State and Local Legal Blog

Senator Edward Kennedy Succumbs to Brain Cancer

August 31, 2009
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I must step outside the strict confines of a “state and local legal blog” to comment on the death of Senator Edward M. (Teddy) Kennedy, the last of the Kennedy brothers — Joseph, Jr., John, Bobby and Teddy.  Indeed, following on the heels of Eunice Kennedy Shriver’s death on August 11, Teddy’s death leaves only one of the former president’s sibblings standing.  That is Jean Kennedy Smith, the child who was closest to Teddy (the youngest) in age.  She is 81. She was not present at the funeral service of Eunice, prefering to stay at Teddy’s bedside.

Whatever you think of the Kennedy clan, this generation of sibblings — sons and daughters of Joe and Rose Kennedy — Edward Kennedy has made a significant contribution to legislative change in the last almost 50 years.  In fact, friends and foes in the United States Senate — where he has very few foes — suggest that he is a master of the legislative process, reminescent of LBJ.

The Kennedy clan has made an enormous impact on American politics, history and culture.   Teddy’s contribution has concentrated on issues of civil rights, health care, immigration, LGBT and women’s rights, as well as Americans with disabilities, and education  for America’s youth.  One reason was that he was the bearer of the nation’s “liberal torch”; another was that he was one of the best horse traders in the Senate.  He understood compromise.  He treated his colleagues fairly, and they loved him, even as some hated his politics.

When you think of Teddy, you must also recall Mary Jo Kopechne, Chappaquiddick, and the accusation of his nephew (Jean Kennedy Smith’s son) of rape after he and his nephew had gone bar-hopping.  You must also recall the tragedy of addiction that enveloped his first wife.  And, actually, his own addiction which he admitted only after his nephew’s acquittal.

I am reminded that when we consider our virtue, we look to our best intentions and our greatest noble act as evidence of that virtue.  Others, however, when considering our virtue, look no farther than our last worst act.

While I choose not to overlook the legacy of last worst acts that Teddy Kennedy may have left in his nearly 80 years of life, I do choose to acknowledge his contribution to my America.


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The Incorporation Hearing Process

August 28, 2009
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The incorporation hearing process is statutory also.  While generally the law gives Chancellors great descretion in all matters unless their actions can be shown to be arbitrary and capricious, the particular language of the incorporation statute governing the hearing process emphasize the Chancellor’s discretion.  He should hear “all evidence offered in support of said petition, together with all objections, if any, that may be presented touching or bearing upon the question of whether or not the proposed incorporation is reasonable and is required by the public convenience and necessity.”

One of the frustrating things about the incorporation hearing process is that it usually doesn’t happen on the date set by the Chancellor, unless there are no objectors.  Normally, if objectors appear, they will request a continuance in order to marshall proof to convince the Chancellor that the proposal is unreasonable.  Since it is the Chancellor’s duty to hear both evidence supporting the reasonableness and public convenience and necessity of the proposed incorporation, as well as evidence proving the unreasonableness of the proposal, he will normally grant one or more continuances, if sought reasonably and in good faith.

After taking proof, the Chancellor is called upon to determine whether the evidence supports a finding that the proposed incorporation is reasonable and required by the public convenience and necessity.  If he so finds, the statute requires that he enter a decree which should contain (among other things):

  • a declaration that the municipal corporation is created
  • provide an accurate description of the territory included
  • classify the municipality according to law (city or town)
  • list the interim municipal officers

 Remember the descretion?  The statute gives a Chancellor power to grant the petition for incorporation in whole or in part, and to modify the territory to be incorporated.  Likewise, if there is no substantial proof of the reasonableness of the incorporation, or public convenience and necessity requiring the incorporation, he may deny the incorporation.

Once the decree is entered, the speed of things picks up.  The order is final within ten (10) days from the date of the decree, unless an appeal is taken within that time period.  (Normally, a Chancellor’s decree is final unless an appeal is taken within 30 days of the decree.)

