BRIEF OF APPELLEE TOWN OF TUNICA, MISSISSIPPI

E-Filed Document Aug 29 2016 16:19:43 2015-CA-01183 Pages: 44 IN THE SUPREME COURT OF MISSISSIPPI CASE NO. 2015-CA-01183 TUNICA COUNTY, MISSISSIPPI APPELLANT VS. TOWN OF TUNICA, MISSISSIPPI; TUNICA COUNTY SCHOOL DISTRICT; AND THE STATE OF MISSISSIPPI APPELLEES BRIEF OF APPELLEE TOWN OF TUNICA, MISSISSIPPI ORAL ARGUMENT NOT REQUESTED ON APPEAL FROM THE CIRCUIT COURT OF TUNICA COUNTY, MISSISSIPPI J. Chadwick Mask (MSB #10621) Christopher H. Coleman (MSB #101899) Clifton M. Decker (MSB #102740) CARROLL WARREN & PARKER PLLC 188 East Capitol Street, Suite 1200 Post Office Box 1005 Jackson, Mississippi 39215-1005 Telephone: (601) 592-1010 Facsimile: (601) 592-6060

IN THE SUPREME COURT OF MISSISSIPPI CASE NO. 2015-CA-01183 TUNICA COUNTY, MISSISSIPPI APPELLANT VS. TOWN OF TUNICA, MISSISSIPPI; TUNICA COUNTY SCHOOL DISTRICT; AND THE STATE OF MISSISSIPPI APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record, in accordance with Rules 28(a)(1) 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 of Carroll Warren & Parker PLLC, counsel for the Town of Tunica, Mississippi; 3. The State of Mississippi, Appellee; 4. Hon. Jim Hood, Lee D. Thames, Jr., and the Mississippi Attorney General s Office, counsel for the State of Mississippi; 5. Tunica County, Mississippi, Appellant; 6. Ellis Turnage and the Turnage Law Office, counsel for Tunica County, Mississippi; 7. Tunica County School District, Appellee; and 8. John May, Jr., Regina May, and the May Law Firm, counsel for Tunica County School District. Dated: August 29, 2016. /s/ J. Chadwick Mask J. Chadwick Mask Attorneys of Record for Town of Tunica i

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT REGARDING ORAL ARGUMENT..vii I. INTRODUCTION...1 II. STATEMENT OF THE CASE...1 III. STANDARD OF REVIEW...5 IV. ARGUMENT...7 V. CONCLUSION...33 CERTIFICATE OF SERVICE...34 CERTIFICATE OF SERVICE ON CIRCUIT COURT JUDGE...35 ii

TABLE OF AUTHORITIES CASES Adams v. Cinemark USA, Inc., 831 So.2d 1156 (Miss. 2002)...29 Appling County v. Municipal Elec. Authority of Georgia, 621 F.2d 1301 (5th Cir. 1980)...9 Baptiste v. Jitney Jungle Stores of America, Inc., 651 So.2d 1063 (Miss. 1995)...5 Biloxi Firefighters Association v. City of Biloxi, 810 So.2d 589 (Miss. 2002)...24 Black v. City of Tupelo, 853 So.2d 1221 (Miss. 2003)...29 Bond v. Marion County Board of Supervisors, 807 So.2d 1208 (Miss. 2001)...19, 20 Brandon v. City of Hattiesburg, 493 So. 2d 324 (Miss. 1986)...17, 18, 19 Cities of Oxford, Carthage, Louisville, Starkville and Tupelo v. Northeast Mississippi Elec. Power Ass n, 704 So.2d 59 (Miss. 1997)...9 City of Canton v. Nissan North America, Inc., 870 F. Supp.2d 430 (S.D. Miss. 2012)...9 City of Hattiesburg v. Precision Const., LLC, No. 2014-CA-01671-COA, 2016 WL 2860742 (Miss. Ct. App. May 17, 2016)...26, 27 City of Jackson v. Williamson, 740 So.2d 818 (Miss. 1999)...32 City of Starkville v. 4-County Electric Power Ass n, 819 So.2d 1216 (Miss. 2002)...24 Corning v. Mississippi Ins. Guar. Ass n, 947 So. 2d 944 (Miss. 2007)...6 Columbia Land Development LLC v. Secretary of State, 868 So.2d 1006 (Miss. 2004)...6, 7, 20, 22, 23, 28 Craig v. Mercy Hospital-Street Memorial, 45 So.2d 809 (Miss. 1950)...12 Edwards Hotel & City R. Co. v. Jackson, 51 So. 802 (Miss. 1910)...24, 25 Estate of St. Martin v. Hixson, 145 So.3d 1124 (Miss. 2014)...5, 6 Farrish Gravel Co., Inc. v. Mississippi State Highway Com n, 458 So.2d 1066 (Miss. 1984)...13 Feemster v. City of Tupelo, 83 So. 804 (Miss. 1920)...17 Foster v. Ross, 804 So.2d 1018 (Miss. 2002)...31, 32 iii

