E-Filed Document Aug 30 2016 11:38:19 2015-CA-01177-SCT Pages: 15 IN THE Mississippi Supreme Court NO. 2015-CA-1177 HENRY W. kinney, Appellant VERSUS SOUTHERN MISSISSIPPI PLANNING AND DEVELOPMENT DISTRICT, INC. AND MISSISSIPPI ASSOCIATION OF PLANNING AND DEVELOPMENT DISTRICTS Appellees PETITION FOR REHEARING MICHAEL ADELMAN, ESQUIRE MS State Bar No. 1153 ADELMAN & STEEN, L.L.P. 224 Second Avenue Post Office Box 368 Hattiesburg, MS 39403-0368 601/544-8291; 601/544-1421 (FAX) COUNSEL FOR HENRY W. KINNEY
IN THE SUPREME COURT OF MISSISSIPPI CASE NO.: 2015-CA-1177 HENRY W. KINNEY APPELLANT VS. SOUTHERN MISSISSIPPI PLANNING AND DEVELOPMENT DISTRICT, INC. AND MISSISSIPPI ASSOCIATION OF PLANNING AND DEVELOPMENT DISTRICTS APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons, have an interest in the outcome of this case. These representations are made in order that the Appellate Court may evaluate possible disqualification or recusal. 1. Henry Kinney APPELLANT 4395 Menge Avenue Pass Christian, MS 39571 2. Donald Rafferty, Esq. PRIOR ATTORNEY FOR APPELLANT th 2118 18 Street Gulfport, MS 39502 3. Michael Adelman, Esq. ATTORNEY FOR APPELLANT Adelman & Steen, L.L.P. Post Office Box 368 Hattiesburg, MS 39403-0368 -i-
4. Leonard Bentz EXECUTIVE, DIRECTOR c/o Southern Mississippi Planning & Development District, Inc. 9229 HWY. 49 Gulfport, MS 39503 5. Hugh D. Keating, Esq. ATTORNEY FOR APPELLEE, Dukes, Dukes, Keating & Faneca, P.A. SOUTHERN MISSISSIPPI PLANNING & th th 2909 13 Street, 6 Floor DEVELOPMENT, INC. Gulfport, MS 39501 6. JeNell B. Blum, Esq. ATTORNEY FOR APPELLEE, Dukes, Dukes, Keating & Faneca, P.A. SOUTHERN MISSISSIPPI PLANNING & th th 2909 13 Street, 6 Floor DEVELOPMENT, INC. Gulfport, MS 39501 7. James Harold Herring, Esq. ATTORNEY FOR APPELLEE, Herring, Long & Crews, P.C. MISSISSIPPI ASSOCIATION OF Post Office 344 PLANNING & DEVELOPMENT Canton, MS 39046 DISTRICTS 8. Southern Mississippi Planning APPELLEE & Development District, Inc. 9229 HWY. 49 Gulfport, MS 39503 9. Mississippi Association of Planning & APPELLEE Development Districts Post Office 4935 Jackson, MS 39296 -ii-
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.................................. i TABLE OF CONTENTS.................................................... iii INDEX OF AUTHORITIES................................................. iv PETITION FOR REHEARING............................................... 1 STATEMENT OF ISSUE ON REHEARING.............................. 1 ARGUMENT....................................................... 1 I. THE UNCONTROVERTED EVIDENCE PRODUCED BY APPELLANT IN OPPOSITION TO APPELLEES MOTIONS FOR SUMMARY JUDGMENT CLEARLY AND PLAINLY ESTABLISHES THAT SOUTHERN MISSISSIPPI PLANNING AND DEVELOPMENT DISTRICT, INC. IS A PUBLIC BODY........................................... 1 CONCLUSION..................................................... 8 CERTIFICATE OF SERVICE............................................... 9 -iii-
INDEX OF AUTHORITIES CASES PAGE NO.: Brown v. Credit Center, Inc., 444 So. 2d 358, 362-65 (Miss. 1983)............ 6, 7 Chapman v. State, 1673d 1170 (Miss. 2015).............................. 4 Gall v. U.S., 552 U.S. 28, 50 (2007)..................................... 4 Heigle v. Heigle, 771 so. 2d 341 (Miss. 2000)............................. 4 Jamison v. Barnes, 8 So. 3d 238 (Miss. Ct. App. 2008)...................... 1 Leslie v. City of Biloxi, 758 So. 2d 430, 431 (Miss. 2000).................... 6 Miller v. Provident Adver. & Mktg., 155 So. 3d 181 (Miss. Ct. App. 2014)....... 1 Noxubee County School District v. United National Insurance Company, 883 So. 2d 1159, 1163 (Miss. 2004)............................... 6 Underwood v. State, 708 So. 2d 18, 38 (Miss. 1998)........................ 4 STATUTES Miss. Code Ann. Section 25-4-3 (Rev. 2010).............................. 3 Miss. Code Ann. Section 25-4-103 (Rev. 2010)............................ 6 Miss. Code Ann. Section 25-41-3 (Rev. 2010)............................. 2 Miss. Code Ann. Section 25-61-3 (Rev. 2010)............................. 2 Miss. Code Ann. Section 31-7-1(b) (Rev. 2010)............................ 3 RULES Rule 12(b)(6) of the Mississippi Rules of Civil Procedure.................... 2 -iv-
OTHER AUTHORITIES Executive Order No. 81 (1971).......................................... 3 6 Moore s Federal Practice Section 56.15[1-2] p. 56-435 (1982)................ 7 -v-