Chancellor Singletary couldn’t make everyone happy; thus his decree was appealed by several parties to the proceeding.  However, there was one group of folks that Chancellor Singletary did satisfy — the Mississippi Supreme Court.  The Court affirmed the decree issued by Chancellor Singletary.

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Publication Requirements for Proposed Incorporation

August 27, 2009
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The next step in the quest for incorporation is for the Chancellor to set a date for the hearing of the merits of the petition.  After securing the date, it is the responsibility of the petitioners (those filing the petition for incorporation) to give notice to all persons “interested in, affected by, or having objections to the proposed incorporation”.  This is done by publishing in a newspaper which is published in the proposed territory or has a general circulation in the territory of the proposed incorporation.  The published notice should advise the date and time of the hearing and advise that the petitioners will present their proof on this date and that all persons having an objection may appear and enter their objections.  Publication must appear in an appropriate newspaper once each week for three consecutive weeks.  The petitioners are also required to post a copy of such notice in three or more public places in such territory.

Other requirements of adequate notice are as follows:

  • publication and posting must occur at least 30 days prior to the date of the hearing
  • the notice shall contain a full description of the territory proposed to be incorporated

Caveat:  If any portion of the proposed territory is located within three miles of the boundaries of an existing municipality, that municipality must be made a party defendant to the petition and served with process as required by law. Service must occur at least 30 days prior to the hearing.

Publication requirements are found in 21-1-15 of the Mississippi Code. 

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Legal Requirements for Incorporation Petition

August 26, 2009
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In Mississippi, the requirements for incorporation are found in Title 21, Chapter 1 of the Mississippi Code.  The first step in an incorporation is for the community residents to determine that they do, indeed, want to incorporate into a city or town (the distinction between city or town is based on population).  Assuming a community has a desire to incorporate, the community must petition the Chancery Court in the county in which the community is located.  If it is located across county lines, the petition must be filed one of the affected counties.  The statute (21-1-13) is specific as to what must be included in the petition for incorporation.  It requires a metes and bounds description of the area proposed for annexation (requiring a survey) and a map of the area, both of which would reflect the proposed municipal boundaries.  Additionally, the petition requires the submission of a proposed name, the precise number of residents within the proposed boundaries, the assessed valuation of the property included in the proposed boundaries (from the most recent assessments), the aims of the of the petitioners in seeking said incorporation, the municipal and public services which said municipal corporation proposes to render and the reasons why the public convenience and necessity would be served by the creation of such municipal corporation. The petition is also required to list appointed officers who would serve prior to an election.

The petition is required to be signed by 2/3 of the registered voters in the proposed area, and one of the petitioners must swear to the veracity of the facts and allegations contained in the  petition.





















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“Reasonableness” Test for Incorporation

August 25, 2009
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The principal duty of a Chancery Court Judge in an incorporation proceeding is to make a “reasonableness” determination.  The Chancellor must decide whether the proposed incorporation is reasonable and required by public convenience and necessity.  In the case of Byram, the Chancellor had to determine whether the area of proposed incorporation had characteristics of a village.  He found that the 20 square mile area that he defined (less than the incorporators requested) did have these characteristics.  He found so based on the following facts, although these facts do not limit his decision:

  • The Byram Incorporators have the support of the community
  • The Byram Incorporators have been taking steps at transitional government for several years
  • The Byram Incorporators have fought off Jackson’s attempt to annex the area for the last 20 years
  • The majority of Byram residents and businesses are concentrated in the 20 square mile area that the Chancellor found reasonable to be subject to incorporation
  • There are sufficient sources of funding and revenue in the 20 square mile area to adequately support incorporation.

