IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-CA-00219-SCT MELONEY

HARBOUR, AS NEXT FRIEND OF T.D.H, A MINOR

v. TUPELO PUBLIC SCHOOL DISTRICT AND JIM HOOD, EX REL. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 11/21/2017 TRIAL JUDGE: HON. T. K. MOFFETT TRIAL COURT ATTORNEYS: JULIAN D. MILLER OTIS R. TIMS COURT FROM W HICH APPEALED: LEE COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: JULIAN D. MILLER DEBRA M. GILES ATTORNEYS FOR APPELLEES: OTIS R. TIMS MARTHA BOST STEGALL OFFICE OF THE ATTORNEY GENERAL BY: DOUGLAS T. MIRACLE NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 06/13/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE KITCHENS, P.J., MAX W ELL AND CHAMBERLIN, JJ. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. Following a disciplinary proceeding, M elon e y H a r b o u r ’s m inor son, T.D.H., 1 was suspended f

rom school and placed in an a l ternative school. The chancery court initially reversed and rendered the decision of the Tupelo P ublic S chool District Board of Trustees

1 We ref er to th e m in o r

stu d en t as “T .D .H .” to p reserv e h i s an o n y m ity

.af

ter f inding that the deprivation of an attorney at the initial d isciplinary hearing, as well as
t h e f ailure t o state the applicable standard of proof , violated T.D.H.’s due process ri g h t s . Af ter a Mississippi Rule of Civil Procedure 5 9(a) m otion, the chancery court am ended its judgm ent to rem and the case instead of rendering it. ¶2. Harbour then f

iled a Mississippi Rule of Civil Procedure 60(b) m o tion and—f or the fi r s t tim e—challenged the constitutionality of Mississippi Code S ection 3 7

- 9

- 7 1

. S e c t i o n 3 7

- 9-71 controls school d i sciplinary proceedings and, according to Har bour, contains an unconstitutional standard of proof —substantial evidence—rather than clear and convincing evidence. Miss. Code Ann. § 37-9-71 (Supp. 2 0 1 8). Harbour d id not n otice the attorney general o f the c onstitutional challenge t o the statute. Finding that Harbour f ailed to m eet her burden under Rule 6 0(b), the chancery court d enied t he m otion. Harbour then appealed that ruling. W e af

f irm the chancery

court’s denial of

the Rule 60(b) m o tion. FACTS AND PROCEDURAL HISTORY ¶3. On March 30, 2017, a schoolteacher f iled a discipline ref

erral stating that T.D.H., a

m inor enrolled a t Tupelo Middle School in the Tupelo Public School District, was reported passing a s ubstance alleged to be m arijuana to a f ellow student. Six day s later, the school’s dis c i p l i nary com m i ttee held a hearing to review the r ef erral and to review the school’s

recom m endation f

o r disciplinary action. Ha r b o u r , T

. D.H.’s m other, was present at the hearing on behalf of T.D.H. T.D.H.’s attorney was n ot allowed at the hearing un der the school d istrict’s policy

. The co mmi t tee r eviewed t he students’ statem e n ts and heard testim o ny f

rom T.D.H., Talina Knight, an assistant p rinci p a l , a n d Dr. Brock E nglish, a

2principal. The com m i ttee reviewed t he evidence, which it f ound “support[ ed] the initial

c h a r ge of possession and passing of m arijuana.” The com m ittee then upheld the s c h o o l ’ s

recom m endation to place T.D.H. in an alternative school at the “Structured Day Program ” f or 180 day s . ¶4. H a rbour appealed the com m i ttee’s decision to the Tupelo Public Sc h o o l D i s t r i c t Superintendent, who upheld the com m ittee’s decision. H a r b o u r then appealed the superintendent’s decision to the T upelo Public School D istrict’s Board of Truste e s , w hich also upheld the com m ittee’s d ecision. Harbour and h e r a ttorney viewed the video of the incident on that sam e day

. ¶5. On June 12, 2017, H a r b o u r a p p ealed the school board’s decision to t he Chancery Court of Lee C ounty to determ ine “whether the

. . . District

. . . violated its handbook’s code of conduct and policies and procedures as well as T.D.H.’s d ue process rights.” Harbour also requested t

h a t t h e c o urt declare that the school district provide rem edial i nstruction to T.D.H.,
expunge T.D.H.’s suspension a nd recom m e ndation f rom his record, require t he school district t o provide m ake-up testing to T.D.H. and provide i njunctive relief a l lowing T.D.H. to return to his regular school setting. ¶6. The chancery court entered its f irst Mem orandum