IN THE SUPREME COURT OF MISSISSIPPI CASE NO.: 2015-CA-1177 HENRY W. KINNEY APPELLANT VS. SOUTHERN MISSISSIPPI PLANNING AND DEVELOPMENT DISTRICT, INC. AND MISSISSIPPI ASSOCIATION OF PLANNING AND DEVELOPMENT DISTRICTS APPELLEES PETITION FOR REHEARING STATEMENT OF ISSUE ON REHEARING 1. Does the uncontroverted evidence produced by Appellant in opposition to Appellees Motion for Summary Judgment clearly and plainly establish that Southern Mississippi Planning and Development District is a public body. ARGUMENT I. THE UNCONTROVERTED EVIDENCE PRODUCED BY APPELLANT IN OPPOSITION TO APPELLEES MOTIONS FOR SUMMARY JUDGMENT CLEARLY AND PLAINLY ESTABLISHES THAT SOUTHERN MISSISSIPPI PLANNING AND DEVELOPMENT DISTRICT, INC. IS A PUBLIC BODY. 1 1 See Miller v. Provident Adver. & Mktg., 155 So. 3d 181 (Miss. Ct. App. 2014); Jamison v. Barnes, 8 So. 3d 238 (Miss. Ct. App. 2008) Page -1-
The fundamental issue in this case is whether or not Southern Mississippi Planning and Development District, Inc. is a public body subject to Mississippi statutes governing and regulating public and governmental bodies. On this issue, the majority discarded Appellant s position in less than two (2) pages. Appellant raised serious issues, both in uncontroverted factual assertions in his Affidavit and attachments and the introduced deposition of the Chairman of the Southern Mississippi Planning and Development District, Inc. Further, Appellant raised serious legal arguments concerning the public nature of Southern Mississippi Planning and Development District, Inc. Nevertheless, unlike the dissent, none of these issues were addressed by the present majority. Instead, the majority reached a conclusion without any supporting analysis of the arguments and facts presented by Appellant. In essence, the majority treated Appellees motions as Rule 12(b)(6) motions to dismiss rather than motions for summary judgment. 2 Contrary to the lack of analysis provided in the majority Opinion, Chief Justice Waller s dissent recognizes that under Mississippi s Open Meetings Law, a public body is defined as that which is supported wholly or in part by public funds or expends public funds. Miss. Code Ann. Section 25-41-3 (Rev. 2010). Under Mississippi s Public Records Law, a public body is defined as any other entity created by... executive order... Miss. Code Ann. Section 25-61-3 (Rev. 2010). As Chief Justice Waller also notes, Mississippi s Public Procurement Laws define governing authority as any political subdivision of the State supported wholly or in part by 2 Rule 12(b)(6), MRCP Page -2-
public funds of the State of political subdivision. Miss. Code Ann. Section 31-7-1(b) (Rev. 2010). The ethics in government laws define government as any... institution... created by... executive order including all units that expend public funds. Miss. Code Ann. Section 25-4-3 (Rev. 2010). Each of these statutory definitions is consistent with a finding that Southern Mississippi Planning and Development District, Inc. is a public body. Southern Mississippi Planning and Development District is supported wholly by public funds and as a result of Executive Order No. 81 by Governor John Bell Williams, Southern Mississippi Planning and Development District is an official sub-state region. The statutory definition cited by the dissent leaves little doubt that the Southern Mississippi Planning and Development District is a public body and should be so considered upon rehearing. Appellees did not produce one (1) shred of evidence that the District receives any funds from any source other than the government. In other words, it is undisputed that Southern Mississippi Planning and Development District, Inc. is publicly funded. The dissent also recognizes the impact of Executive Order 81 entered five (5) years after the district was incorporated as a non-profit corporation in 1966. The impact of Governor Williams Executive Order cannot be overemphasized. Under Executive Order 81, all of Mississippi s Planning and Development Districts were officially designated as the regional clearinghouses for federal programs and coordination of federal grants. Further, as the dissent notes, the Directory of Mississippi Association of Planning and Development Districts itself, Appellee and Intervener in this case, states that Executive Order 81 designated the Planning and Page -3-