Freelance Entertainment, LLC v. Sanders, 280 F. Supp.2d 533 (N.D. Miss. 2003)...9 Golding v. Salter, 107 So.2d 348 (Miss. 1958)...12 Gully v. Williams Bros., 180 So. 400 (Miss. 1938)...25 Haas v. Hancock County, 184 So. 812 (Miss. 1938)...19 Harrison County School District v. Long Beach School District, 7002 So.2d 286 (Miss. 1997)...10, 11, 14, 15, 16, 21, 23 Hill v. Thompson, 564 So.2d 1 (Miss. 1989)...12 Humble Oil & Refining Co. v. State, 41 So.2d 26 (Miss. 1949)...24 In re Extension of Boundaries of City of Laurel, 17 So. 3d 529 (Miss. 2009)...17 In re Validation of $7,800,000 Combined Utility System Revenue Bond, Gautier Utility Dist., 465 So.2d 1003 (Miss. 1985)...8, 20 Johnson v. Sysco Food Services, 86 So.3d 242 (Miss. 2012)...6 Miller v. Myers, 38 So.3d 648 (Miss. Ct. App. 2010)...29 Mississippi High School Activities Ass n, Inc. v. Farris, 501 So.2d 393 (Miss. 1987)...8 Moore v. Bd. of Supervisors of Hinds County, 658 So.2d 883 (Miss. 1995)...6 Nichols v. Patterson, 678 So.2d 673 (Miss. 1996)...12 Oxford Asset Partners, LLC v. City of Oxford, 970 So.2d 116 (Miss. 2007)...18, 21 Pascagoula School Dist. v. Tucker, 91 So.3d 598 (Miss. 2012)...11, 15, 26, 27 Pro-Choice Mississippi v. Fordice, 716 So.2d 645 (Miss. 1998)...10 Resolution Trust Corp. v. Scott, 887 F. Supp. 937 (S.D. Miss. 1995)...8 Spann v. Shuqualak Lumber Co., Inc., 990 So.2d 186 (Miss. 2008)...6 State v. Bd. of Levee Comm rs, 932 So.2d 12 (Miss. 2006)...6, 29 State ex rel. Knox v. Board of Supervisors of Grenada County, 105 So. 541 (Miss. 1925)...12 State v. Hinds Cnty. Bd. of Sup'rs, 635 So.2d 839 (Miss. 1994)...12 Tally v. Board of Sup rs of Smith County, 307 So.2d 553 (Miss. 1975)...9 iv

Tullos v. Town of Magee, 179 So. 557 (Miss. 1938)...24 Tupelo Redevelopment Agency v. Gray Corp., Inc., 972 So.2d 495 (Miss. 2007)...29, 31 Walters v. Blackledge, 71 So.2d 433 (Miss. 1954)...8 Yazoo City v. Lightcap, 33 So. 949 (Miss. 1903)...17 STATUTES Miss. Code Ann. 11-55-1...31 Miss. Code Ann. 19-3-40(3)(f)...16, 17 Miss. Code Ann. 37-57-1...17, 21 Miss. Code Ann. 75-17-7...32 Miss. Code Ann. 75-76-1...16, 25 Miss. Code Ann. 75-76-195...21, 26 Miss. Code Ann. 75-76-197...20, 21 OTHER AUTHORITIES Miss. R. Civ. P. 56...5, 29 Art. 3, Section 14 of the Mississippi Constitution...8, 9, 11 Art. 3, Section 32 of the Mississippi Constitution...10, 11 Art. 4, Section 66 of the Mississippi Constitution...11, 12, 16 Art. 4, Section 87 of the Mississippi Constitution...18, 20, 21, 22 Art. 4, Section 88 of the Mississippi Constitution...16, 17, 18 Art. 4, Section 89 of the Mississippi Constitution...18, 19, 22 Art. 4, Section 90(p) of the Mississippi Constitution...18, 22 Art. 4, Section 96 of the Mississippi Constitution...11, 13, 16 Art. 8, Section 206 of the Mississippi Constitution...17, 21 v

1986 WL 81590 (Miss. A.G. Feb. 24, 1986)...22 2013 WL 7020571 (Miss. A.G. December 13, 2013)...13 2014 WL 3572777 (Miss. A.G. June 26, 2014)...13 vi

STATEMENT REGARDING ORAL ARGUMENT Pursuant to Mississippi Rule of Appellate Procedure 34, Appellee Town of Tunica respectfully submits that oral argument is not necessary in this appeal. The primary question before this Court is a basic and well-settled issue of constitutional law. Mississippi law grants acts of the Mississippi Legislature a strong presumption of constitutionality one which can only be overcome by demonstrating affirmatively and beyond a reasonable doubt that the act in question is unconstitutional. Tunica County failed to carry this burden at the trial court level, and it has likewise failed to carry this burden on appeal. Accordingly, while the Town of Tunica welcomes the opportunity to argue this matter before the Court, such is not necessary in this appeal as the facts are not in dispute and the dispositive issue of the constitutionality of acts of the Mississippi Legislature has been repeatedly and authoritatively decided. vii

