IN THE SUPREME COURT OF MISSISSIPPI

NO. 2000-IA-00962-SCT

BOARD OF TRUSTEES OF STATE INSTITUTIONS OF HIGHER LEARNING; RICKI R.

GARRETT; CARL NICHOLSON, JR.; NAN McGAHEY BAKER; THOMAS W. COLBERT;

WILLIAM S. CRAWFORD; LARRY E. HOMAN; J. MARLIN IVEY; JAMES ROY KLUMB;

JAMES W. LUVENE; D.E. MAGEE, JR.; VIRGINIA SHANTEAU NEWTON; CASSIE

PENNINGTON; THOMAS LAYZELL; UNIVERSITY OF SOUTHERN MISSISSIPPI;

HORACE FLEMING; AND JAMES O. WILLIAMS

v.

OLON E. RAY; TED J. ALEXANDER; JIMMY C. HOPPER; MISSISSIPPI ASSOCIATION

OF COMMUNITY AND JUNIOR COLLEGES INTER-ALUMNI ASSOCIATION; BENNIE

STONE GOODEN; ROBERT LAMAR GOZA; H. KIRK MOORE, JR.; BEVERLY C.

SMITH; K. KEENAN BENEFIELD; CORNELIUS B. CARTER; MEREDITH HARPER;

ARVELLE S. HODGE; SHUNYA D. HUNT; MARTHA H. McILWAIN; JASON REESE;

JEFF ROBERTSON; LAURA K. PETERSON; TALMADGE PORTIS, JR.; BOBBY F.

THRASH; MISSISSIPPI FACULTY ASSOCIATION FOR COMMUNITY AND JUNIOR

COLLEGES; MAGDALENE ABRAHAM; KENNETH R. BISHOP; JANICE E. DUNCAN;

SANDRA H. GRISHAM; TOM SHEPHERD, JR.; EDDIE C. SMITH; JAMES R. SMITH;

KENNETH J. TAYLOR; WALTON B. WILSON; WILLIAM M. BREWER; CURTIS L.

DAVIS; MARSHALL THOMAS HEWLETT; LINDA WEEKS HILL; WILLIAM H. SNELL,

JR.; L. D. STRINGFELLOW; W.L. VIERLING; MISSISSIPPI STATE BOARD FOR

COMMUNITY AND JUNIOR COLLEGES; MISSISSIPPI ASSOCIATION OF

COMMUNITY AND JUNIOR COLLEGES

DATE OF JUDGMENT: 5/30/2000

TRIAL JUDGE: HON. WILLIAM HALE SINGLETARY

COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANTS: REUBEN V. ANDERSON

JAMES W. CRAIG

VINCENT J. BODIN

ATTORNEYS FOR APPELLEES: JAMES LAWTON ROBERTSON

PAUL E. BARNES

NATURE OF THE CASE: OTHER

DISPOSITION: REVERSED AND RENDERED-02/28/2002

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 3/21/2002

EN BANC.
SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1. Appellees filed this suit on December 22, 1999, in the Chancery Court of the First Judicial District of

Hinds County. Appellees claim that the Board of Trustees of State Institutions of Higher Learning (IHL)

violated Mississippi law in allowing the University of Southern Mississippi-Gulf Park (USM-GP) to begin

offering freshman and sophomore courses as part of its curriculum. On January 19, 2000, they filed a

Motion for Preliminary injunction to enjoin Appellants from commencing the offering of lower level courses

at the USM-GP campus. Appellants moved to dismiss the complaint under Rule 12(b)(6) of the Mississippi

Rules of Civil Procedure. Following a hearing on the motions submitted, the trial court denied the motion to

dismiss and granted the preliminary injunction. Appellants, unopposed by Appellees, immediately applied

for an interlocutory appeal. On May 30, 2000, the Chancery Court certified the case for interlocutory

appeal, which this Court accepted.

¶2. We hold that Miss. Code Ann. § 7-5-1 (1991) requires consent of the Attorney General prior to filing a

suit between state agencies. Appellees did not obtain this consent, thus the suit is barred. We also hold that

our statutes do not designate a specific location for USM's campus. Thus, IHL created a dual campus

rather than an off-campus location when it approved the Gulf Coast location. State law is not violated.

Finally, and more importantly, we hold that the State Board for Community and Junior Colleges (SBCJC)

cannot be established as a body with veto power per statute over IHL's constitutionally mandated power to

manage and control the state's universities. We also find that the Mississippi State Board for Community

and Junior College plaintiffs do not have standing, thus, their federal civil rights claims are moot. We reverse

and render the trial court's judgment with prejudice.

