IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-CA-01088-SCT

ALICE SCOTT, MAYOR OF THE CITY OF CANTON,

MISSISSIPPI AND GAIL SHAW-PIERSON

v.

STANLEY F. STATER, III

DATE OF JUDGMENT: 10/12/95

TRIAL JUDGE: HON. JOHN B. TONEY

COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANTS: EDWARD BLACKMON

ATTORNEY FOR APPELLEE: L. ABRAHAM ROWE, JR.

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: AFFIRMED - 12/11/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 1/2/98

EN BANC.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. This case involves a dispute between the Mayor and the Board of Aldermen of the City of

Canton, Mississippi and the limitations of the powers of both the mayor and the board of aldermen.

¶2. Stanley F. Stater, III, was appointed municipal judge for the City of Canton for a partial term

beginning in January of 1995. On September 19, 1995, at a meeting of the mayor and board of

aldermen, Stater was appointed for the remainder of the term. The board of aldermen were divided

with five voting in favor of appointment and two voting against. The next day, Mayor Scott filed her

"Veto and Veto Message" and vetoed the board's action in regard to the appointment of Stater. On

September 22, 1995, Mayor Scott delivered to Mr. Stater a letter notifying him that he was

suspended from the office of city judge.

¶3. On September 25, 1995, a written notice of a Special Meeting of the Mayor and Board was

circulated among and signed by the aldermen, mayor, city clerk, chief of police and city attorneys

calling for a meeting on September 26, 1995, and announcing that the purpose therefore was to
"override Mayor's veto of the appointment of Stanley F. Stater, III, as the City of Canton Municipal

Court Judge, as well as his suspension from that office."

¶4. On September 26, 1995, at 4:00 o'clock p.m., the time set in the notice, five of the aldermen

appeared at City Hall to attend the called Special Meeting. Mayor Scott was present at City Hall but

did not attend the meeting.

¶5. Although the aldermen, clerk, and city attorney had gathered in the meeting room and were ready

to proceed with the only item on the agenda, the mayor did not enter the room. Mayor Scott was

then personally reminded that the time had come for the meeting. However, she remained outside of

the meeting room in the clerk's office approximately twenty feet away and would not enter.(1)

¶6. The board members present then called the meeting to order by their unanimous consent. A

motion was made to adopt a resolution overriding the mayor's veto of the appointment of Mr. Stater

as Municipal Judge and to authorize Mr. Stater to serve in that capacity without interference from the

mayor until further order of the mayor and board. The motion was properly seconded and approved

unanimously by the five (5) members present.

¶7. During the controversy described above, the mayor, acting without advice or consent of the

board "appointed" Gail Shaw-Pierson as Municipal Judge Pro Tempore for the City of Canton.

¶8. Scott's complaint about Stater is that he served as Municipal Judge and Chairman of the

Republican Party of Madison County at the same time, and that in his dual roles he endorsed

candidates, raised funds on behalf of candidates for political office, made speeches on behalf of

political candidates, and generally ran the county Republican Party organization. Scott contends that

this conduct violates the Code of Judicial Conduct, specifically Canon 7 of the Code of Judicial

Conduct, which reads in pertinent part:

A. Political Conduct in General.

(1) A judge or a candidate for election to judicial office should not:

(a) act as a leader or hold any office in a political organization;

(b) make speeches for a political organization or candidate or publicly endorse a candidate for

public office;

(c) solicit funds for or pay an assessment or make a contribution to a political organization or

candidate, attend political gatherings, or purchase tickets for political party dinners, or other

functions, except as authorized in subsection A(2).

Code of Judicial Conduct Canon 7. "Compliance with the Code of Judicial Conduct" sets out an

exception to compliance with certain canons in particular circumstances. The relevant part reads:

Anyone, whether or not a lawyer, who is an officer of a judicial system performing judicial

functions, including an officer such as a referee in bankruptcy, special master, court

commissioner, or magistrate, is a judge for the purpose of this Code. All judges should comply

with this Code except as provided below.
A. Part-Time Judge. A part-time judge is a judge who serves on a continuing or periodic

basis, but is permitted by law to devote time to some other profession or occupation and whose

compensation for that reason is less than that of a full-time judge.