The Town of Tunica, Mississippi ( Town ) submits its Appellee s Brief as follows: I. INTRODUCTION This appeal arises from the Tunica County Circuit Court s granting of summary judgment in favor of the Town of Tunica ( Town ) on claims for declaratory and injunctive relief filed by Tunica County, Mississippi ( County ) challenging the constitutionality of Chapter No. 920, Local and Private Laws of 2004 ( House Bill 1002 ) which authorizes the imposition of a 3.2% fee on gaming vessels that dock in Tunica County and governs the distribution of such funds. As with all acts of the Mississippi Legislature, House Bill 1002 is cloaked with a presumption of constitutionality and the County must overcome this presumption affirmatively and beyond a reasonable doubt. The County failed to carry this burden at the trial court level, and it likewise fails to carry this burden on appeal. The trial court s grant of summary judgment was proper and should be affirmed. II. STATEMENT OF THE CASE House Bill 1002 was approved by the Mississippi Legislature in 2004. It is the most recent amendment to local and private legislation authorizing the imposition of fees on the monthly revenues of gaming vessels docking in Tunica County and mandating how the revenues generated by the fees are to be distributed throughout the County. R. 291, 299-300. 1 Among other things, House Bill 1002 requires that 10% of the gaming revenues collected under the 3.2% fee be distributed to the Town. R. 291, 299-300. Tunica County has imposed the 3.2% fee authorized under House Bill 1002 and its predecessors since 1994 when the Mississippi Legislature first authorized the fee in Tunica 1 For purposes of the Town s Appellee s Brief in this matter, all citations to the clerk s papers as originally filed will be to R., all citations to the transcript volume filed in this matter will be to Tr., all citations to the First Supplemental Clerk s Papers filed in this matter will be to Supp. R., and all citations to the Second Supplemental Clerk s Papers filed in this matter will be to 2 nd Supp. R.. 1

County. R. 292. Tunica County has been remitting payments to the Town for its pro-rata share of the fees collected since 1995 when the Mississippi Legislature first required a portion of the fees to be paid to the Town. R. 292. The payments remitted by Tunica County to the Town under House Bill 1002 are the single largest source of revenue for the Town, accounting for approximately 80% of the Town s general fund revenues. 2 R. 292, 920. The County filed its Complaint in this matter on October 21, 2014, against the Town of Tunica and the Tunica County School District seeking an order: (a) declaring that House Bill 1002 is unconstitutional; and (b) enjoining House Bill 1002 s continued enforcement. R. 14-40. Essentially, what the County wanted was to continue to levy the gaming tax under House Bill 1002, but keep all the funds collected for its own use contrary to the mandates of House Bill 1002. With the filing of its Complaint, the County did just that: ceasing all payments to the Town under House Bill 1002, notwithstanding that no court had granted the County the relief it sought. On February 3, 2015, the Town filed an Application for Preliminary Injunction with the Tunica County Circuit Court, seeking an order enjoining the County from disregarding the revenue distribution mandates of House Bill 1002 and requiring the County to come into immediate compliance with the law. R. 291-304. At the time of the filing of the Town s Application for Preliminary Injunction, the County was unilaterally withholding four months of gaming revenue payments due to the Town under House Bill 1002 (which historically average approximately $150,000 per month). R. 293. 2 For Fiscal Year 2014 (the last audited fiscal year available at the time of the filing of this action), the Town s 10% share of gaming revenues under House Bill 1002 amounted to $2,124,742, and the Town s next largest source of revenue was sales tax receipts, which amounted to $561,784. R. 292. The Town did not levy ad valorem taxes at the time this action was filed by the County, but has subsequently implemented an ad valorem tax levy on property owners within its municipal limits. 2

On April 6, 2015, the Mississippi Attorney General s Office filed its Motion to Intervene in the underlying matter and defend the constitutionality of House Bill 1002, which the trial court granted. R. 840-43. On June 18, 2015, the trial court conducted a comprehensive hearing on the pending requests for injunctive relief. R. 897-98. During the course of this hearing, counsel for all represented parties were permitted the opportunity to present oral argument to the Court on the various issues raised by the parties, as well as to call any necessary witnesses in support of their respective positions which witnesses included County Supervisor James Dunn and Town Mayor Chuck Cariker. Significantly, the trial court asked counsel for the County numerous times during the course of the June 18, 2016 hearing why it is Tunica County s position that [House Bill 1002] is unconstitutional? Tr. 3, 9, 11, 13. The answer given by the County s counsel was ultimately that House Bill 1002 impermissibly required the County to donate its funds to the Town. Tr. 13-14, 19-20. On July 4, 2015, the Circuit Court issued its Opinion, finding that the County 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. 921. The Court found that [House Bill 1002], and all its predecessors contain a clear and unambiguous legislative mandate as to how the fees accumulated by the enforcement of [House Bill 1002] are to be disbursed and must be immediately followed. R. 921. Thereafter, by Order entered July 28, 2015, the Circuit Court denied the relief sought by the County and granted the relief sought by the Town. R. 964. The Court likewise ordered the County to come into immediate compliance with House Bill 1002, including tendering to the Town the ten months worth of gaming revenue payments (approximately $1,104,203.50) the County was unilaterally withholding. R. 969. 3

On July 23, 2015, the Town filed its Motion for Summary Judgment as to all claims for declaratory and injunctive relief raised by the County. R. 925-37. The Town likewise filed an itemization of material facts not genuinely disputed, which set forth the following undisputed facts relevant to the Town s Motion for Summary Judgment: 1. Tunica County has elected to impose the 3.2% fee authorized by House Bill 1002. 2. Tunica County complied with House Bill 1002 and its predecessors from 1994 through September 2014. 3. Tunica County ceased payments to the Town for its 10% share of revenues collected under House Bill 1002 beginning in October 2014. 4. No state agency has authorized Tunica County to cease payments to the Town under House Bill 1002. 5. No court has granted Tunica County an injunction permitting the County to disregard any provision of House Bill 1002. 6. The Mississippi Legislature has denied the County s request to modify House Bill 1002 to decrease the Town s percentage share from 10% to 5%. 7. House Bill 1002 was approved with the consent of nearly 100% of the members of both houses of the Mississippi Legislature, with no votes against the measure and only 2 members of the House absent and 1 member of the Senate absent at the time House Bill 1002 was approved. 8. The Town has experienced increased demands on its water and sewer infrastructure, as well as its police department and fire department as a result of the legalization of gaming in Tunica County. 9. Approximately 80% of the Town s annual general fund revenues are derived from its percentage of the avails of the fee authorized by House Bill 1002. 10. The Town has been forced to make significant cuts in its municipal services, including police, fire, and public works services, due to the County s failure to make payments to the Town under House Bill 1002. R. 960-61. The County never responded to the Town s Motion for Summary Judgment. Rather, the County filed its Notice of Appeal from the trial court s July 28, 2015 Order. 4