In determining that the above facts supported the “reasonableness” of the incorporation, the Chancellor also noted that the following facts did not detract or stand in the way of Byram’s incorporation:

  • Jackson has spent substantial sums of money in attempting to annex the Byram area
  • Jackson’s contest of the incorporation is not a “fact” that makes the incorporation “unreasonable”
  • Jackson’s ability to expand and increase its tax base will be affected by Byram’s incorporation
  • Jackson currently provides utility services and limited fire protection to a portion of the area to be incorporated, but that, in itself, does not detract from Byram’s separate identity
  • No natural geographic boundaries separate Jackson from Byram
  • While Byram’s incorporation will hinder Jackson’s future growth, Jackson has no unfettered right to annexation.

In determining that the limited annexation of territory in favor of Jackson was also reasonable, he noted that residents in the 4 square mile area benefitted from their proximity to Jackson but did not pay their fair share of taxes for the benefits received.

The Chancellor also found that the incorporation of Byram and the allowed 4 square mile annexation of area that he approved in favor of Jackson would ot dilute the voting strength of any protected minority group.

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City of Jackson v. Byram Incorporators

August 24, 2009
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Byram, a community immediately south of Jackson on Interstate 55, sought to incorporate 44 square miles of land south of the existing southern corporate limits of Jackson.  After Byram filed its petition (and noticed adjacent incorporated areas, as required by law), Jackson sought to annex 22.59 square miles of the 44 square miles sought by Byram.

Chancellor Singletary couldn’t make everyone happy, of course.  He determined that it would be reasonable for Byram to incorporate 20 square miles of land.  He found that Jackson had a “limited” need for expansion and allowed Jackson to expand into and annex an area of land approximately four square miles in size.  He also denied both parties much of the land they sought to incorporate, determining that it should remain in Hinds County and not be annexed by either.

Did I say he couldn’t make everyone happy?  Jackson appealed the grant of the annexation and the incorporation, contending that it needs the 20 square miles that it requested; citizens who reside in the four square mile area given to Jackson for annexation appealed.

Get the picture?  The entire case can be found on the Mississippi Supreme Court’s website.  It is No. 2007-An-00946 and it was issued April 2, 2009.

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Byram Incorporates!

August 21, 2009
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Byram, just to the south of Jackson, is Mississippi’s newest city.  Whether it should have incorporated, or been annexed by Jackson, is still a matter of debate, although the incorporation is a feat accompli.

In April of 2009, the case that led the way to Byram’s incorporation came down from the Mississippi Supreme Court.  This case, City of Jackson v. Byram Incorporators, No. 2007-AN-00946, is worthy of examination and we will spend next week doing so.

Essential to incorporate a city is a petition to incorporate, which is to be filed in Chancery Court.  This petition requires several matters to be included.  There are also various prerequisites that must be met before a petition should be drawn.  It’s a great case study and each of us can learn a little about incorporation through the lense of this case.  August 24 – 28 will be Incorporation Week!

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Hot Pursuit is a hot topic!

August 20, 2009
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Hot pursuit is not just for movies.  It sometimes happens in real life, in real time.  In 2006, an individual was injured as a result of hot pursuit of an Alabama State Trooper.  The trooper was racing to catch and apprehend a subject with resulting injury to another driver.  Interestingly, this hot pursuit took the Trooper from Alabama into Monroe County, Mississippi, where the accident and injury occurred.  The injured driver filed suit. The Circuit Judge ganted a summary judgment in favor of the State and the Trooper (after originally denying same and then granting it on rehearing).  The injured party appealed to the Mississippi Supreme Court.

When considering whether an officer engaged in hot pursuit is behaving negligently, our Supreme Court says that questions to be considered include whether the pursuit was too lengthy, the seriousness of the offense of the individual being pursued, and alternative means of apprehension, among other things. 

In this particular case, the Supreme Court found that reasonable minds could differ on whether the actions of the Trooper were negligent based on the following facts:

  •  the pursuit covered 6 1/2 miles in 6 1/2 minutes
  • the average speed was 60 in a 45 mph zone
  • the road was 2 lane, a narrow road bed, with curves and hills and some deteriorating road conditions
  • the area was extremely rural

Because of this, the Supreme Court reversed the summary judgment rendered by the Circuit Judge and remanded the case back for reconsideration by a jury.

