutions and orders, without any action taken by the

board of alderman, a mayor has nothing to veto. Id. at *1-2. Inaction on a proposal is not subject to

the mayor's veto. Id. at 2.

The question presented in Mr. Allan Freer was if in a code charter municipality the board of

aldermen decides to reinstate the police chief, can the mayor veto the reinstatement? 1997 WL

306797, at *1 (Miss. A.G. May 23, 1997). Based on the veto power of the mayor of a code charter

municipality is set forth in Miss. Code Ann. Section 21-3-15(1) and (2), which gives the mayor the

authority to veto any ordinance, order or resolution, the Attorney General’s office opined that the

mayor of a code charter municipality does not have authority to veto a vote by a board of aldermen

to reinstate a police chief whom the mayor has suspended. Id. (emphasis added). A vote to

reinstate an employee who has been suspended by the mayor is a vote to maintain the status quo, the

employment of the individual, and is not an affirmative action subject to veto by the mayor. Id. The

veto power is a limited negative legislative power given the executive in a code charter

municipality and does not reach to reinstatements of suspended employees by the board; otherwise,

the mayor would in effect have the power to permanently suspend or fire. Id. (emphasis added).

In Bobbie L. Sessums, the question was whether under a Mayor-Aldermen form of

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government, the mayor had the right to veto in the matter of hiring a town attorney. 1990 WL

547728, at *1 (Miss. A.G. Mar. 14, 1990). The Attorney General’s office opined that under the

Aldermanic form of government set forth in Title 21, Chapter 3, the Mayor and Board of Aldermen

jointly constituted the “governing authority” for purposes of hiring a municipal attorney under MCA

§21-15-25. Id. The decision was first in the hands of the Board, but in the event of a tie, the Mayor

could cast the deciding vote under MCA §21-3-15. Id. Additionally, it was their opinion that the

mayor’s veto authority extended to the selection of a municipal attorney. Id. However, a failure to

employ or appoint was not an affirmative board action subject to mayoral veto. Id.

In W. Rayford Jones, Esquire, the issue presented was “Section 21-8-23 provided that a

municipality may have a Department of Administration and such other departments as the council

may establish by ordinance, and that each department shall be headed by a director, who shall be

appointed by the Mayor and confirmed by an affirmative vote of a majority of the council present

and voting at any such meeting. If the majority of the council present and voting at such meeting

votes against such confirmation, is this council action subject to veto by the Mayor? If so, and if such

a veto is not overridden by the council as set forth in section 21-8-17 of the Mississippi Code of

1972, what would be the legal status of the proposed appointment and confirmation?” 1990 WL

547726, at *1 (Miss. A.G. Feb. 28, 1990). The Attorney General’s office referenced its opinion

addressed to Honorable Mike L. Cordell, dated October 13, 1987, which stated, inter alia, that when

the board declines to confirm an appointment by the Mayor in a code charter municipality, such

action is not subject to the Mayor's veto. Id. It is, therefore, the Attorney General’s opinion that the

refusal of the city council to confirm the Mayor's appointee is not subject to the Mayor's veto and

to say otherwise would have the effect of allowing the Mayor to use his veto power to obtain

confirmation without an affirmative vote of a majority of the council as required by section 21-8-23

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(2). Id.

In Gary L. Austin, Esq., the question presented was whether a governing authority may

rescind an order and, if so, whether the mayor may veto such rescission in a municipality with a

mayor and board of aldermen. 2012 WL 2521586, at *1 (Miss. A.G. May 22, 2012). The Attorney

General’s office opined that a governing authority may reconsider any action taken by it, provided

that the reconsideration does not impair contractual obligations already entered into by the board or

work to the harm or detriment of those legally entitled to rely on and actually relying on the board's

previous action. Id. In that specific case, the opinion was that a vote to rescind the termination of

the referenced employee would be equivalent to a vote to rehire said employee and the mayor could

veto an action to rescind a previous vote by the board of aldermen, as he/she was authorized to veto

any action of the board of aldermen, other than a negative one. Id. The Attorney General’s office

supported its opinion by referencing prior AG Opinions and stated that with respect to the veto

authority of a mayor, it was well-settled that a mayor may veto any action of the board of aldermen,

except for a negative vote. Id. (citing MS AG Op., Butler (October 25, 2011); MS AG Op., Tucker

(October 26, 2007)). A vote to repeal, rescind or reconsider a previous action is a positive vote and

can be vetoed by the mayor. Id.

