IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.2015-TS-01183

Transcription

1 E-Filed Document Aug :05: CA Pages: 29 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.2015-TS TUNICA COUNTY, MISSISSIPPI APPELLANT vs. VS. TOWN OF TUNICA, MISSISSIPPI AND TUNICA COUNTY, MISSISSIPPI SCHOOL DISTRICT APPELLEES ON APPEAL FROM THE CIRCUIT COURT OF TUNICA COUNTY, MISSISSIPPI CIVIL ACTION NO BRIEF OF APPELLEE STATE OF MISSISSIPPI JIM HOOD, ATTORNEY GENERAL Lee D. Thames, Jr. (MSB #10314) Office of the Attorney General P.O. Box 220 Jackson, Mississippi Telephone: (601) Facsimile: (601) us Counsel for the State of Mississippi

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO TS TUNICA COUNTY, MISSISSIPPI vs. TOWN OF TUNICA, MISSISSIPPI AND TUNICA COUNTY, MISSISSIPPI SCHOOL DISTRICT APPELLANT APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record, in accordance with Rules 28(a)(l) and 28(c) of the Mississippi Rules of Appellate Procedure, certifies that the following persons have an interest in the outcome of this case. These representations are made in order that the Court may evaluate possible disqualification or recusal. 1. The Town of Tunica, Mississippi, Appellee; 2. J. Chadwick Mask, Christopher H. Coleman, Clifton M. Decker, and the law firm ofcan-oll Wan-en & Parker, PLLC, counsel for the Town of Tunica, Mississippi; 3. Tunica County, Mississippi, Appellant; 4. Ellis Turnage and the Turnage Law Office, counsel for Ttmica County, Mississippi; 5. Tunica County School District, Appellee; 6. John May, Jr., Regina May, and the May Law Firm, counsel for Tunica County School District. 7. State of Mississippi, Appellee; and 8. Lee D. Thames, Jr., MS Attorney General's Office, counsel for State of Mississippi. Dated: August 29th, s/lee D. Thames, Jr. Lee D. Thames, Jr. Legal Assistant Attorney General MS Attorney General's Office Counsel for the State of Mississippi

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii, iii TABLE OF AUTHORITIES... iv, v, vi, vii STATEMENT OF THE CASE... 1 SUMMARY OF THE ARGUMENT...,...,...,...,...,...,... 1,2,3 ARGUMENT...,...,...,.,.,.. ".. "."...,.,... "....3 I. BURDEN TO PROVE A LAW UNCONSTITUTIONAL...,...,...,...,....3,4,5 II. ISSUES RAISED BY TUNICA COUNTY..,...,...,5 A. THE COUNTY'S FIRST ARGUMENT IS THAT THE COURT'S REVIEW OF SUMMARY JUDGMENT ON THE CONSTITUTIONALLY OF STATUES IS DE NOVO..,...,...,...,...,..,...,...,...,5 B, THE PROVISION OF LOCAL AND PRIVATE LAWS H.B (2004) DOES NOT VIOLATE MISS, CONST. ART. 3, SEC. 14 DUE PROCESS NOR SECTION 32 CONSTRUCTION OF ENUMERATED RIGHTS...,.. ".,.,.".".. "...,...,..,...,... 6,7,8 C. NOT A DONATION IN VIOLATION OF ART. 4, SEC ,..,...,..,... 8,9 D. HOUSE BILL 1002 DOES NOT SUSPEND A GENERAL LAW IN VIOLATION OF ARTICLE 4, SECTION 88 OF THE MISSISSIPPI CONSTITUTION... 9,10 E. H.B DOES NOT VIOLATE MISSISSIPPI CONSTITUTION, ARTICLE 4, 89 ISSUE..,... "...,... ".,.,.".. "...,...,..,...,.,... ".. "..,...,...,..,..,..,..., 1 0, 11 F. HOUSE BILL 1002 DOES NOT PROVIDE UNCONSTITUTIONAL SUPPORT FOR A COMMON SCHOOL IN VIOLATION OF ARTICLE 4, SECTION 90(p) OF THE MIS SIS SIPPI CONSTITUTION...,...,... 12,13 G, HOUSE BILL 1002 IS AN ACT OF THE MISSISSIPPI LEGISLATURE, NOT THE TUNICA COUNTY BOARD OF SUPERVISORS, AND IT IS BINDING ON TUNICA COUNTY.,..,."..,...,...,..,... "...,...,..,.. ".. "...,..,...,..,.. 13, 14, 15 ii

4 H. THE PROVISIONS OF HOUSE BILL 1002 ARE INDEPENDENT OF AND DO NOT CONFLICT WITH THE MISSISSIPPI GAMING CONTROL ACT....15,16,17 I. THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT AND DISMISSING THE COUNTY'S FIRST AMENDED COMPLAINT WITH PREJUDICE... 17,18,19 J WHETHER THE TRIAL COURT DID NOT ERR IN A WARDING ATTORNEY'S FEES AND INTEREST TO THE TOWN OF TUNICA CONCLUSION CERTIFICATE OF SERVICE iii

