State and Local Legal Blog

Mississippi Tort Claims Act — What about discretionary undertakings?

September 17, 2012
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In the case of Pratt v. Gulfport-Biloxi Regional Airport Authority (GBRAA), No. 2009-CT-01202-SCT (September 6, 2012) the Mississippi Supreme Court addressed a consideration of whether discretionary or ministerial acts compromised the ability of the Mississippi Tort Claims Act [MTCA] is applicable in actions against a governmental entity.  The MTCA provides an exclusive remedy for claims against governmental entities (See Mississippi Code Annotated, Section 11-46-7 (Rev. 2002)  It is undisputed that the GBRAA is a political subdivision subject to the MTCA.

Under the MTCA, governmental entities are not liable for claims arising from discretionary functions.  There is a two-part public function test which was set forth in Miss. Transp. Comm’n v. Montgomery, 80  So. 3d 789, 795 (Miss. 2012):  did the activity in question (on which the claim for damages is based) involved an element of choice or judgment?  If so, did the choice or judgment involve social, economic or political-policy considerations?

To answer the first question, the Court must consider whether the activity was discretionary or ministerial.  A duty or activity is discretionary if it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.  A ministerial function is one positively imposed by law and required to be performed at a specific time and place, removing the officer’s or entity’s choice or judgment.

Protected discretionary functions can be made at an operational or planning level and include day-to-day decisions made by governmental actors.  While the United State Supreme court has said “if the routine or frequent nature of a decision were sufficient to remove an otherwise discretionary act from the scope of the exception, then countless policy-based decisions by regulators exercising day-to-day supervisory authority would be actionable.”  The Mississippi Court, following this logic, said that the fact that day-to-day decisions may be routine or frequent does not remove them from protection as discretionary functions attendant to the operation of the public entity.

When the Court finds that the activity was discretionary, the second step of the public-policy function test requires that the Court decide whether the choice or judgment involved social, economic or policy considerations.  “State tort standards cannot adequately control those government decisions in which, to be effective, the decision maker must look to considerations of public policy and not merely to established professional standards or to general standards of reasonableness.”  Dancy v. E. Miss. State Hosp., 944 So. 2d 10, 17 (Miss. 2006).

Since the cause of action was based on actions occurring as the GBRAA was making improvements to its facility, the authority had taken economic factors into consideration, and the use of airstairs for temporary access to the tarmac, adding anti-slip tape to the stairs, and other decisions made during construction were for the convenience and safety of the airport patrons and are daily decisions that fall under the overall operation of the airport, thus satisfying the second part of the public-policy functions test.  GBRAA is entitled to discretionary-function immunity against this claim under the MTCA.

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Britches in the Breech

September 13, 2012
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You probably think that I am obsessed with people who can’t pull their trousers up, but in addition to the cities in Mississippi which have waged war on the public display of underwear (and other unmentionables), this issue was recently the subject of an editorial piece in the American Bar Association Journal.  Brian Sullivan did a nice job of discussing the “saggy pants” issue and placing it in some sort of national prospective.  He says that numerous public entities have adopted different types of legislative measures which propose to ban the wearing of pants that cause one’s underwear to be visible.

Is it a “Southern thing”?  Brian notes several sates which have either passed bans on this issue or are in the process of doing so.  He names Alabama, Florida, Indiana and Tennessee.  He notes that Albany, Georgia, has accidentally stumbled upon a cash cow, collecting over $4,000 in fines during the 9 month life of it’s ordinance.  Students at high schools in South Carolina are having their pants zip-tied by the superintendent before they are sent home.

The ACLU says “choice of clothing is a personal one and one in which the government has no place.”  While I tend to agree, I also tend to have pretty sophisticated taste in dress and sure don’t appreciate looking at others’ underwear or breech.  It does strike me, however, that choice of a lot of things is a personal one yet the government has found it’s place in those choices — consumption of alcohol, for example.  Public drunkenness and saggy bottoms are equally unappealing.  If government can marshal its assets to pick you up when you stagger, I figure it can pick you up when your pants fall off.

