The opinion
Case: 22-60457 Document: 00516856733 Page: 1 Date Filed: 08/14/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
August 14, 2023
No. 22-60457 Lyle W. Cayce
____________ Clerk
Pieter Teeuwissen; Anthony R. Simon; Simon &
Teeuwissen, P.L.L.C.,
Plaintiffs—Appellants,
versus
Hinds County, Mississippi, by and through its Board of Supervisors;
David Archie, individually and in his official capacity; Credell
Calhoun, individually and in his official capacity; Robert Graham,
individually and in his official capacity; John Does I-V, each individually
and in his official capacity; Mississippi Association of
Supervisors Insurance Trust,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:22-CV-9
______________________________
Before Smith, Higginson, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
Mississippi common law generally forbids local-government officers
from using contracts to bind their successors-in-office. As a result, newly
elected officers typically have unilateral authority to void any contracts that
they find in effect upon taking office. But the Mississippi Supreme Court also
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recognizes an exception to the general rule. If the prior officers had “express
statutory authority” to bind their successors, then the successors must honor
any contracts that their predecessors agreed to using that authority.
A Mississippi statute empowers boards of supervisors to contract “by
the year” for legal counsel. The Hinds County Board of Supervisors hired
Pieter Teeuwissen and his law firm to perform legal work for the County.
Teeuwissen’s contracts with the County were each for a one-year term. But
before the year was up, an election flipped the board’s composition, and the
new board terminated both contracts. Teeuwissen sued, arguing that the con-
tracts required the County to pay him a fixed sum for the full year—even if
the County no longer wanted his legal services. The district court granted the
County’s motion to dismiss, reasoning that no statute expressly authorized
the old board to bind the new one. On appeal, Teeuwissen argues that the
statutory phrase “by the year” gave the old board “express authority” to
bind the new board. We agree, and we therefore REVERSE and REMAND
for further proceedings.
I
Pieter Teeuwissen and Anthony R. Simon are members of the law firm
Simon & Teeuwissen (together, “Teeuwissen”). The Board of Supervisors
for Hinds County, Mississippi entered into two “employment contracts”
with Teeuwissen in the fall of 2019. The first contract named Pieter
Teeuwissen as the Board Attorney for the Board of Supervisors, while the
second designated the law firm as Special Counsel for the County. Each
contract began on October 1 and terminated one year later. And each contract
contained a clause requiring the County to pay Teeuwissen for a full year’s
worth of work even if the board terminated the contract early. All told, these
contracts were worth about $250,000 per year, to be paid in installments.
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About three months into the contracts’ one-year term, an election
occurred, and a new board took office. A majority of the new board members
voted to terminate the contracts. Despite the early-termination clauses, and
even though the contracts had about nine months remaining, the County
stopped paying Teeuwissen.
Teeuwissen sued Hinds County and the individual board members
who voted for termination (together, “the County”). He argued that the
early termination and stalled payments “deprived [him] of [his] property
interest, in violation of the Fifth and Fourteenth Amendments to the
Constitution . . . and 42 U.S.C. § 1983.” He also asserted several state-law
theories. He asked the district court for damages, and for related injunctive
and declaratory relief against the County.
The County moved to dismiss, arguing that the new board had
unilateral authority to terminate the contracts and to ignore the early-
termination clauses. The County’s argument relied on a Mississippi
common-law rule that prohibits members of a local government from using
contracts to bind their successors-in-office. The County acknowledged that
this rule yields when a statute expressly authorizes members of a local
government to bind their successors. Even so, the County argued that no
statute expressly authorized the old board to bind the new board to the
contracts with Teeuwissen. Citing Mississippi Code § 19-3-47, Teeuwissen
responded that the legislature has expressly authorized the board to hire local
counsel “by the year.” According to Teeuwissen, this language allowed the
old board to bind the new board, and therefore required the new board to pay
the early-termination fee that the contracts called for.
The district court granted the County’s motion to dismiss. It held that
the contracts were voidable because Section 19-3-47 “authorizes the Board
to contract for one-year terms, but it does not explicitly authorize them to
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bind successors.” Since the contracts were voidable, the district court held
that Teeuwissen had “failed to state a protected property interest,” and it
rejected his federal causes of action. The court also declined to exercise
supplemental jurisdiction over the state-law claims. Teeuwissen timely
appealed.
II
The district court had jurisdiction under 28 U.S.C. § 1331. We have
appellate jurisdiction under 28 U.S.C. § 1291. We review the grant of a
12(b)(6) motion to dismiss de novo, “accepting all well-pleaded facts as true
and viewing those facts in the light most favorable to the plaintiffs.” 1
III
“The first inquiry in every due process challenge . . . is whether the
plaintiff has been deprived of a protected interest in property or liberty.” 2
“To have a property interest in a benefit, a person clearly must . . . have a
legitimate claim of entitlement to it.” 3 “Such entitlements are ‘not created
by the Constitution. Rather, they are created and their dimensions are
defined by existing rules or understandings that stem from an independent
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1
Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018) (internal quotation marks
and citation omitted).