FACTS

¶3. The IHL was created to oversee Mississippi's state colleges and universities. The Mississippi State

Board for Community and Junior Colleges (SBCJC) performs the same function for the state's junior

colleges. Miss. Code Ann. § 37-102-3 (2001) provides that the IHL "shall not permit its universities to

offer courses for college credit at the lower undergraduate level at an off-campus site unless approved by

the [SBCJC]. . . ."

¶4. The USM-GP and the Mississippi Gulf Coast Community College (MGCCC) operated in conjunction

on the Gulf Coast. The MGCCC offered freshman and sophomore courses and the USM-GP offered

junior and senior courses. Beginning in the early 1990's, there was a push to have a four-year university on

the Coast. This culminated in 1998 in a request by Representative Diane Peranich of Harrison County for

an opinion from Attorney General Mike Moore regarding whether IHL could authorize the University of

Southern Mississippi (USM) to establish a full four-year university there. The Attorney General responded

that USM had no statutorily designated campus, and the IHL should be able to establish any location as a

campus for USM. Thus, such a decision would not be subject to the mandate of § 37-102-3.

¶5. SBCJC asked the Attorney General about filing suit against IHL over this action (there is some debate

over this between the parties-but there was clearly correspondence between the SBCJC and the Attorney

General), and permission was never given to file suit; although, permission was given to hire an attorney to

look into the legality of IHL's actions in relation to the SBCJC. After repeated communications, the

Attorney General instructed the SBCJC to meet with IHL members and those involved with the USM-GP

project to see if an amicable solution could be reached. Shortly after this request, the SBCJC again

requested permission to file suit, rather than attempting any type of meeting as it had been instructed. Within
a week following this letter, and prior to any sort of response from the Attorney General, the SBCJC, along

with several individuals and unincorporated organizations, filed suit against the IHL. SBCJC was granted a

preliminary injunction to halt USM-GP from offering lower level undergraduate courses. IHL filed a Motion

to Dismiss, and the trial judge denied it. The judge then certified an interlocutory appeal, which this Court, in

turn, granted. See M.R.A.P. 5.

STANDARD OF REVIEW

¶6. A motion to dismiss under Miss.R.Civ.P. 12(b)(6) raises an issue of law. Arnona v. Smith, 749 So.

2d 63, 65 (Miss. 1999) (citing Tucker v. Hinds County, 558 So.2d 869 (Miss.1990); Lester Eng'g

Co. v. Richland Water & Sewer Dist., 504 So.2d 1185, 1187 (Miss.1987)). This Court conducts de

novo review on questions of law. Id. (citing UHS-Qualicare, Inc. v. Gulf Coast Comity. Hosp., Inc.,

525 So.2d 746, 754 (Miss.1987)). "When considering a motion to dismiss, the allegations in the complaint

must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff

will be unable to prove any set of facts in support of his claim." Id. (citing Overstreet v. Merlos, 570 So.2d

1196 (Miss.1990); DeFoe v. Great S. Nat'l Bank, 547 So.2d 786 (Miss.1989); Comet Delta, Inc. v.

Pate Stevedore Co. of Pascagoula, Inc., 521 So.2d 857 (Miss.1988); T.M. v. Noblitt, 650 So.2d

1340, 1342, (Miss.1995)). Further, this Court has stated that "in order to survive a Rule 12(b)(6) motion,

the complaint need only state a set of facts that will allow the plaintiff 'some relief in court.'" State v.

Dampeer, 744 So. 2d 754, 756 (Miss. 1999) (quoting Weeks v. Thomas, 662 So. 2d 581, 583 (Miss.

1995)).

DISCUSSION

¶7. There are essentially three issues involved in this appeal. First, whether § 7-5-1, which requires consent

of the Attorney General prior to a suit between state agencies, acts as a bar to this suit. Second, whether

the IHL and USM may offer first and second year courses on the Coast without the approval of the

SBCJC. Third, whether IHL's actions violate federal civil rights laws.

(1) WHETHER § 7-5-1, WHICH REQUIRES THE ATTORNEY GENERAL'S CONSENT

PRIOR TO COMMENCEMENT OF A SUIT BETWEEN STATE AGENCIES, ACTS AS

A PROCEDURAL BAR IN THE CASE BELOW?