Subsequent to the Court s July 28, 2015 Order, the County continued to refuse to comply with either the Order or House Bill 1002. Therefore, on August 13, 2013, the Town was forced to file an Emergency Motion to Enforce Court Order and to Hold Tunica County in Contempt. R. 992-1051. At the time of filing the Town s Emergency Motion, the County was unilaterally and undisputedly withholding $1,598,803.19 in gaming fees due to the Town in direct conflict with the trial Court s July 4, 2015 Opinion and July 28, 2015 Order. R. 1016-17. Notably, not only had the trial court ordered the County to comply with House Bill 1002, but the Mississippi State Auditor s Office had likewise admonished the County to follow the law established by House Bill 1002. R. 1020. The trial court heard arguments relative to the Town s Emergency Motion on September 22, 2015, following which the Emergency Motion was taken under advisement and never ruled upon. 2 nd Supp. R. 18-50. On December 3, 2015, the trial court entered its Order Granting Town of Tunica, Mississippi s Motion for Summary Judgment. 2 nd Supp. R. 8-9. Thereafter, on December 18, 2015, the County filed a subsequent Notice of Appeal to this Court from the trial court s granting of the Town s Motion for Summary Judgment and this appeal has ensued. III. STANDARD OF REVIEW This Court employs a de novo standard of review in analyzing a lower court s grant of summary judgment. Baptiste v. Jitney Jungle Stores of America, Inc., 651 So. 2d 1063, 1065 (Miss. 1995). Summary judgment is appropriate and shall be rendered 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. Miss. R. Civ. P. 56; see also Estate of St. Martin v. Hixson, 145 So. 3d 1124, 1127 (Miss. 2014). Summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, 5

and on which that party will bear the burden of proof at trial. Id. Courts do not try issues on summary judgment motions, but only determine whether there are issues to be tried. Corning v. Mississippi Ins. Guar. Ass n, 947 So. 2d 944, 946 (Miss. 2007). Where a court establishes that the plaintiff could prove no facts to support a particular claim, the motion for summary judgment should be granted. Spann v. Shuqualak Lumber Co., Inc., 990 So. 2d 186, 189 (Miss. 2008). Here, summary judgment was granted in favor of the Town of Tunica upholding the constitutionality of House Bill 1002. To that end, this Court likewise employs a de novo standard of review when addressing a statute s constitutionality. Johnson v. Sysco Food Services, 86 So. 3d 242, 243-44 (Miss. 2012). The standard for determining whether a statute is constitutional is wellestablished. Legislative acts are cloaked with a presumption of constitutionality, and unconstitutionality must appear beyond a reasonable doubt. Columbia Land Development LLC v. Secretary of State, 868 So. 2d 1006, 1016-17 (Miss. 2004) (citing Estate of Smiley, 530 So. 2d 18, 21-22 (Miss. 1988)). A statute s validity is presumed: We adhere to the rule that one who assails a legislative enactment must overcome the strong presumption of validity and such assailant must prove his conclusions affirmatively, and clearly establish it beyond a reasonable doubt. All doubts must be resolved in favor of [the] validity of a statute. If possible, a court should construe statutes so as to render them constitutional rather than unconstitutional if the statute under attack does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity. Id. (citing Mauldin v. Branch, 866 So. 2d 429 (Miss. 2003)). In considering the constitutionality of an act of the Legislature, 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. State v. Bd. of Levee Comm rs, 932 So. 2d 12, 19 (Miss. 2006). To state that there is doubt regarding the constitutionality of an act is to essentially declare it constitutionally valid. Moore v. Bd. of Supervisors of Hinds County, 658 So. 2d 883, 887 (Miss. 1995). 6

IV. ARGUMENT The trial court upheld House Bill 1002 as constitutional. Tunica County contends this was in error, arguing that House Bill 1002 is unconstitutional for a litany of reasons including that House Bill 1002 constitutes a violation of the County s due process rights, mandates an unconstitutional donation, improperly suspends a general law, provides improper support to a common school, authorizes an illegal payment, and otherwise should be suspended because of a reduction in gaming revenues throughout the County all of which were arguments presented to and rejected by the trial court. House Bill 1002 is cloaked with a strong presumption of validity, overcoming which requires Tunica County to affirmatively establish unconstitutionality beyond a reasonable doubt. Columbia Land Development LLC, 868 So. 2d at 1016-17. Any doubts as to the constitutionality of House Bill 1002 must be resolved in favor of upholding the statute. Id. Tunica County failed to overcome House Bill 1002 s strong presumption of validity at the trial court level, and it likewise fails to do so on appeal. The trial court s grant of summary judgment upholding the constitutionality of House Bill 1002 was proper and should be affirmed by this Court. A. THE CONSTITUTIONALITY OF STATUTES IS REVIEWED DE NOVO. The County s first legal argument is that this Court reviews a trial court s granting of summary judgment on the constitutionality of statutes de novo. This is not in dispute. It is the wellsettled standard of review for summary judgment and constitutional issues, just as it is well-settled that the burden of proving unconstitutionality affirmatively and beyond a reasonable doubt rests with the party challenging an act of the Legislature a burden which the County cannot carry with respect to House Bill 1002. Columbia Land Development LLC, 868 So. 2d at 1016-17. 7