In Mr. Jeff Butler, the issue concerned the authority of a mayor to veto an action taken by the

board of aldermen to terminate the town clerk. 2011 WL 5857735, at *1 (Miss. A.G. Oct. 25, 2011).

The Attorney General’s office opined that in accordance with the authority vested in the mayor, in

a code charter municipality, under Mississippi Code Annotated Section 21-3-15, a mayor may veto

any measure taken by the board of aldermen, including an action to terminate the town clerk. Id.

(emphasis added). However, a negative action, i.e., a failed motion, is not subject to veto by the

mayor. Id.

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 In Daniel K. Tucker, the following issues were presented: (1) Is an action by the board of

aldermen to reappoint the chief of police, which failed by a vote of two “ayes” and three “nays”,

subject to a veto by the mayor?; and, (2) In order to terminate the employment of the chief of police,

must the board of aldermen pass a motion to terminate the police chief, and, if so, would that action,

if it passes by majority vote, be subject to veto by the mayor? 2007 WL 4192067, at *1 (Miss. A.G.

Oct. 26, 2007). The Attorney General’s office opined that: (1) A negative action, i.e., a failed

motion, is not subject to veto by the mayor; and, (2) In order to terminate the employment of the

chief of police, the board of aldermen must pass a motion for such termination, which would be

subject to veto by the mayor. Id. The opinion referred to Sections 21-3-3 and 21-3-5 of the

Mississippi Code which provided for the hiring of appointed chiefs of police and other appointed

municipal officers and employees in the Code Charter and, subject to the mayor's veto, the board of

aldermen hire and fire these municipal officers and employees. Id.

As a result of its consideration of the aforementioned AG Opinions, the trial court found that

when a matter such as the solid waste contract in this matter was presented in a City Council

meeting, the failed ratification constituted inaction, not action, and the contract was never adopted

by the City Council. (R. 151, RE 2). Therefore, when a matter is not passed by the City Council, it

is a negative action to which the Mayor does not have the power to veto. (R. 151, RE 2). Further,

the trial court found that “A mayoral veto of a failed mayoral supported motion with no 2/3rds

council over-ride vote would effectively cause the motion to have passed the council. Such a

conundrum would result in the creation of a municipal ordinance, passage of a motion, or other

affirmative action of the council without their having been an ‘affirmative’ majority council vote.

And such an interpretation would give the mayor ‘creative legislative power’ contrary to law, and

effectively transform the majority vote legislative mandate into a 2/3rds over-ride vote requirement.”

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(R. 151, RE 2). However, the trial court misapprehended and misapplied Mississippi law.

Pursuant to Miss. Code Ann. §21-8-15, the executive power of the municipality shall

be exercised by the mayor, and the mayor shall have superintending control of all the officers and

affairs of the municipalities, and shall take care that the laws and ordinances are executed. The

mayor shall enforce the charter and ordinances of the municipality and all general laws applicable

thereto, and no member of the council shall give orders to any employee or subordinate of the

municipality other than the council member’s personal staff. Miss. Code. Ann. §21-8-17(1). The

legislative power of the municipality shall be exercised by the municipal council, except as may

otherwise provided by general law. Miss. Code. Ann. §21-8-9. In mayor-council municipalities, the

term “ordinance” as used in the chapter is deemed to include ordinances, resolutions, orders and any

other official actions of the council, except those procedural actions governing the conduct of the

council’s meetings, appointing a clerk of council, and exercising the council’s investigative functions

under Section 21-8-13(4)(emphasis added).

The expenditure of funds within the approved budget, appropriation, and general fiscal

management legislation is an executive function. Jordan v. Smith, 669 So. 2d 752, 759 (Miss. 1996),

overruled by Myers v. City of McComb, 943 So. 2d 1 (Miss. 2006)(overruled on other grounds).