The moral of the story, to share with law enforcement, is that many issues impact whether or not hot pursuit is justified and when engaging in hot pursuit, a consideration of these issues is appropriate.

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Spot Zoning — a pit to avoid!

August 19, 2009
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Spot zoning is defined as a small island of relatively intense use surounded by a sea of less intense use.  And cities are not supposed to engage in spot zoning.

This was reiterated recently in the Mississippi Supreme Court case of  Modak-Truran v. Johnson, No. 2008-CA-00104.  This case arose over action taken by the Jackson City Council to amend the Jackson zoning ordinance to include a Class B use (beds and breakfast with restaurant) in R-2 areas (one and two family dwellings).  Prior to this amendment, the only other special uses allowed were schools, churches and group homes.

To make matters worse, the amendment allowed beds and breakfast with restaurants to operate the restaurants “as a matter of right” — the practical result of which was that operators did not have to apply for a use permit.

The bed and breakfast in question in Jackson was the Fairview Inn,  which is located on Fairview Street and backs up (or sides up) to commercial property on the corner of North State and Fairview Street.  Besides the commercial property on North State, the remainder of the immediate neighborhood is essential single family dewllings.  Amazingly, the two families who lived immediately across the street from the Fairview Inn were owned by 3 lawyers.

And so the litigation began. 

While the Circuit Court of Hinds County approved the city council’s adoption of the amendments to the city’s zoning plan, the Supreme Court reversed, finding that it was spot zoning.  The Court stated that a determination of the existence of spot zoning is determined by the particular circumstances of each case, but that it is generally invalid wen it is primarily for the private interest of the owner of the property affected and not related to the general plan for the community as a whole.  The Supreme Court found that the amendment circumvented the stringent procedural requirements for rezoning.  The court further found that the city had not provided evidence of change in the neighborhood sufficient to justify the rezoning of such a small track of land.

Particularly in small communities, friends will seek out newly elected aldermen for favors.  Be careful of the spot zoning pit.  It is easier to step into than to step out of!

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Do you have an age discrimination claim?

August 18, 2009
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The United States Supreme Court recently clarified proof for an age discrimination claim in the case of Gross v. FBL Financial Servs., Inc., The decision explains the elements of proof needed to establish employment discrimination under the Age Discrimination in Employment Act (ADEA).

The issue on appeal was a jury instruction. The trial court instructed the jury that it must find for Gross if he proved by a preponderance of the evidence that age was a motivating factor in his employer’s. The instruction defined “motivating factor” as a fact that played a part or a role in the employer’s decision. The district court also instructed the jury that it must find for the employer if the jury determined that the employer would have demoted Gross regardless of his age.

The Supreme Court was asked to determine if the burden of persuasion in an age discrimination trial ever shifts to the employer. The Court confirmed that the burden never shifts, and the Court also found that the definition of “motivating factor” in an age discrimination case is not the same as it is in a Title VII discrimination case. A plaintiff in an age case must establish by a preponderance of the evidence that age was a motivating factor and that but for the employer’s determination or consideration of age, the adverse employment decision would not have been made. In other words, an age discrimination plaintiff must show that his or her age had a determinative influence on the outcome of the employer’s decision. It is not enough to find that the employer might have discussed or even considered an employee’s age in making an employment decision, but instead the employee must show that the employer’s decision was motivated by age, and without the age consideration, the decision would not have been made.  Unlike the Title VII standard of proof, the “motivating factor” evidentiary standard is restrictive and raises the bar for the proof needed and as a result serves to limit the number of age discrimination cases that will go to the jury.

A number of congressmen are aggravated at this ruling and there is some talk about legislating an approach more similar to the Title VII standards, but no action has taken place yet.

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