A part-time judge:

(1) is not required to comply with Canon 5C(2), D,E, F, and G, and Canon 6C.

Code of Judicial Conduct, Compliance with the Code of Judicial Conduct (A)(1). Scott maintains

that even though Stater is a part-time judge, Canon 7 pertaining to political party participation is

applicable. Since Stater has continued to chair a political organization, Scott maintains that Stater

violated the Code of Judicial Conduct. Because Stater violated the Code, Scott, as chief

administrative officer of the City of Canton, and in order to preserve the propriety of Canton's

municipal court, suspended Stater and appointed Gail Shaw-Pierson as the Municipal Judge Pro

Tempore. The suspension and appointment were singular acts of the mayor without approval by the

board of aldermen.

¶9. Scott bases the authority of her actions on two Attorney General Opinions which state that the

mayor may suspend city employees with pay. See Attorney General letters to: Sarah W. Grantham,

1989 WL 451638 (Miss. A.G. Oct. 27, 1989); John H. McWilliams, 1991 WL 533533 (Miss. A.G.

July 25, 1991). Scott contends that the mayor has a duty to actively and vigilantly enforce all laws

and ordinances for the municipality government. Miss. Code Ann. § 21-15-9 (1990). Since Scott

claims that Stater has violated the Code of Judicial Conduct, Scott maintains that as mayor she has an

obligation to prevent city employees from violating the law. Scott bases her authority to suspend

Stater on Miss. Code Ann. § 21-3-15(1) (1990), which states in part that the mayor "shall have the

superintending control of all officers and affairs of the municipality, and shall take care that the laws

and ordinances are executed." Miss. Code Ann. § 21-3-15(1) (1990).

¶10. Scott's argument fails to consider all relevant Attorney General Opinions. While Attorney

General Opinions have stated that the mayor has the authority to suspend city employees with pay,

only the board of aldermen has authority to suspend city employees without pay. Attorney General

Opinion to John H. McWilliams, 1991 WL 533533 (Miss. A.G. July 25, 1991). Furthermore, "[I]t

is the opinion of this office that in a code charter municipality it is the board of aldermen that is the

appointing authority and has the responsibility of hiring and firing subject to the Mayor's veto."

Attorney General Opinion to Mayor Eugene Wakham, 1987 WL 121405 (Miss. A.G. Feb. 9, 1987)

. See also Miss. Code Ann. §§ 21-3-3, 21-3-5, and 21-3-15 (1990). Scott could suspend Stater, but

with pay. Only the board of aldermen could suspend Stater without pay or discharge him.

¶11. Canton is a code charter municipality. A code charter designates authority to the board of

aldermen to appoint officers of the municipality while the mayor votes when the board is equally split.

See Miss. Code Ann. §§ 21-3-3 and 21-3-15 (1990). The mayor can affirm or veto the appointment.

Miss. Code Ann. § 21-3-15(2) (1990).

¶12. Neither the mayor nor the board of aldermen may remove a municipal judge once on the bench

on their own authority where the municipal judge has violated the Code of Judicial Conduct. This

rule provides a safeguard protecting the court system from the usurpation of political power and

influence. Article 6, § 177A of the Mississippi Constitution provides for a Commission on Judicial
Performance which recommends to the Mississippi Supreme Court what action should be taken

against a judge who has violated the terms of his office. Miss. Const. of 1890, art. VI, § 177A. See

also In re Anderson, 412 So.2d 743, 744 (Miss. 1982). Thus, while a mayor may have an obligation

to file a formal complaint with the Judicial Performance Commission, the mayor does not have the

authority to suspend a properly appointed judge from serving on the bench.

¶13. Stater's complaint in the nature of a Petition for a Writ of Quo Warranto in the Circuit Court of

Madison County resulted in that court issuing a temporary restraining order, finding that Stater was

the rightfully appointed municipal judge of the City of Canton. For the reasons set out below we

affirm the order of the Circuit Court of Madison County.