¶8. Miss. Code Ann. § 7-5-1 (1991) states:

No arm or agency of the state government shall bring or defend a suit against another such arm or

agency without prior written approval of the Attorney General. He shall have the powers of the

Attorney General at common law and is given the sole power to bring or defend a lawsuit on behalf of

a state agency, the subject matter of which is of statewide interest, and he shall intervene and argue

the constitutionality of any statute when notified of a challenge thereto, pursuant to the Mississippi

Rules of Civil Procedure.

IHL argues that this is a suit between SBCJC and IHL, two state agencies, and thus requires the consent of

the Attorney General. Since that consent was never given, IHL contends that this suit should be dismissed.

¶9. The Appellees argue that the SBCJC is a party joined under Rule 19(a), Miss. R. Civ. P., and that the

other Appellees, who are the "real Plaintiffs" and do not have to gain consent to file suit, have standing on

their own. IHL argues in response to this that the remaining parties do not have standing because they have
no colorable interest in the suit. The Appellees also argue that the Attorney General is the only appropriate

person to exercise the "veto" power under § 7-5-1. The Appellees further note that the Attorney General

virtually ignored SBCJC's requests for consent to file suit, and had thus inappropriately chosen sides. They

contend that he should be estopped from objecting to SBCJC's participation in this suit based on his

inaction prior to the suit.

¶10. The remaining Appellees are individuals and private organizations. The individuals are current students,

alumni, administrators and faculty of junior colleges across the State; Gulf Coast taxpayers; African

Americans who reside in the State; and three unincorporated associations which are composed of alumni,

faculty and supporters of junior colleges in the State. These Appellees contend that they will suffer unique

harm if the USM-GP is allowed to offer a full four-year curriculum.

¶11. Those directly involved with the junior colleges (students, alumni, administrators, faculty and

organizations) argue that they have a property right "in the educational investment of time, money and effort

and other resources that he or she has made and a liberty interest in the continued enjoyment of all of the

rights, privileges and immunities appertaining thereto." The Gulf Coast taxpayers believe "that the investment

he or she [has made...] is being compromised and damaged by the actions of the IHL Board." As for the

African American Appellees, they contend that the African American community is particularly benefitted

by the junior college system in place in Mississippi. Due to this, they argue that the harm suffered by the

junior college system because of the actions of the IHL Board will have a distinct negative impact on them.

¶12. This Court has previously stated the generally settled rules in regard to standing:

Parties may sue or intervene when they assert a colorable interest in the subject matter of the litigation

or experience an adverse effect from the conduct of the defendant, [citations omitted], or as otherwise

authorized by law. [citations omitted]. Harrison County v. City of Gulfport, 557 So. 2d 780, 782

(Miss. 1990). Standing is like any other charge of a party's pleading. It is subject to the rule...that we

take as true the allegations on the face of the complaint.

State ex rel. Moore v. Molpus 578 So. 2d 624, 632 (Miss. 1991). In Van Slyke v. Board of Trustees

of Institutions of Higher Learning this Court found that the Plaintiff had standing to challenge the

composition of the IHL Board, and noted that the Supreme Court has "been more permissive in granting

standing to parties who seek review of governmental actions." Van Slyke v. Board of Trustees of

Institutions of Higher Learning, 613 So. 2d 872, 875 (Miss. 1993) (citing Board of Trustees v. Van

Slyke, 510 So. 2d 490, 496 (Miss. 1987) (Prather, J. dissenting)). The Court further stated that:

The argument persists that citizens should have the authority to challenge the constitutionality and/or

review of governmental action, and if individuals do not have such authority, how else may

constitutional conflicts be raised. This is particularly true when a public official charged with such a

duty fails to act. Constitutional litigation by private citizens may be maintained in cases where there is

no probability of the statute being challenged by one of the class discriminated against; or, when a

decision on validity would not be necessary, one not within the class may question the validity of the

statue. Miller v. Lamar Life Insurance Co., 158 Miss. 753, 131 So. 282 (Miss. 1930).

Id. (citing Board of Trustees v. Van Slyke, 510 So. 2d at 497 (Prather, J. dissenting)).

¶13. Here, a public official has not refused to act; in fact, in this particular case there has been much activity
on the part of those political bodies involved. This certainly lessens support for allowing action by

uninvolved citizens. Even considering the more liberal stance taken towards finding standing for those

challenging governmental actions, we find that the plaintiffs below do not assert a colorable interest in the

subject matter of this suit.