B. HOUSE BILL 1002 DOES NOT VIOLATE ARTICLE 3, SECTIONS 14 AND 32 OF THE MISSISSIPPI CONSTITUTION. The County contends that House Bill 1002 constitutes a deprivation of its property without due process of law under Article 3, Sections 14 and 32 of the Mississippi Constitution. This position is without merit. The County has no constitutionally-protected right to the gaming fees collected under House Bill 1002. Its only entitlement to these fees is derived from the statute it seeks to attack a statute which the County itself requested the Legislature to adopt. Article 3, Section 14 of the Mississippi Constitution provides No person shall be deprived of life, liberty, or property except by due process of law. To assert a due process claim, the party asserting the claim must be asserting a depravation of a protected property interest. Resolution Trust Corp. v. Scott, 887 F. Supp. 937, 942 (S.D. Miss. 1995). There must be a denial of a right previously recognized and protected by the state in order for due process to be invoked. Mississippi High School Activities Ass n, Inc. v. Farris, 501 So. 2d 393, 396 (Miss. 1987). The United States Supreme Court has defined the boundaries of constitutionally-protected property rights as follows: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Id. Put in other terms, due process guards each person s every substantial entitlement created and made legitimate and protected from interference by the positive law of the state. In re Validation of $7,800,000 Combined Utility System Revenue Bond, Gautier Utility Dist., 465 So. 2d 1003, 1018 (Miss. 1985). This Court has previously noted that the due process required by the Federal Constitution is the same due process of law which is required by Section 14 of the Constitution of the State of Mississippi. Walters v. Blackledge, 71 So. 2d 433, 444 (Miss. 1954). To this end, Federal 8

courts have routinely held that cities and counties lack standing to challenge the constitutionality of statutes on due process grounds, because: [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 (5th Cir. 1980); see also City of 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] not apply to frustrate state agencies in their relationship with each other ). In Cities of Oxford, Carthage, Louisville, Starkville and Tupelo v. Northeast Mississippi Elec. Power Ass n, 704 So. 2d 59 (Miss. 1997), this Court rejected a challenge by certain municipalities alleging that amendments to the Public Utilities Act were unconstitutional because the amendments deprived the municipalities of their right to eminent domain without due process of law. Id. at 67. In rejecting this argument, this Court held the municipalities have no due process rights against the Legislature and that the municipalities have no right of eminent domain. Their power of eminent domain if any is derived by grant of statute. Id. This reasoning has equal application to the County s due process claim. Tunica County is a creature of the State. It only has those rights granted to it by the Legislature. See, e.g., Freelance Entertainment, LLC v. Sanders, 280 F. Supp. 2d 533, 544 (N.D. Miss. 2003) (holding board of supervisors only have power to adopt ordinances consistent with powers granted to them by the Constitution or state statute, and need legislative authority to assert power of anything or anyone other than roads, ferries, and bridges). Outside of House Bill 1002, the County has no right to impose a 3.2% fee on the gross revenue of casinos in Tunica County. 9

Further, House Bill 1002 does not require the County to impose the fee; rather, it authorizes imposition of the fee and mandates how revenues received from the fee are to be distributed, should the County elect to impose the fee. Here, the County elected to impose the fee under House Bill 1002, and it does so subject to the obligations imposed under House Bill 1002 by the Legislature. The County lacks any due process rights regarding the fees collected under House Bill 1002. The County further submits that House Bill 1002 violates Article 3, Section 32 of the Mississippi Constitution, which provides: The enumeration of rights in this constitution shall not be construed to deny and impair others retained by, and inherent in, the people. This provision of Mississippi s Constitution mirrors the Ninth Amendment to the United States Constitution and has been interpreted to protect individual rights such as the right to privacy and certain State rights such as the State s police power. See Pro-Choice Mississippi v. Fordice, 716 So. 2d 645 (Miss. 1998). The County s argument is flawed, however, because there is no right retained by or inherent in the County to impose a 3.2% fee on casinos. The County may only impose such a fee because the Legislature specifically authorized it to do so in House Bill 1002, and it does so subject to the obligations imposed by the Legislature. In Harrison County School District v. Long Beach School District, 7002 So. 2d 286 (Miss. 1997), this Court reviewed local and private legislation similar to House Bill 1002. There, the Legislature passed several bills allowing Biloxi and Gulfport to impose a 3.2% fee on casinos within these cities municipal limits, and mandating that a certain percentage of the fee be utilized for educational purposes in Harrison County. Id. at 287. After the funds were distributed to the Harrison County School District only, the Long Beach School District brought suit, claiming that it was entitled to some of the funds. Id. at 287-88. The trial judge found that the clear and unambiguous language of the statute required that the funds generated from the casino tax be 10