Order on Septem

ber 26, 2017. It held that the school district’s f ailure to allow T .D.H. to have counsel present at the hearing and t he school district’s f ailure t o state the standard o f p roof violated T.D.H.’s due process rights. Also, i t f

ound t hat T.D.H. was substantially prejudiced by these violations. The court

revers e d a n d r e n d e r e d t

h e d e c i s i on, ordering T.D.H.’s i m m ediate reinstatem ent to his original

3school and o rdering the school district to “ r ewrite their d ue process policies to com ply with Miss. Code Ann. § 37-9-71.” ¶7. Next, the s chool district f iled a R u l e 5 9 M o t ion to A lter or Am end J udgm ent. The chancery court entered an order deny ing the Rule 59 m otion in part and granting it in part. The c ourt reaf

f irm ed its decision t hat the school district violated T.D.H.’s due process rights by not allowing T.D.H. to have counsel present at the hearing and f o r f ailing to state a burden of proof

. Doing so, it f

ound “an error of law to be corrected, a nd

. . . rem and[ ed] the m erits of this cause” to t he school district with instructions to conduct a new com m ittee hearing in

com pliance with Mississippi Code Section 37-9-71(Supp. 2018). The court additionally lef t in place the injunctive relief allowing T.D.H. to rem ain in school “on a tem porary basis, as

a prelim i n a r y i n

j u nction only , which is to say until t he hearing and a ll available adm inistrative procedures have been exhausted.” ¶8. Af ter the court e ntered its o r d e r o n t h e R u le 59 m o tion, Harbour f iled a Motion to Reconsider u nder Mississippi Rule of Civil Procedure 60(b). She sought t o stay rem and, to receive a tem

porary restraining o rder to stay a new disciplinary hearing a nd t o r e c e i v e a declaratory j udgm ent as to the standard of proof under Section 37-9-71. In support of the Rule 60(b) m otion, Harbour argued f o r the f irst tim e that the evide n t i a r y s t andard f or disciplinary proceedings in Mississippi Code S ection 37-9-71—substantial evidence—was “constitutionally insuf

f icient to undergird such d ecisions in that the M ississippi Suprem e Court h a s h e l d e ducation to b e a ‘f u ndam ental right.’” H arbour argued that the

c o n s t itutionally perm issible standard of p roof should be “ clear a nd c onvincing evidence ”

4instead. Moreover, Harbour argued that s ubstantial evidence is in f act an appellate standard of r eview rather than an evidentiary standard of proof

. Finally , Harbour argued that T.D.H. would suf f er irreparable harm by “being s ubjected to an unnecessary hearing and

. . . being deprived of his f

undam ental right to an e d ucation by application o f an unconstitutional standard of proof

. ” At this stage in the litigation, Harbour did not notice the attorney general of the constitutional challenge. ¶9. On January

12, 2018, the chancery

court denied the Rule 60(b) m otion, f inding that Harbour did not m eet h er burden under Rule 60(b) a n d f u r t her t hat Harbour had f ailed to establish grounds to stay rem and a nd f or t he Court to i ssue a d eclaratory judgm ent regarding the constitutional adequacy of Sectio n 3 7 -9-71’s m andate of s ubstantial e vidence as a

s t a ndard of proof

. Aggrieved, Harbour f

iled a notice of appeal, arguing that the c h a n c e r y
court erred i n deny ing the Rule 6 0 (b) m otion. In the notice of appeal, Harbour n otif ied the attorney general of the constitutional challenge to Section 37-9-71. ¶10. On appeal, Harbour brief s three issues. First, Harbour m aintains t h a t t h e chancery
court erred in deny i ng the Rule 60(b) m otion. S e c o nd, Harbour alleges that the chancery
court correctly determ ined that T.D.H.’s constitutional and statutory due process rights were violated. Third, Harbour argues that t he chancery court erred in determ ining that s u bstantial evidence existed a gainst T.D.H. Harbour’s c onstitutional challenge, though, is n ot properly bef ore the Court, and this issue is dispositive of the appeal. STANDARD OF REVIEW ¶11. “Our precedents m ake c l e a r t h a t the standard of review f or an appeal of a Rule 60