5 TABLE OF AUTHORITIES CASES Cases Adams v. Cinemark USA, Inc. 831 So.2d 1156 (Miss. 2002) Appling County v. Municipal Electric Authority of Georgia 621 F.2d (5 th Cir. 1980)... 6 Bell v. Cummins 130 Tenn. 566(S.W. 290, L.R.A. 1915D, 274)... 7 Biloxi Firefighters Association v. City of Biloxi 810 So.2d 589 (Miss. 2002) Black v. City of Tupelo 853 So.2d 1221 (Miss. 2003) Board of Levee Commissioners of the Orleans Levee Board v. Huls 852 F.2d 140 (5 th Cir. 1988)... 6 Bond v. Marion County Bd. of Supervisors 807 So.2d 1208 (Miss. 2001) Cities of Oxford, Carthage, Starkville and Tupelo v. Northeast Elec. Power Ass'n 704 So.2d 59 (Miss. 1997)... 4 City of Canton v. Nissan North America, Inc 870 F. Supp. 2d 430 (S.D. Miss City of Hattiesburg v. Precision Const., LLC 2014-CA COA, 2016 WL , at *4 (Miss. Ct. App. May 17, 2016) City of Safety Harbor v. Birchfield 529 F.2d 1251 (5 th Cir. 1976)... 6 City of Starkville v. 4-County Electric Power Ass'n 819 So.2d 1216 (Miss. 2002) iv

6 City of Trenton v. State of New Jersey 262 U.S. 182 (1923)... 6 Columbia Land Development LLC 868 So.2d at ,18 Craig v. Mercy Hospital- Street Memorial 209 Miss. 427 So.2d 809 (1950)... 9 Culley v. Pearl River Industrial Commission 108 So.2d 390 (Miss. 1959)... 8 Donelson v. Louisiana Division of Administrative Law 522 F.3d 564 (5 th Cir. 2008)... 6 Edwards Hotel & City R. Co. v. Jackson 51 So. 802 (Miss. 1910) Gully v. Williams Bros. 180 S. 400 (Miss. 1938) Haas v. Hancock County 183 Miss. 365 So. 812 (1938) Harrison County School District v. Long Beach School District 700 So.2d 286 (Miss. 1997)... 12,13 Humble Oil & Refining Co. v. State 41 So.2d 26 (Miss. 1949) In ReHooker 87 SO.3d401 (Miss. 2012) Jackson County v. Neville 131 Miss. 599 So.626 (1923)... 7 James v. State 731 So.2d 1135 (Miss. 1999)....4 Lang v. Board of Supervisors 114 Miss. 341, 75 So. 126( Miller v. Myers 38 So.3d 648 (Miss. Ct. App. 2010) v

7 Mississippi MunicipalAss'n Inc. v. State 390 So.2d 986 (Miss. 1980)... 8 Mississippi State Tax Commission v. Tennessee Gas Trans. Co. 116 So.2d 551 (Miss. 1959)....4 Moore v. Board of Supervisors of Hinds County 658 So.2d 883 (Miss. 1995)... 5 Pascagoula School Dist. 91 So.3d at Pathfinder Coach Division of Superior Coach Corp. v. Cottrell 62 So.2d 383 (Miss. 1953)... 4 PHE, Inc. v. State 877 So.2d 1244 (Miss. 2004)....4 Quitman County v. State of Mississippi 910 So.2d 1032 (Miss. 2005)... 5 State v. Hinds County Bd. of Supervisors 635 So.2d 839 (Miss. 1994)... 6 State v. Roderick 704 So.2d 49 (Miss. 1997)... 5 State ex rei. Knox v. Board of Supervisors of Grenada County 105 So. 541 (Miss. 1925)... 8 Tally v. Board ofsup'rs of Smith County 307 So.2d 553 (Miss. 1975)... 7 Tullos v. Town of Magee 179 So. 557 (Miss. 1938) Walters v. Blackledge 71 So.2d 433 (Miss. 1954)... 7 Williams v. Mayor and City Council of Baltimore 289 U.S. 36 (1933)... 6 vi

8 STATUTES Miss. Code Ann Miss. Code Ann (3)(f)... 9,10 Miss. Code Ann , et seq Miss. Code Ann OTHER AUTHORITIES Art. 3, Section 14 of the Mississippi Constitution... 6 Art. 4 Section 66 of the Mississippi Constitution... 8 Art 4 Section 71 of the Mississippi Constitution Art. 4 Section 88 of the Mississippi Constitution... 9 Art 4 Section 90(P) of the Mississippi Constitution... 2 Art. 4 Section 89 of the Mississippi Constitution...10,11 15 C,J.S C,J.S. 283, p C,J.S. 342, p C,J.S. Taxation WL at *1 (Miss. A.G. Feb. 24, 1986) vii