2
McClelland v. Katy Indep. Sch. Dist., 63 F.4th 996, 1014 (5th Cir. 2023) (internal
quotation marks and citation omitted).
3
Edionwe v. Bailey, 860 F.3d 287, 292 (5th Cir. 2017) (quoting Bd. of Regents v. Roth,
408 U.S. 564, 576 (1972)).
4
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source such as state law.’” 4 “A ‘benefit is not a protected entitlement if
government officials may grant or deny it in their discretion.’” 5
Here, the parties agree that Mississippi law supplies the standards that
we must use to determine whether Teeuwissen’s contracts were a
discretionary benefit versus a protected entitlement. Mississippi’s common
law holds that members of a local government “may not bind their successors
in office by contract, unless expressly authorized by law.” 6 Under Section 19-
3-47 of the Mississippi Code: “[A] board of supervisors shall have the power,
in its discretion, to employ counsel by the year at an annual salary at an amount
that it deems proper . . . .” 7
The phrase “by the year” has meaning only if it allows a board to bind
successors. Otherwise, it is surplusage. And indeed, the Mississippi Supreme
Court’s leading case on this issue lists several other statutes in which a length
of time was the kind of explicit authorization that the district court said was
missing from Section 19-3-47. That case, Northeast Mental Health-Mental
Retardation Commission v. Cleveland, guides our decision here. 8 The district
court’s contrary view amounts to a test that no Mississippi statute meets.
For all those reasons, we conclude that the statutory phrase “by the
year” is an express grant of authority that allows the board of supervisors to
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4
Id. (quoting Paul v. Davis, 424 U.S. 693, 709 (1976)).
5
Harrison v. Young, 48 F.4th 331, 341 (5th Cir. 2022) (quoting Town of Castle Rock
v. Gonzales, 545 U.S. 748, 756 (2005)).
6
Ne. Mental Health-Mental Retardation Comm’n v. Cleveland, 187 So. 3d 601, 604
(Miss. 2016).
7
Miss. Code Ann. § 19-3-47 (emphasis added).
8
187 So. 3d 601 (Miss. 2016).
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bind successors-in-office. 9 Because the contract was binding, Teeuwissen
had a protected property interest in the money that the contracts’ early-
termination provisions guaranteed him under Mississippi law. 10
A
We begin with the statute’s plain text. Under Mississippi law,
“[e]very word, sentence, phrase, or clause in a statute must be given a
meaning.” 11 The phrase “by the year” has meaning only if it allows the board
to bind successors. To see why, consider what the statute would look like
without that phrase:
[A] board of supervisors shall have the power, in its discretion,
to employ counsel by the year at an annual salary at an amount
that it deems proper, not to exceed the maximum annual
amount authorized by law for payment to a member of the
board. 12
Teeuwissen argues that this three-word phrase “is the exact
authorization which does authorize the board of trustees to bind a successor
board.” Teeuwissen’s statutory interpretation gives the phrase “by the
year” independent meaning within Section 19-3-47, because deleting it
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9
See Cleveland, 187 So. 3d at 609 (“[O]rdinarily a new statute will not be
considered as reversing long-established principles of law and equity unless the legislative
intention to do so clearly appears.” (internal quotation marks omitted) (citing Thorp
Commercial Corp. v. Miss. Road Supply Co., 348 So.2d 1016, 1018 (Miss. 1977)).
10
See, e.g., Mollaghan v. Varnell, 105 So. 3d 291, 304 (Miss. 2012) (suggesting that
private individuals would suffer a “deprivation of a property right” if their “employment
contracts were . . . terminated early” or if they were less than “fully compensated under
their contracts” with a governmental entity).
11
Jones Cnty. Sch. Dist. v. Covington Cnty. Sch. Dist., 352 So. 3d 1123, 1132 (Miss.
2022) (internal quotation marks omitted).
12
Miss. Code Ann. § 19-3-47 (alterations added).
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would change that Section’s meaning (from a meaning that allows the board
to bind successors, to a meaning that doesn’t). By contrast, the County
argues that the Section gives the board “statutory authority to . . . contract”
but “does not allow that municipality to bind successors.” But if the
County’s view were correct, its interpretation would remain valid even if the
phrase “by the year” disappeared.
Teeuwissen’s interpretation is superior because it saves “by the year”
from being surplusage. If the board has authority to agree to one-year
contracts for legal services, it necessarily (if implicitly) has authority to agree
to a one-year contract at any point in time—even if that point is near an
election. Nor are elections the only events that can bring a successor board
into existence. A board member might choose to resign; or every member
might make that same choice. Seen from this vantage, a “successor” board
is (at least theoretically) standing around every corner. But no matter when a
successor board arrives, or how, Section 19-3-47 requires it to honor the
balance of any annual contracts for legal services that a predecessor board
agreed to. 13 If it were otherwise, then the phrase “by the year” would not be
doing any work—an interpretation that Mississippi law disfavors. 14
Teeuwissen’s interpretation also makes good sense. Without power
to bind successors, a board might struggle to hire counsel. Taking the
contract would be risky during an election year, when the board’s
membership might flip, but it would be risky during other years too (because
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13
We note that some secondary sources have recognized that: “Respecting the
binding effect of contracts extending beyond the terms of officers acting for the
municipality, there exists a clear distinction in the judicial decisions between governmental
and business or proprietary powers.” 10A McQuillin Mun. Corp. § 29:103 (3d ed.).