5m otion is abuse of d iscretion.” Tyler v. Auto. Fin. Co. , 113 So. 3d 1236, 1239 ( Miss. 2013)

(citing Accredited Sur. and Cas. Co., Inc. v . B olles , 535 So. 2d 56, 58 (Miss. 1988)). Moreover, “where q

uestions of law are raised the applicable standard of review is de novo .”
Brown v . State , 731 So. 2d 595, 598 (Miss. 1998) (citing Bank of Miss. v. S. Mem ’l Park,
Inc. , 677 So. 2d 186, 191 (Miss. 1996)). ANALYSIS Final Judgment ¶12. At the outset, we addr e s s t h e a t t orney general’s argum ent that the chancery court’s denial o f the R

ule 6 0 ( b ) o r d e r w as not a f inal, a ppealable judgm ent. The a ttorney general relies o n Tucker v. W

illiam s , 1 98 So. 3d 2 99 (Miss. 2016), and concludes that the chancery court’s rem and of

the action to the com m ittee am ounted to an interlocutory order. ¶13. The Tucker C ourt stated, “This argum ent turns on whether the d enial of the m otion f or reconsideration w as a f inal judgm e n t f

rom which an appeal could have been taken.” Tucker , 198 So. 3d at 306. In Tucker , the Court concluded that the d enial of the m otion f or reconsiderati o n w a s not a f inal judgm ent because “[ a] clerk’s entry of def ault is an ‘interlocutory step that is taken under Rule 55(a) in anticipation o f a f i n a l j u dgm ent by def ault u nder Rule 55(b).’” Id. a t 307 (quoting 10A Charles Alan W r ight & Arthur R. Miller
et al., Federal Practice and Procedure § 2692 (3d ed.), W estlaw ( d a t a b ase u pdated Apr. 2019)). ¶14. Here, the case c am e bef ore the chancery court on a “Notice of Appeal and Motion f or Injunctive Relief

,” in which H arbour was a

ppealing the decision of the com m ittee. In its f irst

6order, the chancery court f ound that barring T.D.H.’s attorney ’s appear a n c e a t a hearing

am ounted to “ substantial prej u d i c e , ” a nd it r eversed a nd rendered the decision of the

com m ittee, w hich would have placed T.D.H. back in his regular school perm anently

. The school district t hen f

iled a “Rule 59 Motion to Alter o r Am end Judgm en t

. ” T h e chancery
court then issued a n order partially deny ing and granting the R ule 5 9 m otion; it reversed and remanded to the com m ittee f o r a hearing that provides T.D.H. hi s d u e p r o c ess rights. Further, the court lef

t in place the injunctive r elief , holding that T.D.H. was to rem ain in his regular school until “the hearing and all availabl e a d ministrative procedures have been exhausted.” In response, Harbour f iled a m otion to recons i d er. Apply ing Rule 60(b), the chancery court denied Harbour’s m otion. ¶15. In Tucker , the f

irst order was interlocutory

. Tucker , 198 So. 3d at 307. Theref ore, the order f

ollowing the Rule 60(b) m otion w as also interlocutory

. Id. Here, the q uestion is whether t he chancery court’s f i rst order was i nterlocutory

. In the original order, t he chancery

cou r t r u l e d on the m erits, determ ining that the f inding of the com m ittee was supported by substantial evidence, but it then r eversed and rendered as a res u l t o f T.D.H.’s d ue process entitlem ent to an attorney at the hearing. ¶16. In a concurring opinion, th e n - P r e s i d i n g Judge Southwick of the Court o f Appeals concluded, “A decision by the f irst level appellate court t hat the agency was def initely wrong in one of its f

inal d ecisions, e ven if the court rem ands f or t h e a gency to conduct f urther proceedings based on that reversal, is a f inal judgm e nt that is appealable.” J.R. Logging v. Halford , 765 So. 2d 580, 589 (Miss. Ct. App. 2 000) (Southwi c k , P