9 STATEMENT OF THE CASE Tunica County (hereinafter "County") sued the Town of Tunica (hereinafter "Town") and the Tunica County School District (hereinafter "School District"). The County filed for declaratory judgment and preliminary injunction asking the court to hold that local private legislation, H.B. 1002, was unconstitutional. H.B imposes 3.2% fees on the monthly revenues of gaming vessels docking in the County. The fees are then distributed to the County, who keeps a percentage of the fees, but must disperse 10% percentage to the Town and 14% of the revenues be expended on "educational purposes" in Tunica County. Since the Constitutionality of a statute was raised by a litigant, the Mississippi Attorney General's Office filed a Motion to Intervene on April 6, 2015 which was granted. (R ). After a hearing on June 18,2015, the circuit court issued its Opinion on July 4,2015. (R ). The court denied the County's preliminary injunction relief. The court granted the Town's request for preliminary relief. On.Tu1y 28, 2015, the court denied the relief sought by the County. (R ). On December 3, 2015, the court granted the Town's Motion for Summary Judgment. The County timely appealed. SUMMARY OF THE ARGUMENT A plaintiff, in this case the County, must prove beyond a reasonable doubt that a law in question is unconstitutional. Laws are presumed to be constitutional. The County failed to meet

10 its burden and the trial court acted properly in dismissing the County's claims and found H.B constitutional. Of course, this Court will review the case de novo. Local H.B does not violate the Mississippi Constitution due process clause nor Section 32 Construction of Enumerated rights. Political subdivisions of a state have no Fifth or Fourteenth Amendment protections against the state. The revenues of a county are subject to the control of the legislature as counties are created by the Legislature. Furthermore, no requirement exists as to uniformity or equal protection under state and federal constitutions that limit the power of the Legislature in respect to the allocation, distribution and application of public funds. H.B. 1002's requirement that the County must pay a percentage of tax revenues to the Town and for educational purposes does not create an illegal donation. Counties are created by the Legislature and are subject to legislative control. The tax revenue on gaming is not the County's but for H.B which the Legislature directs on how the money is applied. Thus the appropriations are not considered donations. H.B.1002 does not violate the procedural process as noted in Article 4, 89 of the Mississippi Constitution. Courts do not police the process of the Legislature or go behind the bill to find the process unconstitutional. Laws passed by the Legislature and signed by the Governor are presumed constitutional and the proper process followed. H.B.1002 does not violate Article 4, Section 90(p) of the Mississippi Constitution. H.B directs that 14% of the revenue collected be expanded "for educational purposes in Tunica County". This does not limit support to common schools. The County is correct that governing boards cannot bind successor boards. However local and private laws are passed by the Legislature, not the local governing board. Therefore, the County's argument fails. 2

11 House Bill 1002 is independent of, and does not conflict with Mississippi's Gaming Control Act. The two are separate and independent enactments. Furthermore, the County waived this issue when it failed to raise this issue at the trial court level and has raised this issue for the first time on appeal. Summary Judgment was appropriate on each of the constitutional arguments raised by the County at the trial court level. The County filed this action challenging the constitutionality of H.B The County had the burden of overcoming the strong presumption of validity which can only be held unconstitutional beyond a reasonable doubt. There were no disputed facts before the trial court. The only issue before the court was whether H.B was constitutional. ARGUMENT The County acts as if it has the power to specially tax the gaming boats and is entitled to the tax revenue. Such assumption is inconect. The County is receiving tax revenues by virtue of the private local legislation pursuant to House Bill In this case, the County asked the legislature to pass special legislation in order to add an additional tax on the gaming industry located in the County. The legislature passed the local private legislation and in the law directed up to maximum amount of tax and where the revenue goes. Thus, the tax revenue is not solely the County's tax revenue and the County would not receive the revenue but for the local private legislation. As such, the County's argument has no merit and the court properly dismiss the matter. I. Burden To Prove A Law Unconstitutional. As an initial matter, Tunica County faces a heavy burden in assailing the constitutionality of a statute. The burden is on the plaintiff to prove beyond a reasonable doubt that the statute in 3

12 question is unconstitutional; there is a strong presumption in favor of validity. In determining the constitutionality of a statute, the courts should proceed with the greatest possible caution, and should never declare void unless invalidity is established beyond a reasonable doubt. They should adopt a construction which will bring the act into harmony with the Constitution, whenever necessary in order to uphold its constitutionality and carry its provisions into effect. Every intendment is in favor of constitutionality, unless it's repugnancy to that document clearly appears. Presumption is in favor of its validity. The propriety, wisdom and expediency of the act is a question for the legislature and not the courts. It will be presumed that the legislature considered the effects of the statute, and that it acted with intent to comply with constitutional provisions and a desire to be fair and equitable. Mississippi State Tax Commission v. Tennessee Gas Trans. Co., 116 So.2d 550, 552 (Miss. 1959). Plaintiff must "overcome the strong presumption" that the legislature - this Court's coequal branch of government - acted within its constitutional authority in adopting the local private legislation. See Cities of Oxford, Carthage, Starkville and Tupelo v. Northeast Elec. Power Ass'n, 704 So.2d 59, 65 (Miss. 1997); James v. State, 731 So.2d 1135, 1136 (Miss. 1999). Plaintiff must demonstrate that the legislation in question is in direct conflict with "the clear language of the constitution." PHE, Inc. v. State, 877 So.2d 1244, 1247 (Miss. 2004). Recognizing proper deference to the legislative branch, the Mississippi Supreme Court has prescribed tight limits on courts considering the constitutionality of statutes. In determining whether an act of the Legislature violates the Constitution, the courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution. Nor are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to prevail the Constitution, but not the expressed words. Pathfinder Coach Division of Superior Coach Corp. v. Cottrell, 62 So.2d 383, 385 (Miss. 1953)(citation omitted). Indeed, the Supreme Court has cautioned trial courts that "[wjhen a party invokes our power of judicial review, it behooves us to recall that the challenged act has 4