distributed throughout the entirety of Harrison County for educational purposes a finding which this Court affirmed. Id. at 288, 290. Regarding Harrison County, this Court recently stated: In Harrison County, 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. Pascagoula School Dist. v. Tucker, 91 So. 3d 598, 606 (Miss. 2012) (emphasis added). Just as the power to tax the casinos in Harrison County came from the Legislature[,] so too does Tunica County s power to tax the casinos in Tunica County come from the Legislature. Therefore, as with the distribution mandates in Harrison County, it follows that the Legislature had the authority to establish the purpose of the tax and to direct where the funds would be spent. There is no genuine issue of material fact as to whether the payments under House Bill 1002 constitute a deprivation of the County s property without due process of law under Article 3, Sections 14 and 32 of the Mississippi Constitution. The payments do not deprive the County of any due process rights, and the County has failed to carry its burden of proving otherwise. The trial court properly granted summary judgment on these arguments, and this Court should affirm the trial court s ruling. C. THE ADMINISTRATION, IMPLEMENTATION AND ENFORCEMENT OF HOUSE BILL 1002 DOES NOT VIOLATE ARTICLE 4, SECTIONS 66 OR 96 OF THE MISSISSIPPI CONSTITUTION. The County argues the administration, implementation and enforcement of House Bill 1002 constitutes a donation in violation of Article 4, Section 66 of the Mississippi Constitution and an unauthorized payment in violation of Article 4, Section 96 of the Mississippi Constitution. This was the County s primary argument in support of the declaratory and injunctive relief sought at the trial court level, and was an argument the trial court specifically rejected. R. 919-22, 964-70. There is neither a donation, nor an unauthorized payment under the circumstances in this case. 11

Article 4, Section 66 of the Mississippi Constitution provides: No law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature, nor by any vote for a sectarian purpose or use. This Court has defined the term donation as implying absence of consideration, the transfer of money or other things of value from the owner to another without any consideration. Craig v. Mercy Hospital-Street Memorial, 45 So. 2d 809 (Miss. 1950). This language has been previously interpreted as prohibiting actions such as leasing 16 th Section land for less than fair market value and paying employees a 53 rd check or bonus. See, e.g., Nichols v. Patterson, 678 So. 2d 673 (Miss. 1996); Hill v. Thompson, 564 So. 2d 1 (Miss. 1989); Golding v. Salter, 107 So. 2d 348 (Miss. 1958). The language of Article 4, Section 66 has never been applied to prohibit the Legislature from mandating how revenues collected from special fees imposed by statute are to be divided amongst governmental entities. This Court has held that a state may control its political subdivisions and that: [t]he 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 subject to the control of the Legislature, and when the Legislature directs their application to a particular purpose or the payment of the claims of particular parties, the obligation to so pay is thereby imposed on the county. State v. Hinds Cnty. Bd. of Sup'rs, 635 So. 2d 839, 843 (Miss. 1994) (citing Jackson County v. Neville, 95 So. 626, 629 (Miss. 1923)); see also State ex rel. Knox v. Board of Supervisors of Grenada County, 105 So. 541 (Miss. 1925) (Legislature may control the counties, their property and funds, unless specifically restricted by some constitutional prohibition, regulation, or limitation). 12

Further, Art. 4, Section 96 of the Mississippi Constitution provides: The Legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections. Section 96 has no application to this case. Section 96 is concerned with extra payments to employees and contractors after services have been rendered or a contract has been made. This Court and the Mississippi Attorney General s Office have consistently interpreted Section 96 in this light, prohibiting bonuses, retroactive raises, and extra compensation to complete contractedfor work. See, e.g., Farrish Gravel Co., Inc. v. Mississippi State Highway Com n, 458 So. 2d 1066, 1069-70 (Miss. 1984) (retroactive change to contract impermissible); 2014 WL 3572777, at *2 (Miss. A.G. June 26, 2014) (Section 96 prohibits bonuses); 2013 WL 7020571 (Miss. A.G. December 13, 2013) (Section 96 prohibits extra compensation in excess of approved salary). The payments to the Town under House Bill 1002 do not constitute a donation in violation of Section 66 or an unauthorized payment in violation of Section 96. House Bill 1002 mandates that 10% of the fees collected pursuant House Bill 1002 be paid to the Town. Procedurally, the avails of the fee are collected by the State Tax Commission and paid directly to the County to be expended and distributed consistent with House Bill 1002. The County acts as a pass through courier between the State Tax Commission and the Town regarding the Town s pro rata share of the avails of the fee, but this does not change that 10% of the fees are statutorily-mandated as belonging to the Town. Put in other terms, the fact the Town s share of the monthly avails of the gaming fee passes through the hands of the County does not somehow convert the entire avails of the fee into property of the County 10% of it always belonged to the Town. This is not a donation or an unauthorized payment. 13