Article 1, Section 2 of the Mississippi Constitution prohibits the exercise of “any power ” belonging

to one branch by a member of another branch. Myers v. City of McComb, 943 So. 2d 1, 4 (Miss.

2006). The Mississippi Supreme Court has stated that no member of the legislative branch may,

consistent with the constitution, exercise any powers essentially executive in nature. Id. Sections

1 and 2 of Article 1 of the Mississippi Constitution are to be applied to municipalities and the

persons or collection of persons which compose same. Id. at 6.

The Mayor’s authority is analogous to the authority of the Governor of Mississippi as

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expounded in Clark v. Bryant, 253 So. 3d 297 (Miss. 2018). Legislative power, as distinguished

from executive power, is the authority to make laws. Id. at 301 (Miss. 2018). Executive power is

the power to administer and enforce the laws as enacted by the legislature and as interpreted by the

courts. Id. at 302. Execution is at the core of executive power. Id. In Alexander, the Court clarified

the realms of these two branches of government. Id. Central to its holding, Alexander discussed two

separate constitutional powers that continue to shape Mississippi's budgeting process today: (1) the

budget-making power and (2) the budget-control process. Id. Constitutionally, budget-making is a

legislative prerogative and responsibility in Mississippi. Id. The legislature has the power and

prerogative to provide for the collection of revenues through taxation and other means and to

appropriate or direct the expenditure of monies so raised. Id.

Though subject to gubernatorial veto, the primary budget-making responsibility vests in the

legislature. Id. The budget-control process presents a different issue in that it is an executive

function. Id. While the Court framed the budget-control process as a “process” and a “function,” it

did recognize that budget control is an “executive power.” Id. An explanation of budget control is

that once taxes have been levied and appropriations made, the legislative prerogative ends, and

executive responsibility begins to administer the appropriation and to accomplish its purpose,

subject, of course, to any limitations constitutionally imposed by the legislature. Id. The Court has

held that the constitution does not permit the legislature to directly or indirectly invade the powers

and prerogatives of the executive branch of government. Id. The legislature thus may not administer

an appropriation once it has been lawfully made and is prohibited from imposing new limitations,

restrictions or conditions on the expenditure of such funds, short of full legislative approval. Id. at

302-03. Article 5, Section 123 of Mississippi's Constitution supports Alexander's analysis. The

section reads, “The Governor shall see that the laws are faithfully executed.” Id. at 303. The

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Governor (as the head of the executive branch) must faithfully execute all laws passed by the

Legislature. Id. Similar to the statutory requirements imposed on a mayor in a mayor-council

municipality, the Constitution charges the Governor to “see that the laws are faithfully executed.”

Id. In Clark, the Court found that as the Executive's budget reductions were an exercise of the

Executive's constitutional power to control the budget. Id.

Similar to the facts in Sunland Pub. Co. v. City of Jackson, the City Council’s role in voting

on the ratification of both the emergency residential solid waste contract and the regular solid waste

contract pursuant to the required process was merely a formality or an administrative function of the

councilpersons. 234 F. Supp. 2d 626 (S.D. Miss. 1999). In Sunland Pub.Co., the United States

District Court found that the “degree of discretion” to be considered legislative, and, therefore, were

deemed administrative. (Id. at 631). Specifically, the facts in Sunland Pub.Co. concerned the award

of a publishing contract, and the Mississippi statutes which detailed the requirements and procedures

necessary for publication and the “Advertisement for Bids” left little, if any, discretion to

councilpersons in deciding which newspaper to award the contract. Id.

Two tests are used to distinguish between legislative and non-legislative acts. Id. If the

underlying facts on which the decision is based are “legislative facts,” such as “generalizations

concerning a policy or state of affairs,” then the decision is legislative. Id. If the facts used in the

decision-making are more specific, such as those that relate to particular individuals or situations,

then the decision is administrative. Id. at 631-32. The second test focuses on the “particularity of

the impact of the state action.” Id. at 632. If the action involves establishment of a general policy,

it is legislative; if the action singles out specific individuals and affects them differently from others,

it is administrative. Id. The court held that the acts of the councilpersons were administrative

pursuant to Mississippi statute as their decisions were to be based on specific facts, and did not

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impact a broad group or establish a general policy. Id.