13 been passed by legislators and approved by a governor sworn to uphold the selfsame constitution as we are." State v. Roderick, 704 So.2d 49,52 (Miss. 1997). The Supreme Court instructed that "A Mississippi court may strike down an act of the legislature only where it appears beyond all reasonable doubt that the statute violated the clear language of the constitution." PRE, Inc., 877 So.2d at 1247 (internal quotation omitted). "All doubts must be resolved in favor of validity of a statute, and any challenge will fail if the statute does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity." Id. (Internal quotation omitted). In fact, even where there exists a conflict between a statute and the constitution, the conflict must be "palpable before the courts of this State will declare a statute unconstitutional." Quitman County v. State of Mississippi, 910 So.2d 1032, 1036 (Miss. 2005). In the final analysis, "to state that there is doubt regarding the constitutionality of an act is to essentially declare it constitutionally valid." Moore v. Board of Supervisors of Hinds County, 658 So.2d 883, 887 (Miss. 1995). II. Issues Raised By Tunica County A. The County's First Argument Is That The Court's Review Of Summary Judgment On The Constitutionality Of Statues Is De Novo. The State does not dispute de novo review in the case sub judice. However, the constitutionality of a statute is presumed valid, Mississippi Tax Commission, 116 So.2d at 552; and the County must prove "beyond all reasonable doubt" the statute violates the Constitution. Pat~finder Coach Div. of Superior Coach Corp., 62 So.2d at 385. After a review of the record, this Court should affirm the trial court and find H.B is constitutional. 5

14 B. The Provision of Local and Private Laws H.B (2004) Does Not Violate Miss. Const. Art. 3, Sec. 14 Due Process Nor Section 32 Construction Of Enumerated Rights. Political subdivisions cannot assert Fourteenth Amendment challenges to laws enacted by their creator. As long ago recognized by the United States Supreme Court, "[aj municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoice in opposition to the will of its created." Williams v. Mayor and City Council 0/ Baltimore, 289 U.S. 36, 40 (1933). The Fifth Circuit Court of Appeals has repeatedly held that a state's political subdivisions cannot challenge the state's duly enacted laws under the Fourteenth Amendment. Donelson v. Louisiana Division 0/ Administrative Law, 522 F.3d 564, (5 th Cir. 2008); Appling County v. Municipal Electric Authority o/georgia, 621 F.2d 1301, (5 th Cir. 1980); City o/sa/ety Harbor v. Birchfield, 529 F.2d 1251, (5 th Cir. 1976). The Mississippi Supreme Court has also recognized that".political subdivisions of a state have no Fifth or Fourteenth Amendment protections against the state." State v. Hinds County Bd. 0/ Supervisors, 635 So.2d 839, 843 (Miss. 1994) (citing City o/trenton v. State o/new Jersey, 262 U.S. 182 (1923); Board o/levee Commissioners o/the Orleans Levee Board v. Huls, 852 F.2dI40, (5 th Cir. 1988». This well-established rule of law is fully applicable here. Tunica County is a county created by the State of Mississippi. Miss. Code Ann Its rights as a political subdivision are defined by, and completely subject to the will of, the State of Mississippi. Those rights do not include any Fourteenth Amendment right to litigate the validity of state laws. The Mississippi Supreme Court has previously noted that the "due process required by the Federal Constitution is the same 'due process oflaw' which is required by Section 14 of the 6

15 Constitution of the State of Mississippi. " Walters v. Blackledge, 71 So.2d 433, 444 (Miss. 1954). Tunica County admits this much. See Memorandum in Support of Preliminary Injunction, pp.6, 8. To this end, federal courts have routinely held that cities and counties lack standing to challenge the constitutionality of statutes on due process grounds, based on the proposition that: A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the federal Constitution which it may invoke in opposition to the will of its creator. Appling County v. MUnicipal Elec. Authority of Georgia, 621 F.2d 1301, 1308 (5 th Cir. 1980); see also City o.f Canton v. Nissan North America, Inc., 870 F. Supp. 2d 430 (S.D. Miss. 2012) (city has no due process claim under Fourteenth Amendment); Tally v. Board of Sup'rs of Smith County, 307 So. 2d 553,556 (Miss. 1975) (Section 14 of the Mississippi Constitution is "directed to the protection of individuals and [does 1 not apply to frustrate state agencies in their relationship with each other"). The Mississippi Supreme Court has affilmed the State's authority to control its political subdivisions. State v. Hinds Co., 635 So.2d 839, 843 (Miss. 1994). The revenues ofa county are subject to the control of the Legislature as counties are created by the Legislature. In Jackson County v. Neville, 131 Miss. 599,95 So. 626, 629 (1923), it was described that: The revenues of a county are not the property of the county in the sense in which the revenue of a private person or corporation is regarded. The revenues of a county are subj ect to the control of the Legislature, and when the Legislature directs their application to a particular purpose or to the payment of the claims of particular parties, the obligations to so pay is thereby imposed on the county. 15 C.J. 283, p. 581; Bell v. Cummins, 130 Tenn. 566, 172 S. W. 290, L. R. A. 1915D,274. See also State v. Hinds County Board o.fsupervisors, 635 So.2d 839, 843 (Miss. 1994). 7