¶14. IHL argues that the SBCJC is procedurally barred from proceeding with this action, as § 7-5-1

prohibits a state agency from bringing suit against another state agency without the permission of the

Attorney General. Appellees contend that § 7-5-1 is unenforceable in this instance since the SBCJC was

joined as an indispensable party. The Appellees argue in the alternative that § 7-5-1 should not apply to bar

this suit even if the SBCJC is found to be a regular Plaintiff, and not a Rule 19 Plaintiff.

¶15. The SBCJC cites Frazier v. State, 504 So. 2d 675 (Miss. 1987), as supporting its contention that

§ 7-5-1 should not act as a procedural bar to the present suit. In Frazier, a group of defendants were

appealing from declaratory judgments that they had violated constitutional provisions against public officers

having an interest in a contract while serving in a public capacity that aided in the formation of the contract.

Id. The Ethics Commission (the "Commission") investigated several public officials and reported them to the

Attorney General's office. Id. The Attorney General filed a civil suit against some of the defendants.

Following this, the Commission brought suit against the remaining defendants. One of the issues on appeal

was whether the Commission had authority to bring such a suit, or whether it was barred due to the

authority given to the Attorney General to bring such suits. This Court found that the Commission was not

barred from instituting such a suit under the particular circumstances of that case.

¶16. The case sub judice is easily distinguished from Frazier. In the present case the SBCJC had been

advised by the Attorney General to meet with members of the IHL board and USM to discuss possible

ways to settle the matter. The Attorney General advised the SBCJC that if they were then unable to come

up with a workable compromise that he would then consider allowing a law suit to proceed. In Frazier, the

Attorney General had already filed suit against some of the defendants, and thus it was clear he did not

intend to pursue the remaining defendants that had been suggested by the Commission. Further, this Court

stated in Frazier that:

If this suit was necessary in order for the members of the Commission to properly fulfill the functions

and responsibilities with which they were charged [by statute], then they were manifestly entitled to

have some attorney represent the Commission in pursuing the matter in court.

504 So. 2d 675, 691 (Miss. 1987). In the case at bar, it was not necessary for the SBCJC to file suit in

order to fulfill the duties imposed on it by statute. As stated, the Attorney General had not absolutely denied

their request to file suit; he simply called for a stay of any such proceedings until the two sides met and

attempted to come up with a solution agreeable to all.

¶17. Frazier is also distinguished by the statutory purpose and authority afforded the Ethics Commission

versus that of the SBCJC. Miss. Code Ann. § 25-4-19 (1999) provides a listing of the statutory powers

granted to the Ethics Commission.(1) This Code Section expressly authorizes the Commission to pursue

legal remedies when it believes such action is called for. Miss. Code Ann. § 37-102-3 (2001) provides that

the IHL shall get approval from the SBCJC prior to authorizing university freshman and sophomore classes

at an off-campus location. Miss. Code Ann. § 37-4-3 (2001) delineates the authority and powers granted

to the SBCJC.(2) This section gives no authority for the SBCJC to pursue judicial relief.
¶18. The Attorney General is the chief legal officer and advisor for the State and is charged with handling all

litigation on its behalf, including where one state agency sues another. Miss. Code Ann. § 7-5-1. The

Attorney General's written approval must be obtained before one agency sues another. Id. In the case

before us now, the Attorney General neither refused to sue on the SBCJC's behalf nor gave written

permission for the SBCJC to pursue its claims in court. Commendably, the Attorney General attempted to

seat the parties at the negotiation table where an amicable agreement could be reached. Before this could

happen, the SBCJC filed suit. By taking such action before the time was ripe, the SBCJC demonstrated an

unwillingness to work with the Attorney General to avoid litigation between two state agencies. Since the

SBCJC acted without requisite approval from the Attorney General when no failure to proceed on his part

can be demonstrated, Frazier cannot serve as grounds to support its actions.

¶19. The SBCJC has organized a large group of citizens to file suit in what amounts to a blatant attempt at

subterfuge to get around the dictates of § 7-5-1. To allow this case to proceed would be to allow the

SBCJC to make an end run around the law, and this we will not allow. We find that the Appellees are

barred from proceeding with this action under § 7-5-1.

(2) WHETHER THE IHL AND USM MAY OFFER FIRST AND SECOND YEAR

COURSES ON THE COAST WITHOUT THE APPROVAL OF THE SBCJC?