Regular contracts for garbage collection or disposal, contracts for solid waste collection or

disposal, and contracts for sewage collection or disposal are excepted from bid requirements. Miss.

Code. Ann. § 31-7-13(m)(xxiii). However, before entering into any contract for garbage collection

or disposal, contract for solid waste collection or disposal or contract for sewage collection or

disposal, which involves an expenditure of more than Seventy-five Thousand Dollars ($75,000.00),

a governing authority or agency shall issue publicly a request for proposals concerning the

specifications for such services which shall be advertised for in the same manner as provided in the

section for seeking bids for purchases which involve an expenditure of more than the amount

provided in paragraph (c) of the section. Miss. Code Ann. § 31-7-13(r)(emphasis added). Any

request for proposals when issued shall contain terms and conditions relating to price, financial

responsibility, technology, legal responsibilities and other relevant factors as are determined by the

governing authority or agency to be appropriate for inclusion; all factors determined relevant by the

governing authority or agency or required by this paragraph (r) shall be duly included in the

advertisement to elicit proposals. Id.(emphasis added). After responses to the request for proposals

have been duly received, the governing authority or agency shall select the most qualified proposal

or proposals on the basis of price, technology and other relevant factors and from such proposals,

but not limited to the terms thereof, negotiate and enter into contracts with one or more of the

persons or firms submitting proposals. Id. (emphasis added).

As in Sunland Pub. Co., the requirements of the request for proposals in the City of Jackson,

and the requirement that the most qualified proposal be selected based on the basis of price,

technology and other relevant factors in this action deem the City Council’s role in approving a

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contract for the collection of residential solid waste administrative, not legislative, in nature due to

the little, if any, discretion in determining whether to award the contract, the requirement that the

decision be based on specific facts, the lack of an impact of the decision on a broad group, and the

decision’s failure to establish a general policy.

Furthermore, six of the seven AG Opinions referenced by the trial court concerned issues

presented regarding matters in a municipality with a code charter as codified in Miss. Code Ann.

§§21-3-1 - 21-3-25. Municipalities with code charters and mayor-council forms of govern differ

significantly in relation to the legal authority granted to the mayor, specifically, in the veto authority

granted to the mayor. In a code charter, the authority of the board of aldermen and the mayor are

provided in the Miss. Code. Ann. § 21-3-15 as follows:

(1) The mayor shall preside at all meetings of the board of aldermen,
and in case there shall be an equal division, shall give the deciding
vote. The executive power of the municipality shall be exercised by
the mayor, and the mayor shall have the superintending control of all
the officers and affairs of the municipality, and shall take care that the
laws and ordinances are executed.

(2)(a) The legislative power of the municipality shall be exercised by

the board of aldermen by a vote within a legally called meeting. No
member of the board of aldermen shall give orders to any employee
or subordinate of a municipality other than the alderman's personal
staff.
(b) Ordinances adopted by the board of aldermen shall be
submitted to the mayor. The mayor shall, within ten (10) days
after receiving any ordinance, either approve the ordinance by
affixing his signature thereto, or return it to the board of
aldermen by delivering it to the municipal clerk together with
a written statement setting forth his objections thereto or to
any item or part thereof. No ordinance or any item or part
thereof shall take effect without the mayor's approval,
unless the mayor fails to return an ordinance to the board
of aldermen prior to the next meeting of the board, but no
later than fifteen (15) days after it has been presented to
him, or unless the board of aldermen, upon reconsideration
thereof on or after the third day following its return by the

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 mayor, shall, by a vote of two-thirds ( 2/3 ) of the members
of the board, resolve to override the mayor's veto.

(3) The term “ordinance” as used in this section shall be deemed to

include ordinances, resolutions and orders.

(emphasis added).