. J., concurring). The

7Court later reviewed then-Presiding Judge Southwick’s concurring opinion, a n d s tated, “W e

agree with this interpretation.” Southwood Door Co. v. Burton , 847 So. 2d 833, 838 (Miss. 2003). In Burton , the Court determ ined that the c i r c u it court’s order reversing and

rem anding to the adm inistrative agency was f inal i n nat u r e , b ecause the r eversal was procedural a nd because it was not based on an insuf f icient record to consider the m erits. Id. ¶17. Here, the chancery court’s order disposed of t he m erits, reversing and rendering (later

rem anding) the case on the d ue process issue. The instant case is analogous to Burton

. The

c h a n c e r y c o u r t h a d enough i nf orm ation to m ake a f

inding on the m erits. The r em and wa s based on a procedural due p rocess issue. Theref ore, the o r d e r w a s f

i nal a n d was properly appealed by

Harbour. Rule 60( b) ¶18. Next, the attorney general contends that Harbour waived the constitutional challenge
to Section 37-9-71 by not r aising it until she f iled the Rule 60(b) m otion. W e f i nd that the chancery court did not err i n deny ing the m otion, because Harbour’s challenge is not properly bef ore us. 2 ¶19. R u l e 6 0 ( b ) p r o v ides, “On m otion and upon such term s as are just, the cour t ma y relieve a party or h is legal r epresentative f rom a f inal judgm ent, order, or proceeding f or the f ollowing reasons: .

. . accident or m istake

. . . .” M.R.C.P. 60(b)(2). The Court has stated,
“A party is not entitled to relief m erely because he is unhappy with the judgm ent, but he m ust

2 T h e atto rn ey g e n eral m o v ed t o d i sm iss H arb o u r’s co n stitu tio n a l ch allen g e on May 30, 2018. S in c e th e ch an cery co u rt d id n o t err in d en y in g th e R u le 6 0 (b ) m o tio n a n d b ecau se w e f in d th at th e co n stitu tio n al c h allen g e i s n o t p ro p e r ly b e f o r e u s, th e atto rn ey g en eral’s m o tio n is d ism issed as m o o t. 8m ake som e showing t hat he was justif ied in f ailing to avoid m istake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough.” M oore v. Jacobs , 752 So. 2d 1013, 1015 (Miss. 1999) (quoting Stringfellow v. S tringfellow , 4 51 So. 2d 219, 221 (Miss. 1984)). ¶20. Harbour asserts that h e r argum ent about whether the substan t i a l e vidence standard violates the constitution i s properly bef ore the Court. Specif

ically , H arbour argues that the chancery court’s “f

ailure to address the issue of a constitutionally perm issibl e s t andard of proof was either accident, error, o r —if not—then certainly a reason justif y ing relief f

rom judgm ent.” ¶21. B a sed on the a rgum ents and brief ing of the parties, when t he chancery c o urt issue d i t s o riginal order, it addressed the m erits of the claim , f inding that the decision o f t h e

com m ittee was supported by s ubstantial evidence. It then turned to t h e due process issue, determ ining that Section 37-9-71 applied retroactively and requ i r e d t h a t T.D.H. have the assistance of legal c ounsel at the com m ittee hearing. The chancery court went on to f ind that the school board’s actions “in disallowing [ T.D

. H

. ’ s ] a t t o rney f rom b eing p resent at the hearing am ount[ ed] to substantial prejudice.” It then reversed and rendered. ¶22. Harbour did not t hen f ile a Rule 60(b) m o tion arguing t h a t t h e chancery court had accidently or m istakenly f orgotten to m ake a ruling o n whether the s ubstantial evidence standard is constitutional under Section 37-9-71. In f act, the chancery court addressed the due process issue under Se c t i o n 3 7 -9-71, a s Harbour had urged. Af ter the school district f iled its m otion f

or reconsideration, the chancery court issued a second order, a nd the only

9substantive change to the order was that it reversed and rem a n ded instead of reversing and

rendering. Notably , t he chancery court s till f ound that a due p rocess violation h ad occurred under Section 37-9-71. Af ter the s econd order was entered, Harbour raised f or the f irst t im e the question of the c onstitutionality of S ection 37-9-71 in her Rule 60(b) m otion. Further,

at oral argum ent bef

ore the f irst order was entered, the chancery c ourt asked Harbour’s attorney w hether the case should be rem anded or rendered, and H a r b o u r ’ s attorney r esponded
“I would pref

e r a reverse and render to allow [ T .D.H.] back in school.” He then added, “W e alleged a violation of t he statute of law and so t hat requires a rendering of the entire decision because they

violated his statutory

rights.” ¶23. As stated above, “‘A party is not entitled t o relief m erely because he is u nhappy with the judgm ent