¶20. IHL further argues that its actions do not violate any Mississippi law. Mississippi Code Ann. § 37-

102-3 states:

The Board of Trustees of State Institutions of Higher Learning shall not permit its

universities to offer courses for college credit at the lower undergraduate level at an offcampus site unless approved by the State Board for Community and Junior Colleges. The

Board of Trustees of State Institutions of Higher Learning, in cooperation with the State Board for

Community and Junior Colleges, shall study the need and advisability of offering (a) courses for

college credit at the lower undergraduate level, and (b) advanced centers for technology partnerships

for industrial training and professional development for credit and noncredit courses, at the following

off-campus sites by four-year public state institutions of higher learning:

the Mississippi Gulf Coast counties; Greenville, Mississippi; Columbus, Mississippi; McComb,

Mississippi; Hattiesburg, Mississippi; Meridian, Mississippi; Laurel, Mississippi; and any other

proposed area of the state. Any such study shall take into account the ongoing programs of the

community and junior colleges in the State of Mississippi when said board authorizes off- campus

programs created under this chapter. It is the intent of the Legislature to meet the educational needs of

students who do not have ready access to the educational opportunities that they desire. It is the

further intent of this chapter that university off-campus programs established hereunder will in no way

usurp the responsibilities of the public junior colleges of the State of Mississippi. The board shall

establish such rules and regulations as it deems necessary and proper to carry out the purposes and

intent of this chapter.

¶21. IHL notes the mandate of § 37-102-3, but also points out Article 8, § 213-A of the Mississippi

Constitution, which empowers IHL with the management and control of Mississippi's eight universities. It

argues that these two provisions must be read so the statute does not conflict with the constitutional

provision, or in the alternative that the statute is unconstitutional.
¶22. As stated, Article 8, § 213-A of the Mississippi Constitution gives the management and control of this

State's eight universities to the IHL.(3) Mississippi Code Annotated § 37-102-3 sets up the SBCJC as an

authorizing body over the IHL whenever the IHL may decide to set up off-campus programs offering

freshman and sophomore courses. The question we consider today is whether the actions of the IHL in

planning to offer such courses at USM-GP are in violation of the law. This question turns on the reading of

these two provisions.

¶23. The general principle followed when considering a possible conflict between the constitution and a

statute is that the constitutional provision prevails. See Saxon v. Harvey, 223 So. 2d 620, 624 (Miss.

1969) ("The wisdom of the drafters of our Constitution is not subject to question by this Court, and is to be

modified or altered by amendment only.") It must be noted that the constitutional provision prevails if there

is an irreconcilable conflict, otherwise a certain deference is afforded statutes. Attorney General v.

Interest of B.C.M., 744 So.2d 299, 301 (Miss. 1999). We can not assume that the Legislature intended

to violate the Constitution by passing § 37-102-3. "On the contrary, the presumption is that that body

intended to comply with the organic law, and the statute should be given a reasonable interpretation which is

consistent with that presumed intent and which would permit the upholding of the act.' Berry v. Southern

Pine Elec. Power Ass'n, 76 So.2d 212, 267 (Miss. 1954) (quoting Willmut Gas & Oil Co. v.

Covington County, 71 So.2d 184, 189 (1954)). "'When one construction of a statute would endanger its

constitutionality, it will be construed in harmony with the Constitution if, under the language of the statute,

this may reasonably be done.'" Jackson v. State, 337 So.2d 1242, 1251 (Miss. 1976)(verdict form

discussed within superseded by statute) (quoting State v. County Sch. Bd., 181 Miss. 818, 181 So. 313

(1938)). As this Court recently summarized:

Deference must be given to statutes and the presumption of constitutionality that must accompany

them. See State v. Jones, 726 So.2d 572, 573 (Miss.1998). To be successfully challenged, the

legislation must be shown to be in "palpable conflict with some plain provision of the constitution."

State v. Mississippi Ass'n of Supervisors, Inc., 699 So.2d at 1223 (citing In the Interest of

T.L.C., 566 So.2d 691, 696 (Miss.1990)). Any legitimate interpretation that creates a reasonable

doubt of unconstitutionality may prevent the court from striking the statute. See id. (quoting Wells v.

Panola County Bd. of Educ., 645 So.2d 883, 888 (Miss.1994)).

Interest of B.C.M., 744 So.2d at 301. It is under this deferential standard that we examine § 37-102-3.