16 In State ex rel. Knox v. Board a/supervisors a/grenada County, 105 So. 541, 547, the Mississippi Supreme Court held that, "[t]he Legislature has the right to control the counties, their property and funds, unless specifically restricted by some constitutional prohibition, regulation, and limitations." Furthennore, regarding taxes, the Mississippi Supreme Court held that there is "no requirement of unifonnity or equal protection under the Mississippi and Federal Constitutions that limit the power of the Legislature in respect to the allocation, distribution and application of public funds. 84 C.J.S. Taxation 34." Mississippi Municipal Ass'n Inc. v. State, 390 So.2d 986, 989 (Miss. 1980) (quoting Culley v. Pearl River Industrial Commission, 108 So.2d 390, 391 (Miss. 1959). C. Not A Donation In Violation Of Art. 4, Sec. 66 A county is a creation of the State and is subject to legislative control. "Since a county while a body corporate is a subdivision of the state, created for administrative and other public purposes, and owes its creation to the state, it is a rule that it is subj ect at all times to legislative control and change." "State v. Bd. Sup'rs a/grenda Co., 105 So. 541, 546 (Miss. 1925). The constitution itself provided the Legislature power to control counties. As counties are but subdivisions of the state, created by the Legislature for political and civil purposes as agencies of the state government, they are entirely subject to legislative control, except as far as restricted by the Constitution of the state. The Legislature need not submit an act relating to county affairs to the voters of the county for approval, unless required by constitutional provisions, but where it is optional with a county to be bound or not by a legislative act, it cannot assume to be bound by a part of the act, without at once being liable to the remaining provisions. State v. Grenada Co., 105 So. at 546 (quoting 15 (C.J.S. 53). 8

17 "[Wlhen the Legislation directs county funds to be applied to a particular purpose, that obligation is imposed upon the county." Grenada at 547. "These decisions and textbooks show that the Legislature has the right to control the counties, their property and funds, unless specially restricted by some constitutional prohibition, regulation, or limitation." Grenada at 547. In other words, the tax revenue on gaming is not the county's money but for the legislation by the Legislature directing how these monies would be applied. Therefore, since technically the gaming tax proceeds are not the County's then the imposition of how the proceeds shall be used/applied cannot be said to be a donation. Furthermore, the money is used for a related governmental purpose. The Mississippi Supreme Court held: In 59 c.j. Sec. 342, p. 203, the general law is stated: "A constitutional limitation, express or implied, on gifts of public money does not generally apply to a disbursement, appropriation, or other fiscal statute for a public purpose to carry out a function of the government or to discharge the obligation of the state, although only a moral or equitable obligation." Craig v. Mercy Hospital- Street Memorial, 209 Miss. 427, 45 So.2d 809, 818 (1950). Since the money is used for a related purpose, the revenue generated by HB 1002 should not be considered a donation. Hence the trial court properly granted summary judgment and this Court should affirm the trial court's ruling. D. House Bill 1002 Does Not Suspend A General Law in Violation of Article 4, Section 88 Of The Mississippi Constitution. The County argues that H.B "suspends" certain general laws and requires the County to "distribute and donate" casino tax revenue in violation of Article 4, Section 88 of the Mississippi Constitution. Namely H.B suspends Miss. Code Ann (3)(f), the 9

18 County Home Rule statute. Miss. Code Ann (3)(f) reads, "This section shall not authorize the board of supervisors of a county to... (f) grant any donation... " As discussed in the previous issue C, H.B revenue disbursement does not constitute a donation. Therefore, this issue has no merit and the trial court properly dismissed this argument. As such, this Court should affirm the trial court's dismissal. E. H.B Does Not Violate Mississippi Constitution, Article 4, 89 Issue The connty argues that H.B was not passed in acccordance with the mandates of Art. 4, 89 of the Mississippi Constitution and therefore should not be enforced. Said argument is without merit. Section 89 governs the procedure for passing local and private legislation. 89 provides: There shall be appointed in each house of the Legislature a standing committee on local and private legislation; the House committee to consist of seven represenatives, and the Senate committee of five Senators. No local or private bill shall be passed by either House nntil it shall have been referred to said committee thereof, and shall have been reported back with a recommendation in writing that it do pass, stating affirmatively the reasons therefor, and why the end to be accomplished should not be reached by a general law, or by a proceeding in court; or if the recommendation of the committee be that the bill do not pass, then it shall not pass the House to which it is so reported unless it be voted for by a majority of all members elected thereto. If a bill is passed in conformity to the requirements hereof, other than such as are prohibited in the next section, the courts shall not, because of its local, special, or private nature, refuse to enforce it. The County argues that there were no legislative findings set forth in H.B that explain why the end to be accomplished should not be reached by a general law or by a proceeding in court. The County then apparently misreads Bond v. Marion County Bd. of Supervisors, 807 So.2d 1208, 1218 (Miss. 2001), in support ofit's argument. 10