In contrast, in a mayor-council municipality, the mayor and council’s respective authority are

provided in multiple statutes as follows:

1) Miss. Code Ann. § 21-8-7(1): Each municipality operating under the mayor-council
form of government shall be governed by an elected council and an elected mayor.

2) Miss. Code. Ann. § 21-8-9: The legislative power of the municipality shall be
exercised by the municipal council, except as may be otherwise provided by general
law.

3) Miss. Code. Ann. § 21-8-13(4): The authority of the council is otherwise legislative
and is executed by a vote within a legally called meeting. No member of the council
shall give orders to any employee or subordinate of a municipality other than the
council member's personal staff. The council shall deal with the municipal
departments and personnel solely through the mayor.

4) Miss. Code. Ann. § 21-8-15: the executive power of the municipality shall be
exercised by the mayor, and the mayor shall have the superintending control of all the
officers and affairs of the municipality, and shall take care that the laws and
ordinances are executed.

5) Miss. Code Ann. § 21-8-17:

(1) The mayor shall enforce the charter and ordinances of the municipality and all
general laws applicable thereto. He shall annually report to the council and the public
on the work of the previous year and on the condition and requirements of the
municipal government and shall, from time to time, make such recommendations for
action by the council as he may deem in the public interest. He shall supervise all of
the departments of the municipal government and shall require each department to
make an annual report and such other reports of its work as he may deem desirable.
No member of the council shall give orders to any employee or subordinate of a
municipality other than the council member's personal staff.

(2) Ordinances adopted by the council shall be submitted to the mayor and he shall,
within ten (10) days (not including Saturdays, Sundays or holidays) after receiving
any ordinance, either approve the ordinance by affixing his signature thereto or return

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 it to the council by delivering it to the clerk of the council together with a statement
setting forth his objections thereto or to any item or part thereof. No ordinance or
any item or part thereof shall take effect without the mayor's approval, unless the
mayor fails to return an ordinance to the council prior to the next council meeting,
but no later than fifteen (15) days (not including Saturdays, Sundays or holidays)
after it has been presented to him or unless the council upon reconsideration
thereof not later than the tenth day (not including Saturdays, Sundays or holidays)
following its return by the mayor, shall, by a vote of two-thirds ( 2/3 ) of the
members present and voting resolve to override the mayor's veto.

(3) The mayor may attend meetings of the council and may take part in discussions
of the council but shall have no vote except in the case of a tie on the question of
filling a vacancy in the council, in which case he may cast the deciding vote.

(emphasis added).

6) Miss. Code Ann. § 21-8-27: The members of the council shall not direct or dictate
the appointment of any person to or his removal from office by the mayor or any
department directors. Except for the purposes of inquiring or receiving information
or advice, the council shall deal with the municipal departments and personnel solely
through the mayor and no member of the council shall give orders to any subordinate
of the municipality. The council shall have the power to investigate any part of the
municipal government and for that purpose to compel the attendance of witnesses
and the production of documents and other evidence.

7) Miss. Code Ann. §21-8-47: The term “ordinance” as used in this chapter shall be
deemed to include ordinances, resolutions, orders and any other official actions
of the council, except those procedural actions governing the conduct of the
council’s meetings, appointing a clerk of council, and exercising the council’s
investigative functions under Section 21-8-13(4).

(emphasis added).

Pursuant to Miss. Code. Ann. § 21-1-11, the court must take judicial notice of the class to

which each of the municipalities of the state belongs, and of its powers under the provisions of this

title. According to the Mississippi Supreme Court, we must give statutes the construction that

effectuate their purposes rather than defeat them. Legislature of State v. Shipman, 170 So. 3d 1211,

1216 (Miss. 2015)(citing Brady v. John Hancock Mut. Life Ins. Co., 342 So.2d 295 (Miss.1977)).

As it relates to this litigation, the most important differences between a code charter and a mayor-

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council municipality is the veto authority granted to the mayor in connection with the definition of

the word “ordinance.”