¶24. The situation created by § 37-102-3 is to set up the SBCJC as the decision maker when it comes to

determining what courses the IHL may select as part of a university off-campus location's curriculum. In

Gully v. Lincoln County,184 Miss. 784, 185 So. 795 (1939), this Court considered a trial court's

dismissal of a state tax collector's action to collect commissions. While not particularly on point with this

situation, the Court did review a point that is applicable to the case at bar. This discussion considered

whether the state tax collector could collect such commission when the sheriff, the county tax collector, had

collected the taxes. The Court initially stated that prior decisions had found an "implied requirement in

Section 135, Constitution 1890, that ad valorem state and county taxes shall be collected by the sheriff." Id.

at 796. The Court reasoned that "[s]ince this primary duty is one implied in the Constitution itself, no statute

can make it a primary duty of some other officer." Id. The Court further stated:

For if any such intervention were previously allowed, the duty of the sheriff as a primary constitutional

duty would be subverted into one which is inferior or subordinate to that of the intervening statutory
officer. It would be, indeed, to permit a statutory officer to exercise a superior authority of censorship

over a constitutional officer in respect to the constitutional duties of the latter, and in a measure to

displace him if, in the judgment of the statutory officer, the constitutional officer was not proceeding

with the discharge of his duties as diligently as the statutory officer deemed proper or requisite.

Id.

¶25. The same situation exists in the case at bar. Section 37-102-3, in effect, gives a statutorily created

entity, the SBCJC, dominion over a constitutionally created body, the IHL. While we recognize that the

legislature possesses the power to take away by statute what has been given by statute, the same can not

be said for that created by the Constitution. To allow this would be an affront to our Constitution.

¶26. Section 37-102-3, as it reads, infringes on the constitutionally vested managerial powers of the Board

of Trustees and is therefore unconstitutional. It effectively places the Board of Trustees in a subordinate

position to the SBCJC in the management and control of the universities under its care. According to the

statute, the SBCJC, and not the Board of Trustees, ultimately determines if a state college or university can

offer lower level undergraduate courses at an off-campus site. Thus, statute removes a constitutionally

authorized managerial power belonging to the Board of Trustees and gives it to the SBCJC. The resulting

conflict between the powers of the Board of Trustees and the SBCJC is irreconcilable. As a result, the

statute cannot withstand constitutional scrutiny.

¶27. The SBCJC cannot be set up as a body with veto power over the IHL's constitutionally-mandated

power to manage and control the State's universities. As this is the effect of § 37-102-3, we find it to be

unconstitutional under Article 8, § 213-A of the Mississippi Constitution.

(3) WHETHER IHL'S DESIGNATION OF USM-GP AS A DUAL CAMPUS VIOLATES

FEDERAL CIVIL RIGHTS LAWS?

¶28. Finally, IHL argues that its actions do not violate federal civil rights laws. As we found under Issue

One that the non-SBCJC plaintiffs did not have standing to pursue a claim against the IHL, this issue is

moot.

CONCLUSION

¶29. First, § 7-5-1, which requires consent of the Attorney General prior to a suit between state agencies,

acts as a bar to this suit. Second, we find § 37-102-3 to be unconstitutional. Third, as the non-SBCJC

plaintiffs do not have standing to pursue a claim, their federal civil rights claims are moot. Thus, we reverse

the trial court's preliminary injunction and its denial of IHL's motion to dismiss, and we render a judgment in

favor of IHL dismissing the complaint and this action with prejudice.

¶30. REVERSED AND RENDERED.

PITTMAN, C.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. DIAZ, J.,

CONCURS IN PART. McRAE, P.J., CONCURS WITH SEPARATE WRITTEN

OPINION JOINED BY DIAZ, J. EASLEY, J., DISSENTS WITHOUT SEPARATE

WRITTEN OPINION.

McRAE, PRESIDING JUSTICE, CONCURRING:
¶31. I concur in reversing the trial court's denial of dismissal and rendering a judgment for the Board of

Trustees of State Institutions of Higher Learning. The Board of Trustees of State Institutions of Higher

Learning determines what constitutes a university's campus and who has total control over a campus. It

defies logic that a four-year college or university is not located on the Gulf-Coast where a large portion of

Mississippi's citizens live. To have one on the Coast would allow the community colleges to feed their

students into it. In the years since the University of Southern Mississippi came into existence, it has been

determined that the university is composed of campuses in various parts of the state. Each campus is not a

separate entity unto itself. The Board of Trustees of State Institutions of Higher Learning has management

rights over the state's eight universities. However, Miss. Code Ann. § 37-102-3, as it reads, gives SBCJC

power over the Board of Trustees of State Institutions of Higher Learning in determining whether a

university may offer lower under-graduate level classes at a secondary campus. Therefore, this statute is

diametrically in conflict with Article 8, § 213-A of the Mississippi Constitution, and I agree that it is

unconstitutional in so far as it attempts to grant SBCJC the authority of the Board of Trustees of State

Institutions of Higher Learning. The Board of Trustees of State Institutions of Higher Learning, not having

defined the University of Southern Mississippi's boundaries, is constitutionally free to put campuses

wherever it chooses and to offer whatever classes it desires on any campus. Thus, if the Board desires a

four-year curriculum on the Gulf Coast campus, it is free to institute one.