As discussed above, this Court construed similar local and private legislation in Harrison County, where the Legislature authorized the imposition of a 3.2% fee on casinos in Biloxi and Gulfport, and mandated that a percentage of the fees collected in those cities be expended for educational purposes in Harrison County[.] 700 So. 2d at 287. Following imposition of the fee, the State Tax Commission interpreted the educational purposes provision of the local and private law as requiring the cities to distribute the educational purpose payments solely to the Harrison County School District ( HCSD ), rather than all school districts within Harrison County which would include municipal school districts for Long Beach and Pass Christian that were separate from the HCSD, had no gaming within their municipal boundaries, and otherwise received no part of the gaming fees. Long Beach sued seeking a declaration that the percentage of the casino fee designated for educational purposes in Harrison County had to be distributed throughout all school districts in Harrison County, rather than just to the HCSD. The trial court agreed with Long Beach and this Court affirmed, finding: The trial court held that the intent of the Legislature was to benefit any municipality that contained a casino over and above the rest of the county. The municipalities with legalized gambling incur increased costs due to an influx of schoolchildren. The same could be said for the county but to a lesser extent. The greatest benefit should be handed to those who incur the greatest responsibility. That is the case with the municipalities here. The Legislature realized 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. *** The final argument presented by the HCSD is that the Mississippi Legislature has never passed a bill benefiting municipalities that do not serve as docks for gambling vessels. HCSD also argues that the trial court erred by straying from the intent of the Legislature, as evidenced by the statutes and improvising on behalf of the Legislature. Long Beach points to new roads and highways, new university buildings and many other improvements across the state as evidence of the benefits 14

Id. at 290. of legalized gambling. Long Beach contends that the argument of the HCSD is completely false because of the statewide benefits. At the same time, Long Beach contends that all of the municipalities of Harrison County share the burden of legalized gambling, and, therefore, should share the benefits. Although there are no casinos located in Long Beach or Pass Christian, there is no doubt that both municipalities have been greatly affected by the introduction of legalized gambling to the Mississippi Gulf Coast. Certainly, the effect is greater in the cities of Biloxi and Gulfport, and consequently the benefit under the new statutes is also greater. In Harrison County, when discussing whether gaming fees received by Biloxi and Gulfport that were designated for educational purposes in Harrison County should be shared with the municipal school districts of cities that otherwise had no right to receive a portion of the gaming fees, this Court found there was a legislative purpose behind the revenue distribution mandates under the statutes: help local governments overcome the increase in crime, traffic, population and education costs that follow the legalization of gaming in a community. Id. at 290. This Court did not find that requiring Biloxi and Gulfport to make payments to the school districts constituted a donation or an unauthorized payment, but that the percentage share (i.e., the benefit ) each entity receives under the statute is tailored to offset the corresponding impact on that entity because of the legalization of gaming. Id. This Court found it was within the Legislature s authority to establish the purpose of the tax and to direct where the funds would be spent. Pascagoula School Dist., 91 So. 3d at 606 (discussing holding in Harrison County) (emphasis added). The same is true of House Bill 1002. Town Mayor Chuck Cariker testified during the June 18, 2015 injunction hearing regarding the pressures and increased demands for services that the Town experienced following the legalization of gaming in Tunica County. Tr. 140-43. Mayor Cariker testified as to the impacts on the Town s police department, fire department, and public works department, and to the significant amounts of money spent by the Town to keep pace with the increased demands on its infrastructure and needs for its services. Id. As in Harrison County, 15

the Legislature tailored the Town s benefit under House Bill 1002 to offset its corresponding impact because of the legalization of gaming. There is no donation or unauthorized payment under such circumstances. Even if the County could demonstrate that House Bill 1002 mandates a donation (which it cannot as there is no donation under these circumstances), this is still insufficient to constitute a violation of Art. 4, Section 66 of the Mississippi Constitution. Section 66 provides no law granting a donation shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature. As the voting record on House Bill 1002 demonstrates, the Act was approved with the concurrence of 100% of the members of each branch of the Legislature. R. 935-37. Therefore, whether the payments under House Bill 1002 constitute donations (they do not) is of no consequence. There is no genuine issue of material fact as to whether the Town s payments under House Bill 1002 constitute donation in violation of Art. 4, Section 66 of the Mississippi Constitution or an unauthorized payment in violation of Art. 4, Section 96 of the Mississippi Constitution. The payments do not constitute donations or unauthorized payments. The County failed to carry its burden of proving otherwise. The trial court properly granted summary judgment on these arguments, 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 House Bill 1002 suspends certain general laws and requires it to distribute and donate its local government fees 3 in violation of Article 4, Section 88 of the Mississippi Constitution. At the trial court, the County argued that House Bill 1002 suspended 3 The term local government fees is never used in House Bill 1002. It is a term employed under Mississippi Code Ann. 75-76-195, which authorizes cities and counties to impose a staggered fee on casinos of up to 0.8% of their gross monthly revenues. 16

Miss. Code Ann. 19-3-40(3)(f), also known as the County Home Rule statute, Miss. Code Ann. 37-57-1, which provides the manner in which counties are to levy and collect taxes for school districts, and Article 8, Section 206 of the Mississippi Constitution, which provides for the establishment of a state common-school fund. On appeal, the County argues that only the County Home Rule Statute is impermissibly suspended by House Bill 1002 in violation of Section 88. The County s arguments are wholly without merit, were rejected by the trial court, and should be rejected by this Court. provides: Art. 4, Section 88 of the Mississippi Constitution governs the content of general laws and The legislature shall pass general laws, under which local and private interests shall be provided for and protected, and under which cities and towns may be chartered and their charters amended, and under which corporations may be created, organized, and their acts of incorporation altered; and all such laws shall be subject to repeal or amendment. Section 88 is not concerned with the suspension of general laws and is not offended by House Bill 1002. Cases interpreting Section 88 have been in the context of amendments to municipal charters and creation of corporations and special districts, such as utility districts subjects which have no application to this case. See Brandon v. City of Hattiesburg, 493 So. 2d 324, 326 (Miss. 1986) (holding Section 88 provides for the chartering of cities and towns and the formation for corporations and without dispute can have no application here ); see also In re Extension of Boundaries of City of Laurel, 17 So. 3d 529 (Miss. 2009); Feemster v. City of Tupelo, 83 So. 804 (Miss. 1920); Yazoo City v. Lightcap, 33 So. 949 (Miss. 1903). Notably, the County cites to no authorities interpreting Section 88 or standing for the proposition that Section 88 is 17