. . . .’” Moore , 7 52 So. 2d at 1015 (quoting Stringfellow , 451 So. 2d at 221). Further, t he Court has stated that it “will not ente r t a i n on appeal a new t heory of unconstitutionality which could have been r aised, but was not advanced, bef ore the trial court until a post-judgm ent m otion.” Wright v. W hite , 693 So. 2d 8 98, 903 (Miss. 1997), overruled on other grounds by E. Miss. State Hosp. v. Callens , 892 So. 2d 800 (Miss. 2004);

see Powers v. Tiebauer , 939 S o. 2d 749, 755 (Miss. 2005) (holding that litigant was procedurally

barred f rom raising constitutional challenge f or the f irst tim e on appeal). ¶24. In a ddition, Harbour did not notice the attorney g eneral of the constitutional challenge in a tim ely m an n e r . R u le 24(d) provides in pertinent part that “the party a s serting the unconstitutionality of the s tatute shall notif y the A ttorney General of the S tate of Mississippi within such tim e as to af f ord him an opportunity to intervene and argue t h e q u e s t i o n of

1 0constitutionality .” M.R.C.P. 24(d). “This Court has procedurally barred challenges to the

constitutionality of a statute where a party f ailed to notif

y the Attorney General.” Martin v. Lowery , 912 So. 2 d 4 61, 465 (Miss. 2005) (citing Cockrell v . Pearl R iver V

alley Water Supply Dist. , 865 So. 2d 3 57, 360 ( Miss. 2004)). W hile Harbour noticed t he a ttorney general in the notice of appeal, this was untim ely and certainly not “within s uch tim e as t o af f ord [ the attorney general] an opportunity to i n t e rvene and argue the question of constitutionality .” M.R.C.P. 24(d); see McNeil v. Hester , 753 So. 2d 1 057, 1075 (Miss. 2000) (“This Court has held that the f

i l ing of a notice of a

ppeal transf

ers jurisdiction of a m atter f rom the lower court
to this Court [ ] a nd that the lower court is t hus without authority to am e nd, m odif y , or reconsider its judgm ent.” (citing Wright , 693 So. 2d at 903)). ¶25. The chancery court did not m istakenly o r a c c i d e n t l y o mi t a n a n a l y s i s o f t he constitutional issue. The issue, sim ply , was not properly bef ore the c h a n c e r y court f or review, since H arbour raised it f or the f irst tim e i n the Rule 60(b) m otion. Theref ore, the chancery court d id not err in deny ing t he Rule 60(b) m otion, a n d we will n o t a d d r e s s a constitutional challenge that is not properly bef ore us. Substantial Evidence ¶26. W e decline t o review t he c hancery court’s determ i nation that there wa s s u b s t antial evidence i n the r ecord against T .D.H., because t he issue is not properly be f o r e u s . While Harbour did provide that s he was appealing “other grounds that ma y b e presented to the Mississippi Suprem e Court u pon a ppeal,” she lim ited the n otice of appeal to a review of one order: the order d e ny ing the R ule 60(b) m otion. Thus, Harbour d id not appeal the m erits of

1 1the case, and we decline to review them

. See M.R.A.P. 3(c) (“The notice of appeal

. . . shall

designate as a whole or in part the judgm ent or order appealed f rom . ” )

. CONCLUSION ¶27. The chancery cour t ’ s d e n i a l o f t h e R u l e 6 0 ( b ) mo t i on was a f inal, appealable judgm ent. Neither Harbour’s constitutional c hallenge nor the review of the chancery court’s determ ination on t he m erits of the appeal is properly b ef ore u s. Because the chancery court did not err in deny in g t h e R ule 60(b) m o tion, we af f irm and rem and t o the chancery court with instructions f

or that court to rem and the case to the com m ittee f or a new hearing. 3 ¶28. AFFIRMED. KITCHENS AND K

I N G , P . J J . , C O L E MAN, MAX WELL, BEAM, ISHEE AND GRIFFIS, JJ., CON C U R . RANDOLPH, C.J., C ONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

3 T h e atto r

n ey g en eral’s m o tio n to d i smi s s H arb o u r’s co n stitu tio n al ch allen g e is d ism issed as m o o t. 1 2