¶32. I disagree with my colleagues in saying that § 7-5-1 precludes SBCJC from bringing a lawsuit, and I

believe that the majority makes a wrong turn in construing the statute as giving the Attorney General the

exclusive power to determine whether they are entitled to bring a lawsuit. Our courts are open to all entities

and persons. See Miss. Const. art. 3,§ 24. The majority misreads Frazier v. State, 504 So.2d 675 (Miss.

1987), and its progeny which construe the statute to say that while the Attorney General can refuse to allow

a public entity the right to file a lawsuit, if the matter is of great concern to the state government, then the

agency is entitled to have a court determine whether it should have its day in court. If the Attorney General

will not represent it in the lawsuit, it should be allowed to retain outside counsel with the court's consent.

Frazier, 504 So.2d at 691. Not only is this stated in Frazier, this interpretation can be found in pre and

post Frazier cases as well. See Dye v. State ex rel. Hale, 507 So.2d 332 (Miss. 1987); Grenada Mun.

Separate Sch. Dist. v. Jesco, Inc., 449 So.2d 226 (Miss. 1984); Alexander v. State ex rel. Allain,

441 So.2d 1329 (Miss. 1983). The question for the Court to determine is whether § 7-5-1 precludes one

governmental entity from suing another governmental entity. This case should be subject to court review,

instead of the sole scrutiny of the Attorney General. In the instant case, SBCJC was within its rights to bring

suit, even without the Attorney General's authorization. Therefore, in a case such as this, when a dispute

arises between the Attorney General and an entity, the court may resolve it. It is for the court to make the

determination as to whether SBCJC was properly before it and whether its case should proceed to trial.

¶33. I further part ways with the majority by saying that although SBCJC's extensive list of individuals

participating in the suit amounts to a blatant attempt to circumvent the dictates of § 7-5-1, this is not the

issue before us. The issue is whether private citizens can take part in a lawsuit and proceed to question the

constitutionality and functions of a public entity. We have been very liberal in this regard and we should

continue to do so. Private citizens should not be precluded from asking questions when they feel some law

is unconstitutional or some public entity is violating the law. See Smith v. Dorsey, 599 So.2d 529 (Miss.

1992); Canton Farm Equip., Inc. v. Richardson, 501 So.2d 1098, 1106-1107 (Miss.1987). It was

observed in Van Slyke I that: Citizens should have the authority to challenge the constitutionality of and/or

review a governmental action. If individuals do not have such authority, how else may constitutional conflicts
be raised? An individual's motive matters not in determining whether they are allowed to question a public

entity's action. The Mississippi Constitution contains no language restricting review to actual cases and

controversies. Therefore, we, as a court, are able to grant standing to parties who seek review of

governmental actions. Van Slyke I, 510 So.2d at 496. See also Dye v. State ex rel. Hale, 507 So.2d

332, 338 (Miss.1987) (State Senators had standing to sue Lieutenant Governor on charges that their

legislative power had been impinged by his actions; Attorney General did not have exclusive power to bring

suit); Canton Farm Equip., Inc. v. Richardson, 501 So.2d 1098, 1106-1107 (Miss.1987)

(unsuccessful bidder for contract with County Board of Supervisors granted taxpayer standing to sue

supervisor who did not comply with statutes in awarding bids, even though the public was not expressly

invited to join the suit).

¶34. In conclusion, I wholeheartedly agree that the Board of Trustees of State Institutions of Higher

Learning has the power to authorize dual campuses for its universities as it is not a constitutional violation for

the University of Southern Mississippi's Gulf Coast campus to offer four-year courses. The Board of

Trustees of State Institutions of Higher Learning did not violate any Mississippi law by allowing four-year

courses at the University of Southern Mississippi's Gulf Coast campus, as "campus" has not been defined to

exclude those portions of a university that are not in the same geographic area. The majority reached the

"right result," but the way it has gone about it may allow room for another suit to be filed on the merits. For

the foregoing reasons, I disagree with the rationale of the majority in its decision, but concur in its result

concerning the Board of Trustees of State Institutions of Higher Learning in allowing four-year courses at

the University of Southern Mississippi's Gulf Coast campus. To allow out-of-state colleges (Tulane

University for one) to fill a void and not have a four-year state institution of our own is ludicrous.