violated by House Bill 1002; rather, it cites to authorities interpreting other constitutional provisions, such as Sections 87 and 90 (both are addressed infra). 4 Ultimately, the County s argument that Section 88 is offended by suspension of the laws prohibiting a donation is premised on the flawed theory that (a) Section 88 is offended by the suspension of general laws (it is not); (b) House Bill 1002 suspends a general law (it does not); and (c) the distributions authorized under House Bill 1002 are donations (they are not). The County s reliance on Section 88 is misplaced. There is no genuine issue of material fact as to whether the House Bill 1002 violates Section 88 it does not. Section 88 has no application to the facts of this case 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. E. HOUSE BILL 1002 DOES NOT SUSPEND A GENERAL LAW IN VIOLATION OF ARTICLE 4, SECTION 89 OF THE MISSISSIPPI CONSTITUTION. Again, the County argues that House Bill 1002 suspends a general law in violation of Art. 4, Section 89 of the Mississippi Constitution. The County argues that House Bill 1002 was not adopted consistent with the requirements under Section 89 for the adoption of local and private legislation, and therefore, cannot be enforced to require [the County] to distribute and donate its local government fees remitted by casino licensees. Both arguments are without merit. As with the County s Section 88 argument above, Section 89 is not concerned with the suspension of general laws. Section 89 governs the procedure for enacting local and private legislation. Brandon, 493 So. 2d at 326-327. Specifically, Section 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 representatives, and the Senate committee of five Senators. No local or private bill shall be passed by either House until it shall have been 4 This Court is under no obligation to consider an issue where the party raising the issue fails to cite authority. Oxford Asset Partners, LLC v. City of Oxford, 970 So. 2d 116, 120, n. 2 (Miss. 2007). 18

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 alleges there are no legislative findings set forth in House Bill 1002 as to why the end to be accomplished should not be reached by a general law or by a court proceeding. The County argues that the absence of such legislative findings from House Bill 1002 demonstrates that it was not passed in conformance to and in compliance with Section 89. The plain language of Section 89 does not require the legislative findings be set forth on the face of the local and private legislation, but rather in a written report from the standing committee on local and private legislation. While the County argues that the Mississippi Legislature s journals reveal that the Legislature did not comply with Section 89 in adopting House Bill 1002, it cites to nothing in the record (or otherwise) to support this proposition. This Court has held that it will not look to the journals of the legislature to see whether the legislature [has] complied with the provisions of section 89 of the Constitution in the passage of a local, private or special law. Haas v. Hancock County, 184 So. 812, 813 (Miss. 1938); see also Bond v. Marion County Board of Supervisors, 807 So. 2d 1208, 1218 (Miss. 2001) (holding this Court will not look to the journals of the legislature to determine whether the legislature complied with the provisions of 89 ). However, were this Court inclined to proceed otherwise and look to the journals of the Legislature, the record demonstrates that the Legislature complied with all provisions of Section 89 in adopting House Bill 1002. R. 935-37. Nevertheless, where, as here, the County challenges whether the adoption of House Bill 1002 was in accordance with 19

Section 89, such a challenge must be proven affirmatively beyond a reasonable doubt a burden which Tunica County fails to carry. Columbia Land Development LLC, 868 So. 2d at 1016-17. In arguing that House Bill 1002 suspends a general law, it appears the County is perhaps relying upon Art. 4, Section 87 of the Mississippi Constitution which prohibits the suspension of general laws, and provides: No special or local law shall be enacted for the benefit of individuals or corporations, in cases which are or can be provided for by general law, or where the relief sought can be given by any court of this State; nor shall the operation of any general law be suspended by the Legislature for the benefit of any individual or private corporation or association, and in all cases where a general law can be made applicable, and would be advantageous, no special law shall be enacted. Section 87 has been held repeatedly to apply only where there has been a local or private law enacted for the benefit of private individuals or corporations. Bond v. Marion County Bd. of Sup rs, 807 So. 2d 1208, 1217 (Miss. 2001) (emphasis added). Section 87 is wholly inapplicable to entities public in nature.... Id. (emphasis added). Section 87 and the notion of suspending a general law has no application to House Bill 1002, which was enacted for the benefit of public corporations, namely the Town of Tunica and Tunica County. Notwithstanding that Section 87 is wholly inapplicable to public corporations, the County argues that House Bill 1002 impermissibly suspends general law and offends the Mississippi Constitution citing the In re Validation test as supportive of its position. The County contends that provisions of the general law and the Mississippi Constitution that prohibit donations, and Mississippi Code Ann. 75-76-197, which governs the distribution of casino fees collected under general law, are impermissible suspended by House Bill 1002. While the argument is entirely academic given Section 87 s inapplicability under these circumstances, the County is nonetheless misplaced. 20