DuPree v. Carroll, et al.


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Docket Number: 2006-CA-01875-SCT
Linked Case(s): 2006-CA-01875-COA ; 2006-CA-01875-SCT ; 2006-CA-01875

Supreme Court: Opinion Link
Opinion Date: 10-25-2007
Opinion Author: DIAZ, P.J.
Holding: Affirmed

Additional Case Information: Topic: Writ of mandamus - Resubmission of directors by major - Standing - Section 11-41-1 - Section 21-8-23 (2)
Judge(s) Concurring: SMITH, C.J., WALLER, P.J., CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ.
Concurs in Result Only: EASLEY, J.
Procedural History: Bench Trial
Nature of the Case: Standing for Writ of Mandamus

Trial Court: Date of Trial Judgment: 09-29-2006
Appealed from: Forrest County Circuit Court
Judge: Robert Helfrich
Disposition: Court agreed with city council members & issued a writ demanding that the mayor resubmit the department heads for approval
Case Number: CI06-0132

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: JOHNNY L. DUPREE, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF HATTIESBURG, MISSISSIPPI




CHARLES E. LAWRENCE, JR.



 

Appellee: CARTER CARROLL, C. E. BAILEY AND KIM BRADLEY S. WAYNE EASTERLING FRANK D. MONTAGUE, JR.  

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Topic: Writ of mandamus - Resubmission of directors by major - Standing - Section 11-41-1 - Section 21-8-23 (2)

Summary of the Facts: In 2001, Johnny DuPree became the mayor of Hattiesburg and nominated department directors pursuant to statute. The council approved the directors. Then, DuPree was re-elected and began a second term in 2005. At that time, the mayor indicated he was not going to resubmit the department directors for approval to the council. The council demanded he do so. DuPree refused, and council members Carter Carroll, C.E. Bailey, and Kim Bradley sought a writ of mandamus to compel him to comply with what they perceived the law required. The circuit court issued the writ demanding that the mayor resubmit the department heads for approval. The mayor appeals.

Summary of Opinion Analysis: Issue 1: Standing The writ of mandamus exists to force an elected official to perform a duty of office. Section 11-41-1 authorizes the writ, which can only be issued on the complaint of the state, by its Attorney General or a district attorney, in any matter affecting the public interest, or on the complaint of any private person who is interested, the judgment shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law. The petition must be brought by the officers or persons authorized to bring the suit; there must appear a clear right in petitioner to the relief sought; there must exist a legal duty on the part of the defendant to do the thing which the petitioner seeks to compel; and there must be an absence of another remedy at law. The crux of the analysis in the present case is whether the council members have a separate interest or one in excess of the general public. The council members argue that they are prevented from exercising their legislative power as authorized by the Legislature, which vests in them an interest separate from, and in excess of, the general public. The mayor argues that if you have a duty as a result of your elected position and it affects a matter of public interest, then the mandamus statute requires that a petition for a writ of mandamus be brought on complaint by the state. Yet the statute does not set out such a requirement nor does the mayor cite any case law in support of such an interpretation of the statute. It is undisputed by the parties that the mayor did have a duty to nominate, and the council a duty to approve or disapprove, directors of municipal departments. It was also undisputed by the parties that there was no other legal remedy available. Because the council members have demonstrated that, by virtue of their position as the legislative check and balance on the executive power of the mayor, they have a separate interest or an interest in excess of the general public, they have the standing necessary to seek a writ of mandamus. Issue 2: Resubmission of directors Section 21-8-23 (2) requires that the mayor nominate the directors of the city departments. The nominated directors may only serve if approved by the council. The statute also provides that each director shall serve during the term of office of the mayor appointing him, and until the appointment and qualification of his successor. The statute clearly vests in the council checks and balances on the executive powers of the mayor. A plain reading of the statute supports the conclusion that “the term of office” is to be read in the singular, meaning that a director, once confirmed, serves only for the term of the mayor nominating him. An interpretation which allowed those council members who were present when a mayor first took office to have greater powers than those council members present at the beginning of the new term of office would subvert the statutory scheme. A contrary construction of the statute where the simple re-election of a mayor would nullify the checks and balances on executive power expressly created by the Legislature would disregard the clear intention of that body. Accordingly, a mayor shall resubmit directors for approval by the council if the mayor is re-elected, even if the director is a holdover from the previous term.


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