In a code charter, the mayor is granted authority to veto ordinances. However, the definition

of an “ordinance” only includes ordinances, resolutions and orders. In contrast, the mayor in a

mayor-council municipality is granted authority to veto ordinances and the definition of an

“ordinance” in the chapter is much broader as it includes ordinances, resolutions, orders and any

other official actions of the council. The plain language of the pertinent statutes grants the Mayor

authority to veto all official actions of the council, with limited exceptions. The two statutory

limitations on the mayor’s veto authority are found in 1) Miss. Code Ann. §21-8-23, which

specifically requires confirmation by an affirmative vote of a majority of the council present and

voting at any such meeting for the appointment of the directors for each municipal department; and,

2) Miss. Code. Ann. §21-8-7(c)(i), which prohibits the Mayor from vetoing an ordinance that

redistricts the municipality. The only AG Opinion cited by trial court regarding the Mayor’s veto

authority concerned the interpretation of Miss. Code Ann. §21-8-23. See W. Rayford Jones, Esquire,

1990 WL 547726 (Miss. A.G. Feb. 28, 1990). Upon information and belief, Miss. Code Ann.

§21-8-23 is the only statute in a mayor-council municipality that specifically requires an affirmative

vote of a majority of the council present and voting for any matter to be adopted by the council.

In Mississippi, a municipality is a “creature” of the State, possessing only such power as may

be granted by statute. Peterson v. City of McComb City, 504 So. 2d 208, 209 (Miss. 1987). Yet,

municipalities are not confined to a single method of operation, in the absence of statutory

prescription. Id. In Webb v. City of Meridian, 195 So.2d 832, 835 (Miss.1967), the Court stated,

“[I]f a power is conferred and the law is silent as to the mode of exercising it, municipal authorities

are clothed with a reasonable discretion to determine the manner in which it shall be carried out. All

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reasonable modes are inferred.” Id.

If the Mississippi legislature had intended to limit the Mayor’s veto authority to only the City

Council’s affirmative votes or votes of approval, it would not have defined “ordinance” in Miss.

Code Ann. §21-8-17 to include any other official actions of the council other than ordinances,

resolutions, and orders, while also creating a separate statute specifically giving the Mayor the

authority to veto all “ordinances.” The Mississippi legislature would also not have given the Mayor

exclusive authority to supervise all of the departments of the municipal government and the

superintending control of all the officers and affairs of the municipality, which includes the Public

Works Department that manages the collection of residential solid waste. Otherwise, the included

language of “any other official actions of the council” would have no use or effect, especially in the

case of the execution of a contract for the collection of solid waste pursuant to statutory regulations.

If the Mayor was not allowed to veto the City Council’s positive vote to disapprove the ratification

of a contract for the collection of solid waste, which was negotiated pursuant to the authority vested

in the Mayor, and brought to the City Council after all statutory requirements for its procurement

were met, then the City Council would, in fact, have superintending control of the Public Works

Department and affairs of the municipality contrary to Mississippi law.

The City Council can only exercise its authority by voting in a legally called meeting, and

is required by statute to approve and adopt all of the actions it takes during each meeting in its

minutes. Specifically, in accordance with Miss. Code. Ann. §21-15-33, the minutes of every

municipality must be adopted and approved by a majority of all the members of the governing body

of the municipality. A county or municipality can only act through its minutes and those actions must

be evidence in county or municipality’s minutes. Tupelo Redevelopment Agency v. Abernathy, 913

So. 2d 278, 288 (Miss. 2005). A public board speaks and acts only through its minutes. Kennedy

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v. Claiborne Cnty. by & through its Bd. of Supervisors, 233 So. 3d 825, 829 (Miss. Ct. App. 2017).

The minutes are the sole and exclusive evidence of what the board did and must be the repository

and the evidence of their official acts. Id.

Mississippi law does not limit the definition of “official actions” of a city council to an

affirmative vote. In Gannett River States Pub. Corp. v. City of Jackson, the Mississippi Supreme

Court ruled that under the Open Meeting Law definition of a “meeting,” “official acts” includes

action relating to formation and determination of public policy, but excludes purely social functions.