Development District as Mississippi s official sub-state regions. While the present majority opinion states that it disagrees with Kinney s logic, the majority opinion never explains why Governor Williams Executive Order did not bestow planning and development districts with the authority and responsibility of public bodies. Further, the present majority does not explain how a planning and development district is an official state sub-region, but not a public body. As noted supra, Appellee and Intervener Mississippi Association for Planning and Development Districts acknowledges in its own directory that planning and development districts are, in fact, public bodies. Appellant submits that it is insufficient for the majority opinion to simply state that it disagrees with Kinney s logic without providing a reason as to why the present majority comes to that conclusion. Appellate review must be meaningful and adequately explain the basis for the reviewing court s decision. Gall v. U.S., 552 U.S. 28, 50 (2007). See also Heigle v. Heigle, 771 so. 2d 341 (Miss. 2000); Chapman v. State, 1673d 1170 (Miss. 2015); Underwood v. State, 708 So. 2d 18, 38 (Miss. 1998). Unfortunately, the present majority opinion fails to meet this standard. The evidence and facts presented by Mr. Kinney in support of his position below are virtually ignored in the present majority opinion, despite the fact that all of these facts remain unrebutted on the record. Unlike the dissent, the present majority opinion does not discuss the actual structure of planning and development districts. In considering this Petition for Rehearing, Appellant would ask the Court to revisit the Affidavit of Mr. Kinney presented in opposition to Appellees Page -4-
Motions for Summary Judgment and, in particular, the deposition of Mr. Lynn Cartlidge. As the dissent notes, and as the deposition of Mr. Cartlidge affirms, the membership of the district is limited to fifteen (15) county governments and incorporated municipalities contained within those fifteen (15) counties. The districts are supported by public funds and only public funds. There are no non-governmental members of the district and there are no private or individual donors to the district. The following facts were established by Mr. Kinney s detailed Affidavit based on his personal knowledge and submitted in opposition to Appellees Motions for Summary Judgment (and remain unrebutted on the record): 1. SMPDD is composed of a limited number of members. 2. The closed membership of this entity is limited to fifteen (15) County governments and only the incorporated municipalities contained within those fifteen (15) counties. 3. There are no non-governmental members of SMPDD. 4. There are no private or individual donors to SMPDD. 5. Membership in SMPDD is closed. 6. Appellee Kinney pays taxes annually in each of the incorporated municipalities of Harrison County. 7. SMPDD assesses an annual tax on Harrison County which is paid by the County. 8. Kinney s tax payments to Harrison County partially contribute to the membership tax and to other payments made by Harrison County to SMPDD. 9. SMPDD does not pay any ad valorem taxes within Harrison County because the assessor Page -5-
treats as a unit of government. 10. SMPDD owns property within Harrison County that is untaxed by virtue of its status as a unit of government. 11. All of the money used to operate SMPDD is funded by either local, county, state or federal governments. 12. SMPDD does not allow the public access to its books and records in accordance with Miss. Code Ann. Section 25-4-103, et seq. 13. SMPDD s business consists of performing government functions exclusively. 14. SMPDD files its tax returns with the Internal Revenue Service in accordance with the Government Accounting Standards Board. Those standards are exclusively applicable by rule for accounting and financial statements for the United States government, State governments and local governments. 15. SMPDD is not now, nor was it ever, organized as a non-profit corporation since its original and continuing closed membership is solely that of governments. 16. The District s employees are all employees of a government entity and should be treated in exactly the same manner as all public employees. The majority was unwilling to address any of these facts.given the evidence presented by Appellant, it would be difficult to conclude that the present majority viewed this evidence in a light most favorable to Mr. Kinney as required by summary judgment jurisprudence. Noxubee County School District v. United National Insurance Company, 883 So. 2d 1159, 1163 (Miss. 2004); see also Leslie v. City of Biloxi, 758 So. 2d 430, 431 (Miss. 2000); Brown v. Credit Page -6-