¶14. There is no question that initially Stater was lawfully appointed. Without doubt Mayor Scott had

authority to veto the appointment. The City of Canton operates as provided in Miss. Code Ann. § 21-

3-1 et seq (1990). In Canton, the governing authorities consist of a mayor and seven aldermen. Under

§ 21-3-15, the duties of the mayor are defined as follows:

(1) The mayor shall preside at all meetings of the board of aldermen, and in case there shall be

an equal division, he shall give the deciding vote. He shall have the superintending control of all

the officers and affairs of the municipality, and shall take care that the laws and ordinances are

executed.

(2) Ordinances adopted by the board of aldermen shall be submitted to the mayor. The mayor

shall, within ten (10) days after receiving any ordinance, either approve the ordinance by

affixing his signature thereto, or return it to the board of aldermen by delivering it to the

municipal clerk together with a written statement setting forth his objections thereto or to any

item or part thereof. No ordinance or any item or part thereof shall take effect without the

mayor's approval, unless the mayor fails to return an ordinance to the board of aldermen prior

to the next meeting of the board, but no later than fifteen (15) days after it has been presented

to him, or unless the board of aldermen, upon reconsideration thereof on or after the third day

following its return by the mayor, shall, by a vote of two-thirds ( 2/3 ) of the members of the

board, resolve to override the mayor's veto.

(3) The term "ordinance" as used in this section shall be deemed to include ordinances,

resolutions and orders.

Miss. Code Ann. § 21-3-15 (1990). The mayor only votes when the aldermen are equally split. Here

the aldermen voted five to two to appoint Stater as municipal judge. Under § 21-3-15(2), the mayor

can veto the aldermen's ordinances. Here Mayor Scott exercised her veto power as provided by

statute. The aldermen may override a mayor's veto by a two-thirds majority vote. In a municipality

consisting of seven aldermen, at least five votes are needed to override the mayor's veto.

¶15. The issue is whether the aldermen of Canton had a proper two-thirds majority vote to override

Mayor Scott's veto.(2) At the properly called meeting to override the veto, five aldermen attended and

voted to override the veto by a five to zero vote. The mayor and two aldermen were not present.

Under Miss. Code Ann. § 21-3-13 (1990), the board of aldermen elect from among themselves a

mayor pro tempore who serves as mayor when the mayor is temporarily absent or disabled. Mayor

Scott argues that since she, as mayor, did not preside over the meeting, the mayor pro tempore's vote
was improper since the mayor pro tempore may only vote as the mayor can, when the aldermen's

vote is split equally. Under Mayor Scott's theory of law, the board had only a four to zero vote which

was insufficient to override her veto.

¶16. The circuit court held that the aldermen vote of five to zero, which included the mayor

tempore's vote, was valid and overrode the mayor's veto. The circuit court found that Mayor Scott's

argument failed for two reasons:

First, the meeting of the Board on this particular matter was clearly a legislative function of the

board taken in response to the executive veto. The presence of the mayor at this meeting for the

mere purpose of "calling it to order" would have been a meaningless gesture on her part.

However, even if we assume arguendo that the Mayor should have been "present" to have a

valid meeting, in truth and in fact she was present. Miss. Code Ann. § 21-3-13 allows a board

member to serve as mayor tempore in cases of "temporary absence or disability of the mayor."

In the instant case, the mayor was neither absent or [sic] disabled. She was in the City Hall

building, on the same floor, in an adjacent room approximately twenty (20) feet away. She

could have easily entered the meeting room and assumed her duties if she desired to do so.

The court concluded that the actions of the five board members were properly considered and

effective in overriding Mayor Scott's veto. We agree.

¶17. This case turns on the meaning of the phrase "temporary absence" found in Miss. Code Ann.