866 So. 2d 462 (Miss. 2004). Additionally, any person aggrieved by a judgment or decision of the

board of supervisors of a county, or the governing authority of a municipality, may appeal the

judgment or decision to the circuit court of the county in which the board of supervisors is the

governing body or in which the municipality is located. Miss. Code. Ann. § 11-51-75. The “acts”

of a board include voting to deny relief request. See Wirtz v. Adams Cnty. Bd. of Supervisors, 278

So. 3d 1170, 1172 (Miss. Ct. App. 2019)(The Board of Supervisors denied the Appellant’s request

for the Board to take certain action against his neighbor).

Therefore, the City Council’s authority is only executed by a vote in a legally called meeting

and a municipality can only act through its minutes which must include all actions taken. The

minutes are the sole and exclusive evidence of what the City Council did and must be the repository

and the evidence of their official acts, which include voting to disapprove a contract for the

collection of residential solid waste.

Additionally, the Mayor declared a local emergency and negotiated an emergency contract

for the collection of solid waste pursuant to Miss. Code Ann. §33-15-17(d). In carrying out the

provisions of the article, each municipality shall have the power to enter into contracts and incur

obligations necessary to combat such disaster, protecting the health and safety of persons and

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property, and providing emergency assistance to the victims of such disaster. Miss. Code Ann. §33-

15-17(b). Further, the powers may be exercised in light of the exigencies of the extreme emergency

situation without regard to time-consuming procedures and formalities prescribed by law pertaining

to entering into contracts, inter alia. Id. In the event a local emergency is proclaimed by the mayor

of a municipality, the governing body of such municipality or the governing body of such county

shall review and approve or disapprove the need for continuing the local emergency at its first

regular meeting following such proclamation or at a special meeting legally called for such review.

Miss. Code. Ann. § 33-15-17. Thereafter, the governing body of the municipality shall review the

need for continuing the local emergency at least every thirty (30) days until such local emergency

is terminated, and shall proclaim the termination of such local emergency at the earliest possible date

that conditions warrant. Id. During a local emergency, the governing body of a political subdivision

may promulgate orders and regulations necessary to provide for the protection of life and property,

including orders or regulations imposing a curfew within designated boundaries where necessary to

preserve the public order and safety. Id. Such orders and regulations and amendments and

rescissions thereof shall be in writing and shall be given widespread notice and publicity. Id. The

authorization granted by this section to impose a curfew shall not be construed as restricting in any

manner the existing authority to impose a curfew pursuant to police power for any other lawful

purpose. Id.

In accordance with Miss. Code. Ann. § 33-15-31, regarding orders, rules and regulations

issued pursuant to Emergency Management Law:

(a) The governing bodies of the political subdivisions of the state and
other agencies designated or appointed by the Governor are
authorized and empowered to make, amend, and rescind such orders,
rules, and regulations as may be necessary for emergency
management purposes and to supplement the carrying out of the

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 provisions of this article, but not inconsistent with any orders, rules
and regulations promulgated by the Governor or by any state agency
exercising a power delegated to it by him.

(b) All orders, rules, and regulations promulgated by the Governor,

the Mississippi Emergency Management Agency or by any political
subdivision or other agency authorized by this article to make orders,
rules and regulations, shall have the full force and effect of law,
when, in the event of issuance by the Governor, or any state agency,
a copy thereof is filed in the office of the Secretary of State, or, if
promulgated by a political subdivision of the state or agency thereof,
when filed in the office of the clerk of the political subdivision or
agency promulgating the same. All existing laws, ordinances, rules
and regulations inconsistent with the provisions of this article, or of
any order, rule, or regulation issued under the authority of this article,
shall be suspended during the period of time and to the extent that
such conflict, disaster or emergency exists.

(c) In order to attain uniformity so far as practicable throughout the

country in measures taken to aid emergency management, all action
taken under this article and all orders, rules and regulations made
pursuant thereto, shall be taken or made with due consideration to the
orders, rules, regulations, actions, recommendations, and requests of
federal authorities relevant thereto and, to the extent permitted by
law, shall be consistent with such orders, rules, regulations, actions,
recommendations and requests.