Center, Inc., 444 So. 2d 358, 362-65 (Miss. 1983). Put in another way, it is submitted that in order for the majority to reach its conclusions, and view the evidence as required by summary judgment jurisprudence, it must address the facts in detail. In Brown, the Mississippi Supreme Court quoted the following admonition from 6 Moore s Federal Practice Section 56.15[1-2] p. 56-435 (1982): If there is to be error at the trial level it should be in denying summary judgment and in favor of a full live trial. And the problem of overcrowded calendars is not to be solved by summary disposition of issues of fact fairly presented in an action. Even assuming per arguendo, that the Court was correct in affirming the Chancery Court as to the recusal and the intervention issues, the Opinion of the present majority fails to make an accurate and detailed analysis of the facts involved in this case. In some ways, the recusal and intervention issues are red herrings. They do not constitute the main thrust of this case. Where the majority opinion fails is in its failure to acknowledge and analyze the statutes cited by both Appellant and the dissent; even discuss, let alone analyze, the membership structure and funding of planning and development districts; or acknowledge or discuss the manner in which Southern Mississippi Planning and Development District, Inc. maintains, accounts for and reports its income and spending. In that regard, perhaps the most salient omission by the majority is its failure to even discuss the fact that Southern Mississippi Planning and Development District, Inc., like all planning and development districts in the State of Mississippi, is subject to public audit. If nothing else, this fact alone overwhelmingly establishes that planning and development districts are, indeed, public bodies. Page -7-
CONCLUSION For the reasons set forth in this Petition, Appellant, Henry W. Kinney, respectfully requests that the Mississippi Supreme Court grant his Petition for Rehearing. Upon doing so, Appellant submits that the Mississippi Supreme Court should reverse the decision of the Harrison County Chancery Court in this matter and find that Southern Mississippi Planning and Development District, Inc. is a public body and subject to Mississippi s Open Meetings Law, Public Records Law, Public Procurement Laws and those laws pertaining to Ethics in Government. This case raises issues of public importance and the public is entitled to wellreasoned analysis of the facts and law. Unfortunately, contrary to the dissent, the majority Opinion does not provide such an analysis. Further, a full reasoned analysis of the factual issues is this case may also allow the Court itself to resolve the various issues raised by the dissent. Respectfully submitted, s/michael ADELMAN, ESQ. MICHAEL ADELMAN, ESQUIRE ADELMAN & STEEN, L.L.P. POST OFFICE BOX 368 HATTIESBURG, MS 39403-0368 (601) 544-8291; (601) 544-1421 (FAX) MS BAR NO. 1153 COUNSEL FOR APPELLANT, HENRY W. KINNEY Page -8-
CERTIFICATE OF SERVICE This is to certify that I, Michael Adelman, attorney for Appellant, Henry W. Kinney, have served the above and foregoing PETITION FOR REHEARING via using this Court s MEC system, in which notification will automatically be provided to the following counsel of record: Hugh D. Keating, Esq. Je Nell Blum, Esq. Dukes, Dukes, Keating & Faneca, P.A. Post Office Drawer W Gulfport, MS 39502 James W. Herring, Esq. Herring, Long & Crews, P.C. Post Office Box 344 Canton, MS 39046 Further, I hereby certify that I have mailed via the United States Postal Service the document to the following: Honorable Sanford R. Steckler Post Office Box 659 Gulfport, MS 39506 th This, the 25 day of August, A.D., 2016. MICHAEL ADELMAN, ESQUIRE ADELMAN & STEEN, L.L.P. POST OFFICE BOX 368 HATTIESBURG, MS 39403-0368 (601) 544-8291; (601) 544-1421 (FAX) EMAIL: adelst33@aol.com MS STATE BAR NO. 1153 ATTORNEY FOR PLAINTIFF, HENRY W. KINNEY s/michael ADELMAN, ESQ. Page -9-