19 Bond states: This Court will not look to the journals of the legislature to determine whether the legislature complied with the provisions of 89. Haas v. Hancock County, 183 Miss. 365, 374,184 So. 812, 813 (1938). Section 89 expressly states that if a bill is passed in conformity with its requirements, "the court shall not, because of its local, special, or private nature, refuse to enforce it." This Court has recognized such, stating that if an act does not "suspend" the general law, "it was a matter for the Legislature and this Court will enforce the legislative mandate... "Kerley at 48. Bond, 807 So.2d at Notably, Bond cites supporting authority, Haas v. Hancock County, 183 Miss. 365, 184 So. 812 (1938). Haas stands for the principle that courts will not go back and police the Legislature. The Court stated: The Court there decided that it would not consider the journals, and would not undertake to review legislative proceedings, when they had been certified by the speaker of the house and the presiding officer of the senate, as having been passed in accordance with the Constitution, or to have been duly and properly passed. Haas, 184 So. at 813. The Supreme Court has often held that based of the separation of powers, while the Court interpret content of laws passed by the Legislature, the Court does not review or police the process. In Re Hooker, 87 SoJd 401,402 (Miss. 2012). The Mississippi Supreme Court held: In Lang v. Board of Supervisors, the claim was that a bill passed by the Legislature did not include the constitutionally required titled." Article 4, Section 71, requires that "[e]very bill introduced into the legislature have a title, and the title ought to indicate clearly the subject-matter or matters of the proposed legislation." This Court held that, despite the alleged constitutional defect, the sufficiency of the title of a legislative bill is a legislative, not a judicial, question. In Re Hooker, 87 SoJd at 413. Furthelmore, the county failed to affirmatively prove the procedure of the Legislature was not properly followed by the Legislature. 11

20 F. House Bill 1002 Does Not Provide Unconstitutional Support for a Common School iu Violation of Article 4, Section 90(p) of the Mississippi Constitution. The County's next argument is that House Bill 1002 provides unconstitutional support for a commons school in violation of Art. 4, Section 90(p) of the Mississippi Constitution. As with the County's prior arguments, this too fails. Art. 4, Section 90 of the Mississippi Constitution sets forth a list of twenty-one matters upon which the Legislature shall pass only general laws, including subsection (p): "providing for the management or support of any private or common school, incorporating the same, or granting such school any privileges." The term "common school" means the State's elementary and secondary education system WL 81590, at *1 (Miss. A.G. Feb. 24, 1986). House Bill 1002 does not mandate that the County pay 14% of the funds to the Tunica County School District. Rather, House Bill 1002 provides that 14% of the revenues collected. under the act are to be expended "for educational purposes in Tunica County"-12% of which is for any educational purpose, with the remaining 2% being earmarked for teacher's salary supplementation and training. This is certainly not limited to "support of common schools;" but means any educational purpose. Columbia Land Development LLC, 868 So.2d at (all doubts must be resolved in favor of [the] validity of a statute and courts should construe statutes so as to render them constitutional rather than unconstitutional). How the County expends these "educational purpose" funds is a decision left entirely up to the County. This Court reviewed local and private legislation that earmarked a percentage of casino fees for expenditure on "educational purposes" in Harrison County School District v. Long Beach School District, 700 So.2d 286, 287 (Miss. 1997). At issue was whether the phrase "educational purposes in Harrison County," as set forth in the local and private legislation 12

21 authorizing a fee on casinos, required the funds designated for "educational purposes" be spent throughout all of Harrison County or only in the Harrison County School District--which would exclude several municipal separate school districts. This Court found the phrase meant the "educational purpose" funds should be spent throughout all of Harrison County, not just the Harrison County School District--notably raising no constitutional concerns with the local and private's mandate that funds be spent for "educational purposes." This Court noted the legislative purpose behind such a requirement as follows: Id. at 290. The Legislature xealized that an increase in crime, traffic, population and education costs could follow legalized gaming to the Gulf Coast. Therefore, the Legislature passed the statutes allowing for the municipalities to tax the casinos to overcome the increase in cost. There is no genuine issue of material fact as to whether the payments under House Bill 1002 violate Art. 4, Section 90(p) of the Mississippi Constitution. House Bill 1002 only requires that 14% of the funds derived in Tunica County be spent on "educational purposes". Requiring such expenditures does not constitute unconstitutional support for common schools, and the County has failed to carry its burden of demonstrating otherwise. The trial court properly granted summary judgment on this argument, and this Court should affirm the trial court's ruling. G. House Bill 1002 Is An Act Of The Mississippi Legislature, Not The Tunica Connty Board Of Supervisors, And It Is Binding On Tunica County. The County argues that it should not have to comply with House Bill 1002 because "a governing county board of supervisors does not have the authority to bind the county beyond the terms of that board." Appellant's Brief, p.29. The County bases this flawed argument on the fact 13