Miss. Code Ann. §33–15–31(b) suspends existing laws and obligations that are inconsistent

with the provisions of the Emergency Management Law. W.C. Fore v. Mississippi Dep't of Revenue,

90 So. 3d 572, 579 (Miss. 2012). It does not, however, suspend all existing laws and obligations that

are consistent with the statute. Id.

The Mayor’s declaration of a local emergency and negotiation of an emergency contract for

the collection of residential solid waste was supported by the then-quickly approaching end to a

previous emergency contract for the collection of residential solid waste, and the Mississippi statutes

that require the municipal governing body to provide for the collection and disposal of garbage and

the disposal of rubbish. This is especially important because if the municipality fails to collect

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residential solid waste, after a hearing regarding the same, it could be subject to a fine of a civil

penalty of not more than Twenty-five Thousand Dollars ($25,000.00) for each violation of the

statute. (R. 120). Miss. Code. Ann. §§ 17-17-5 and 17-17-29. Additionally, the Mayor’s

negotiation of a contract with Richard’s Disposal for the emergency collection of residential solid

waste was in accordance with the emergency statutes, and did not conflict with any other consistent

Mississippi laws.

For the reasons stated herein, the Mayor requests this Honorable Court find that: 1)

Mississippi law provides that any vote taken by the City Council in a legally called meeting, whether

it affirms/approves or denies/disapproves the subject upon which the vote was taken, is an “official

action” of the City Council; 2) The Mayor, pursuant to statute, is granted the authority to veto the

City Council’s official actions; and, 3) The approval and adoption of the City Council’s minutes

containing its official actions satisfies the “adoption” required by Miss. Code Ann. §21-8-17(2).

CONCLUSION

The trial court erred when it entered its Order and Opinion, Final Judgment, and Order

Denying Motion for Additional Findings of Fact and Conclusions of Law, and Denying Motion to

Alter or Amend Opinion and Final Judgment. Therefore, Chokwe A. Lumumba, in his official

capacity as Mayor of the City of Jackson, requests this Honorable Court clarify the extent of the

mayor’s veto authority in a mayor-council municipality as requested herein. The Mayor further

requests the Court find that the trial court erred when it admitted trial exhibits 2, 3, 5, 7 and 9 during

the hearing, and denied the Motion for Additional Findings of Fact and Conclusions of Law, and to

Alter Order and Opinion and Final Judgment the Court.

Therefore, this Honorable Court should reverse and vacate the trial court’s Order and

Opinion, Final Judgment, and Order Denying Motion for Additional Findings of Fact and

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Conclusions of Law, and Denying Motion to Alter or Amend Opinion and Final Judgment.

Respectfully submitted,

CHOKWE A. LUMUMBA, IN HIS OFFICIAL

CAPACITY AS MAYOR OF THE CITY OF
JACKSON, APPELLANT

BY: s/Felecia Perkins

FELECIA PERKINS, ESQ.
Mississippi Bar Number 10078
JESSICA AYERS, ESQ.
Mississippi Bar Number 103685
LAW OFFICE OF FELECIA PERKINS, P. A.
Post Office Box 21
Jackson, Mississippi 39205-0021
Office: (601) 352-5053
Counsel for Chokwe A. Lumumba, in his Official
Capacity as Mayor of the City of Jackson

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 CERTIFICATE OF SERVICE

I, Felecia Perkins, Attorney for Appellant, hereby certify that on this day I electronically filed

the foregoing Brief of Appellant with the Clerk of Court using the MEC system which sent

information of such filing to the following:

John P. Scanlon, Esq. Deshun T. Martin, Esq.

Jerry J. Mills, Esq. 228 East Capitol Street
Zachary L. Giddy, Esq. Jackson, Mississippi 39201
800 Avery Blvd, North, Ste 101 Counsel for Appellee
Ridgeland, Mississippi 39157
Counsel for Appellee

I further certify that I have cause to be transmitted by electronic mail, a true and correct copy

of the Brief of Appellant to the following:

Honorable Larry E. Roberts

Special Chancellor
Post Office Box 1002
Meridian, Mississippi 39302
lroberts_judge@yahoo.com
Special Chancellor

This the 10th day of October, 2022.

s/ Felecia Perkins
FELECIA PERKINS

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