§ 21-3-13 (1990). This Court has not previously addressed the meaning of the phrase "temporary

absence." Other jurisdictions have addressed this concept in the framework of the constitutional

duties of the governor and lieutenant governor. See State ex. rel. Ashcroft v. Blunt, 813 S.W.2d

849, 852-53 (Mo. 1991). Two interpretations of the phrase have been advanced: 1) the "physical

absence" rule, and 2) the "effective absence" principle. Id. Under the "physical absence" rule, the

transfer of duties is triggered when the official leaves the state. Id. at 852. The "effective absence"

principle turns on whether the official's physical absence prevents her from performing the duties of

the office. Id. at 852-53.

¶18. Here, Scott's refusal to enter the room where the aldermen were meeting does not satisfy the

requirements of either test. Scott was not physically absent from the jurisdiction, being only twenty

feet from the meeting room. Neither was she absent from the jurisdiction in a way which prevented

her from performing her duties as mayor. Whatever "temporary absence" does mean, it clearly does

not embrace the behavior in this case. The board of aldermen, therefore, were not required to elect

from among themselves a mayor pro tempore who would be constrained from participating in the

vote to override the veto. To require such would give the mayor unbridled power to skew the vote

simply by refusing to attend the meeting.

¶19. We decline to grant the motion filed by Stater to dismiss the appeal pursuant to Miss. R. App. P.

2(a)(2)(i). Scott certainly had standing to prosecute the appeal both as an individual and as Mayor of

Canton. After all, the important issue on appeal is the determination of the authority of both the

mayor and the board of aldermen in a code charter municipality. The mayor had no authority to

suspend Stater without pay and certainly under the Code Charter had no authority to appoint GailShaw Pierson as Judge Pro Tempore. If the mayor believes that the judge violated the Code of
Judicial Conduct, the mayor's course of action is to file charges with the Mississippi Judicial

Performance Commission.

¶20. The judgment of the Circuit Court of Madison County, Mississippi is affirmed.

¶21. AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, McRAE, SMITH AND MILLS, JJ., CONCUR.

BANKS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN

OPINION. ROBERTS, J., NOT PARTICIPATING.

BANKS, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶22. I concur with the majority opinion and all that is said save that portion of the opinion which

preserves the attempt to override the mayor's veto.

¶23. Our statute providing that the mayor pro tem serves as the mayor in the mayor's absence has

been interpreted in a long series of opinions from our attorney general to mean that in the mayor's

absence the acting mayor who presides in the mayor's stead does not count for a quorum and cannot

vote except in instances where the mayor could have voted, that is, where the votes are evenly

divided. See, e. g., A. G. Opinion, Docket No. 81-1105 (1981); A. G. Opinion, Docket No. 82-946

(1982). While these opinions clearly do not have the force of law, they are responsive to the statute

which they interpret and have guided municipal operations over the years.

¶24. The statute does not prescribe conditions for the mayor's absence. Miss. Code Ann. § 21-3-13

(1990). The statute has been read and I so read it to mean absence from the meeting, for whatever

reasons, including political reasons. Refusal to participate in order to deny a quorum or otherwise is a

time-tested, if not honored, political tool. The problems that the use of such tools can cause in the

operation of local government, should be resolved politically.

¶25. In the meeting in question someone had to preside. That person was acting mayor and could not

vote. There were then insufficient remaining votes to override the mayor's veto. I would reverse the

judgment of the circuit court.

1. Mayor Scott testified that she stayed in the clerk's office in order to be available to assist citizens

with the payment of traffic fines and tax redemptions and other services because the office was shorthanded.

2. Stater contends that the mayor lacks the authority to veto the aldermen's appointment of a

municipal judge. Stater cites Rich v. McLaurin, 83 Miss. 95, 35 So. 337 (1903), for the premise that

the mayor may not veto the appointment of a police justice. However, Rich essentially was overruled
when the Mississippi Legislature amended Miss. Code Ann. § 21-3-15. See Edwards v. Weeks, 633

So.2d 1035 (Miss. 1994). In Edwards, this Court determined that the Legislature amended

"measure" as found in 21-3-15 in Rich to "ordinances" with a broadened definition found in a new

subsection 3. Edwards, 633 So.2d at 1036-37. This Court concluded that the amended language gave

the mayor authority to veto the board of aldermen's appointment of the city attorney.