DIAZ, J., JOINS THIS OPINION.

1. The commission shall have the authority to do the following:

(a) Make investigations, as provided in Section 25-4-21, with respect to statements of economic

interest filed pursuant to this chapter and with respect to alleged failures to file any statement of

economic interest as required pursuant to this chapter;

(b) Request the assistance of the Attorney General, the Performance Evaluation and Expenditure

Review Committee, the Department of Audit and any other governmental agency or political

subdivision in the conduct of any investigation in which a particular resource of an agency may be

needed;

(c) Administer oaths and issue and serve subpoenas upon any witness or for the production of

documents before the commission, and such subpoenas may include a protective order requiring

confidentiality of the subpoena, the subject matter, and any documents subpoenaed, and such

subpoenas shall be enforced by the courts of this state;

(d) Report, as provided in Section 25-4-21(e), to the Attorney General and appropriate district

attorney;

(e) Upon a complaint signed under oath by any person, including any member of the commission or its

staff, investigate, as provided in Section 25-4-21, any alleged violation of law by public officials or

public employees;

(f) Seek, in the name of and for the use and benefit of the State of Mississippi, or a political subdivision

thereof, restitution or other equitable or legal remedies in civil law to recover public funds or property
unlawfully taken, as well as any unjust enrichment, although not public funds, and to recover on bonds

where the state or a political subdivision thereof is the beneficiary;

(g) Employ an attorney or attorneys to:

(i) Serve as a special prosecutor to assist the Attorney General or a district attorney; and

(ii) File actions to seek restitution or other remedies to recover funds as provided in item (f) of this

section.

2. (6) The powers and duties of the State Board for Community and Junior Colleges shall be:

(a) To authorize disbursements of state appropriated funds to community and junior colleges through

orders in the minutes of the board.

(b) To make studies of the needs of the state as they relate to the mission of the community and junior

colleges.

(c) To approve new, changes to and deletions of vocational and technical programs to the various

colleges.

(d) To require community and junior colleges to supply such information as the board may request and

compile, publish and make available such reports based thereon as the board may deem advisable.

(e) To approve proposed new attendance centers (campus locations) as the local boards of trustees

should determine to be in the best interest of the district. Provided, however, that no new

community/junior college branch campus shall be approved without an authorizing act of the

Legislature.

(f) To serve as the state approving agency for federal funds for proposed contracts to borrow money

for the purpose of acquiring land, erecting, repairing, etc. dormitories, dwellings or apartments for

students and/or faculty, such loans to be paid from revenue produced by such facilities as requested by

local boards of trustees.

(g) To approve applications from community and junior colleges for state funds for vocationaltechnical education facilities.

(h) To approve any university branch campus offering lower undergraduate level courses for credit.

(i) To appoint members to the Post-Secondary Educational Assistance Board.

(j) To appoint members to the Authority for Educational Television.

(k) To contract with other boards, commissions, governmental entities, foundations, corporations or

individuals for programs, services, grants and awards when such are needed for the operation and

development of the state public community and junior college system.

(l) To fix standards for community and junior colleges to qualify for appropriations, and qualifications

for community and junior college teachers.

(m) To have sign-off approval on the State Plan for Vocational Education which is developed in

cooperation with appropriate units of the State Department of Education.

(n) To approve or disapprove of any proposed inclusion within municipal corporate limits of stateowned buildings and grounds of any community college or junior college and to approve or

disapprove of land use development, zoning requirements, building codes and delivery of

governmental services applicable to state-owned buildings and grounds of any community college or

junior college. Any agreement by a local board of trustees of a community college or junior college to

annexation of state-owned property or other conditions described in this paragraph shall be void

unless approved by the board and by the board of supervisors of the county in which the state-owned

property is located.
3. "The state institutions of higher learning now existing in Mississippi..., and any others of like kind which

may be hereafter organized or established by the State of Mississippi, shall be under the management and

control of a board of trustees to be known as the Board of Trustees of State Institutions of Higher Learning,

the members thereof to be appointed by the Governor of the state with the advice and consent of the

Senate. . . ." Miss. Const. art. 8, § 213-A.