22 that the Legislature does not take action on local and private bills unless specifically requested to do so by the governmental entity seeking adoption or amendment of a local and private bill. Here, House Bill 1002 was adopted in response to a 2004 resolution by the former Tunica County Board of Supervisors--which left office in and is, according to the County, therefore not enforceable against the current Tunica County Board of Supervisors. Without question, it is a well-established principle of Mississippi law that governing boards of public bodies cannot bind successor boards, particularly in matters of contracts. Each of the authorities cited by the County address circumstances where courts of this state have faced attempts by one board to bind successor boards to the terms of a contract. See Biloxi Firefighters Association v. City of Biloxi, 810 So.2d 589 (Miss. 2002) (striking down collective bargaining agreement entered into by successor board with municipal firefighters); City of Starkville v. 4- County Electric Power Ass'n, 819 So.2d 1216 (Miss. 2002) (contract entered into by power association with indefinite term held valid); Humble Oil & Refining Co. v. State, 41 So.2d 26 (Miss. 1949) (prior board could not bind successor board to lease with oil company); Tullos v. Town of Magee, 179 So. 557 (Miss. 1938) (contract to pay fixed salary of pump operator for lifetime of employee invalid and unenforceable against successor board); Edwards Hotel & City R. Co. v. Jackson, 51 So. 802 (Miss. 1910) (prior city board could not have bound successor board to agreement exempting railway company from paving certain roads). Where the County's argument breaks down, however, is that House Bill 1002 was not adopted by the Tunica County Board of Supervisors. House Bill 1002 is an act of the Mississippi Legislature. By its terms, House Bill 1002 "shall tal,e effect and be in force from and after its passage." R While predecessor boards of supervisors are limited in their 14

23 ability to bind the actions of future boards, there is no such limitation on the Mississippi Legislature. See Gully v. Williams Bros., 180 So. 400, 406 (Miss. 1938) (holding "".cities and counties are subject to legislative control, and have no actual powers which forbid legislative control of their affairs in all respects. "). As an act of the Mississippi Legislature, House Bill carries just as much weight as any other state statute. There is no exception or otherwise valid basis to excuse the Tunica County Board of Supervisors from compliance with House Bill 1002 under these circumstances. The County must comply with House Bill 1002 until the Mississippi Legislature directs otherwise. The trial court properly granted summary judgment on this argument, and this Court should affirm the trial court's ruling. H. The Provisions Of House Bill 1002 Are Independent Of And Do Not Conflict With The Mississippi Gaming Control Act. The County contends that House Bill 1002 is in "direct conflict" with Mississippi's Gaming Control Act, Miss. Code Ann l, et seq. The County contends that the Gaming Control Act provides the County with the authority to "impose a 3.2% fee" on casinos, but that unlike House Bill 1002, the County is entitled to keep all avails of the fee when the casino is in unincorporated areas of the county and a proportionate share of the avails (based on population) when the casino is in a municipality. The County contends that, as a result, House Bill 1002 impermissibly conflicts with an suspends the Gaming Control Act. The County's position is mistaken. The Gaming Control Act does not permit the County to "impose a 3.2% fee" on casinos. Rather, what the Gaming Control Act permits is a staggered, revenue-based fee of up to 0.8%, Miss. Code Ann Further, the fees authorized under the Gaming Control Act and 15

24 House Bill 1002 are not mutually exclusive--the County may impose both fees on casinos operating in Tunica County. That the fee distribution mandates under the Gaming Control Act differ from those under House Bill 1002 is of no consequence. They are two separate and independent acts of the Mississippi Legislature, and it is entirely within the Legislature's prerogative to control how the avails of each fee are distributed. See Pascagoula School Dist., 91 So.3d at 606 ("the municipalities' power to tax the casinos came from the Legislature, so it follows that the Legislature had the authority to establish the purpose of the tax and to direct where the funds would be spent.") Moreover, to the Town of Tunica's knowledge, Tunica County does not levy any fee under the Gaming Control Act, making the question of any differences between House Bill 1002 and the Gaming Control Act a non-issue. Tunica County argues that the trial court denied its request for declaratory and injunctive relief "without any findings or mention of the conflict, suspension and exemption between [House Bill] 1002 and Mississippi's Gaming Control Act." While this argument erroneously presupposes that there is "conflict, suspension and exemption" between House Bill 1002 and the Gaming Control Act (there is not), the reason there is no mention of this issue by the trial court is quite simple: This is not an issue that was raised by the County at the trial court level. To this end, as the Mississippi Court of Appeals recently stated in City of Hattiesburg v. Precision Co nsf., LLC: It is a long established rule in this state that a question not raised in the trial court will not be considered on appeal. Moreover it is not sufficient to simply mention or discuss an issue at a hearing. The rule is that a trial judge carmot be put in error on a matter which was never presented to him for decision. City of Hattiesburg v. Precision Canst., LLC, No CA COA, 2016 WL , at *4 (Miss. Ct. App. May 17, 2016); see also Pascagoula School Dist., 91 So.3d at 603 (constitutional questions not raised in the trial court will not be reviewed on appeal). 16