So what do you think:  should we criminalize “backside exposure”?


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Another Zoning Pitfall: George C. McKee v. City of Starkville

September 10, 2012
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Reading a recent Mississippi Supreme Court case with a basis in “my town” and the plaintiff, George McKee, a fellow member of the bar and someone I’ve known for a long time, I thought I should make a statement about it.  The fact situation is mangled pretty badly…not by the Court in its rendition but by the players.  It all arises out of a rezoning application pursued by McKee, but denied by the City.  McKee sought to appeal through he appropriate procedure, a “Bill of Exceptions” but the Mayor didn’t/wouldn’t sign it.  Then the City filed its own Bill but didn’t do it correctly.  So here is the Supreme Court, with a case before it that it truly shouldn’t technically have jurisdiction of…..

The portion of the opinion that should be of interest to all public entities, however, is the issue of notice.  I am going to quote directly from the Court’s opinion:

¶13. McKee also argues that the Board violated his right to due process when it failed to notify him of the meeting where it denied his rezoning application. However, the City contends that based on the plain language of Mississippi Code Annotated 17-1-17 (Supp.
2011), McKee was not entitled to notice of the Board’s meeting. Section 17-1-17 provides, in pertinent part:  Zoning regulations, restrictions and boundaries may, from time to time, be amended, supplemented, changed, modified or repealed upon at least fifteen
(15) days’ notice of a hearing on such amendment, supplement, change, modification or repeal, said notice to be given in an official paper or a paper of general circulation in such municipality or county specifying a time and place for said hearing. The governing authorities or any municipal agency or commission, which by ordinance has been theretofore so empowered, may provide in such notice that the same shall be held before the city engineer or before an advisory committee of citizens as hereinafter provided and if the
hearing is held before the said engineer or advisory committee it shall not be necessary for the governing body to hold such hearing but may act upon the recommendation of the city engineer or advisory committee. Provided, however, that any party aggrieved with the recommendation of the city engineer or advisory committee shall be entitled to a public hearing before the governing body of the city, with due notice thereof after publication for the time and as provided in this section. (Emphasis added). The City contends that because the Planning Commission recommended approval of McKee’s rezoning application, he was not an aggrieved party and was not entitled to a public hearing before the Board under section 17-1-17. While the plain language of the statute supports the City’s position, it produces a result that is inconsistent with our existing case law. Our supreme court has stated that in proceedings before city zoning authorities, due process requires notice and “the opportunity to be heard at all critical stages of the process.” Carpenter v. City of Petal, 699 So. 2d 928, 931 (¶9) (Miss. 1997) (quoting Thrash v. Mayor & Comm’rs of Jackson, 498 So. 2d 801, 808 (Miss. 1986)).

¶14. The City’s interpretation of section 17-1-17 would only be consistent with the due process requirements announced in Carpenter and Thrash if the Board was bound by the Planning Commission’s recommendation regarding rezoning applications. However, the
Board is not bound by the Planning Commission’s recommendations, and it may deny a request even where, as in this case, the Planning Commission unanimously recommends approval (provided, of course, that its decision is supported by substantial evidence).
Therefore, even where a party has not been aggrieved by the recommendation of the city engineer or advisory committee, he is still entitled to notice of the hearing before the governing body of the city where the rezoning request is considered. Because McKee was not given notice of the Board’s meeting where his rezoning request was denied, he was denied due process. Consequently, we reverse the circuit court’s judgment and remand this case to the Board for a properly noticed hearing on McKee’s rezoning request.

It makes sense, doesn’t it?


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Search and Seizure – Law Enforcement Latitude

September 4, 2012
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A detainee (in this case a man held following a traffic stop due to an outstanding warrant) may be strip-searched upon entry into a jail’s general population, regardless of the seriousness of the offense resulting in that incarceration.  Arguments regarding the invasiveness or potential abuse of these searches were rejected by the Supreme Court of the US as “not implicated on the facts of this case” and therefore “unnecessary” to the Court’s consideration.  For more information see Florence v. Board of Chosen Freeholders of County of Burlington, 132 S.Ct. 1510 (2012).


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