25 Because the County failed to raise this issue at the trial court level, it has waived its right to raise the issue before this Court. Moreover, even were the issue to be considered, the County's position is without merit. There is no genuine issue of material fact on the question of whether the provisions of House Bill 1002 "are in direct conflict with" or otherwise suspends the Mississippi Gaming Control Act. There is no conflict or suspension of the Mississippi Gaming Control Act by House Bill The two are separate and independent legislative enactments. The County is free to impose fees under either or both, yet it elects to only impose the fee under House Bill The County cannot create conflict in House Bill 1002 by relying on authority to levy a separate fee granted under the Mississippi Gaming Control Act which it voluntarily elected not to exercise. To the extent the issue is even properly before this Court, summary judgment is appropriate in favor of the Town of Tunica. I. The Trial Court Did Not Err Iu Granting Summary Judgment and Dismissing The County's First Amended Complaint With Prejudice The County argues that the trial comt "committed error in determining that summary judgment was appropriate in favor of the [Town of Tunica] on the issue of constitutionality." The County argues that the trial court may only grant summary judgment "if appropriate," presumably constitutional arguments raised by the County. The County further argues that it was "reversible error" to grant summary judgment without a hearing. The County's position is without merit. As set forth above, summary judgment was appropriate on each of the constitutional arguments raised by the County at the trial court level. The County filed this action challenging the constitutionality of House Bill As such, the County had the bmden of overcoming the 17

26 "strong presumption of validity" that cloaks House Bill 1002, which it could only carry by affirmatively establishing unconstitutionality beyond a reasonable doubt. Columbia Land Development LLC, 868 So.2d at There were no disputed questions of fact before the trial court; the only issue was whether House Bill 1002 was constitutional. The County failed to carry its burden of proof on this issue. In fact, the County never responded to the Town's Motion for Summary Judgment. The County is mistaken in arguing that the absence of a "summary judgment hearing" in these proceedings is reversible error. The arguments the County offered to support its request for declaratory and permanent injunctive relief were the same arguments the County offered to support its request for preliminary injunctive relief. To that end, the trial court held a comprehensive injunction hearing, at which counsel for the County was provided the opportunity to explain the bases upon which the County was challenging the constitutionality of House Bill R Town of Tunica Mayor Chuck Cariker and Tunica County Supervisor James Durm also testified at the injunction hearing. Taking all of this into consideration, the trial court denied the relief sought by the County, finding "the County has failed to meet its burden and therefore the presumption of the constitutionality of Chapter No 920, Private Laws of 2004, House Bill 1002 prevails." R Further, the County has pointed to no issues of fact (material or othewise) that would have been the subject of testimony or debate at a summary judgment hearing--or any other issue which the Court did not previously hear testimony on at the injunction hearing. To be clear, there were no genuine issues of material fact present in this matter at the time the trial court granted summary judgment. R The sole question was the constitutionality of House 18

27 Bill As the County concedes, questions of interpretation of statutes and constitutionality are pure issues of law. Appellant's Brief, p. 34 (citing State v. Board of Levee Commissioners, 932 So.2d 12, (Miss. 2006». In other words, "an oral summary judgment hearing would have centered around legal arguments since all of the fact-centered issues were immaterial or undisputed." Adams v. Cinemark USA, Inc., 831 So.2d 1156, 1165 (Miss. 2002) (finding failure to hold sunrmary judgment hearing not reversible error); see also Black v. City of Tupelo, 853 So.2d 1221 (Miss. 2003) (failure to hold motion to dismiss hearing harmless error); Miller v. Myers, 38 So.3d 648 (Miss. ct. App. 2010) (holding that no implicit or explicit right to summary judgment hearing under Rule 56, though other rules may require a hearing; failure to hold a summary judgment hearing harmless error where no issues of material fact exist). The County's argument that the trial court erred in granting summary judgment is misplaced. The trial court properly granted summary judgment in this matter, and this Court should affirm the trial court's ruling. J. Whether The Trial Court Did Not Err In Awarding Attorney's Fees And Interest To The Town Of Tunica. The issue is not applicable to the State as no attorney's fees or interest were awarded to the State or the Mississippi Attorney General's Office. CONCLUSION The Court correctly held that H.B was constitutional. There were no disputes of fact. The County failed to meet its burden that H.B was constitutional. Therefore, this Court should affirm the trial court's finding that H.B is constitutional. 19

28 THIS the 29th day of August, Respectfully submitted, THE STATE OF MISSISSIPPI JIM HOOD, ATTORNEY GENERAL s/lee D. Thames, Jr. LEE D. THAMES, JR. 20

29 CERTIFICATE OF SERVICE I, the undersigned, do hereby certify that I have this day filed the above and foregoing document with the Court's MEC system, which will automatically send notice to the following interested persons: Ellis Turnage, Esq. Turnage Law Office Post Office Box 216 Cleveland, MS Attorney for Plaintiff Regina May, Esq. John Richard May, Jr., Esq. The May Law Firm, PLLC Post Office Box Jackson, MS Attorney for Tunica County School District J. Chadwick Mask, Esq. Carroll Warren & Parker, PLLC Post Office Box 1005 Jackson, MS Attorney for Tunica County, Mississippi This, the 29th day of August, sl Lee D. Thames, Ir. LEE D. THAMES, JR. 21