But the County does not invoke this distinction, and we therefore decline to address it.
14
See Jones, 352 So. 3d at 1132.
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members might resign at any point). And because Section 19-3-47 caps
payment at “the maximum annual amount authorized by law for payment to
a member of the board,” the County cannot compensate those concerns with
a higher salary (at least not where it needs to hire a full-time Board
Attorney). 15
The County does not address this plain-language argument, and
neither did the district court, but the only plausible alternative readings fail.
For example, it cannot be that phrase “by the year” relates solely to salary—
not to tenure. Because if that were the case, then Section 19-3-47’s separate
reference to an “annual salary” would be superfluous. 16 We also do not read
“by the year” as setting only a ceiling on the attorney’s tenure, or only a
floor. Indeed, the Mississippi Attorney General has rejected both views.
When a board hires an attorney but neglects to document the employment
term, the Attorney General has concluded that the hire is automatically “for
a one year term.” 17 This indicates that the employment contracts cannot
stretch beyond a “one” year ceiling. 18 Likewise, the Attorney General says
that boards cannot negotiate alternative fee arrangements, such as an hourly
fee basis. 19 This indicates that employment contracts have a one-year
minimum.
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15
Miss. Code. Ann. § 19-3-47.
16
Id.
17
Employment of Counsel, Miss. Att’y Gen. Op. No. 2002-0404, 2002 WL
31169204, at *1 (Miss. A.G. Aug. 9, 2002) (emphasis added).
18
Id.
19
Employment of Counsel, Miss. Att’y Gen. Op. No. 2004-0286, 2004 WL
1379968, at *1 (Miss. A.G. May 7, 2004).
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As the district court noted, Mississippi law does not treat the Attorney
General’s opinions as binding. But they are often “persuasive authority.” 20
And neither the County nor the district court identified any errors in the
Attorney General’s reasoning. Those opinions are therefore a persuasive
source of textual analysis confirming that boards of supervisors do have
express authority to bind their successors.
B
Caselaw confirms this conclusion. The Mississippi Supreme Court
has already held that lengths of time can constitute explicit statutory
authorization to bind successors.
The parties agree that Cleveland is the most closely analogous
precedent. There, a contractor built a facility on land that a regional health
commission owned. 21 In exchange, the commission agreed to lease the
building from the contractor 99 years, at $18,000 per month. 22 But later, the
commission stopped making payments and voted to void the agreement. 23
The commission sued, seeking a judgment declaring that the lease was invalid
under the common-law rule against binding successors. 24 The Mississippi
Supreme Court agreed. 25 Summarizing the line of cases that discuss “the rule
against binding successors,” it recognized that courts have used the rule “to
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20
Basil v. Browning, 175 So. 3d 1289, 1293 (Miss. 2015); see State of Fla. ex rel. Shevin
v. Exxon Corp., 526 F.2d 266, 275 (5th Cir. 1976) (treating state attorney general’s view of
state law as “persuasive”).
21
Cleveland, 187 So. 3d at 602.
22
Id. at 603.
23
Id.
24
Id.
25
Id at 604.
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void all types of agreements.” 26 Drawing on those cases, the court held that
the commissioners (who served only four-year terms) could not bind their
successors unless “expressly authorized by law.” 27 The court distinguished
between “statutory authority to lease or contract” and “statutory authority
to bind successors.” 28 Thus, even where a local government has authority to
enter contracts, that authority is not by itself sufficient to authorize the
government officials to bind their successors-in-office.
Cleveland is important foremost because it gives examples of the kinds
of “express” language that can authorize a local government to bind
successors:
[T]he Legislature expressly has authorized state institutions of
higher learning to enter into long-term leases that do not
exceed thirty-five years. Miss.Code Ann. § 37–101–41
(Rev.2014). Airport authorities may enter into leases not to
exceed fifty years. Miss.Code Ann. § 61–5–11 (Rev.2013).
Section 31–8–3 of the Mississippi Code permits counties and
municipalities to enter into lease agreements for facilities not
exceeding twenty years. Miss.Code Ann. § 31–8–3 (Rev.2010).
(See also Oktibbeha Cty. Bd. of Educ. v. Town of Sturgis, 531
So.2d 585 (Miss.1988)) (voiding a ninety-nine-year lease
because the county was granted authority only to enter into a
twenty-five-year, not a ninety-nine-year, lease). 29
All of these “express” authorizations appear as terms of years, and
none of them includes any separate, additional language authorizing the
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26
Id. at 605.
27
Id. at 604.
28
Id. at 605.
29
Id. at 608.
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entities to bind successors. 30 Rather, the legislature takes the necessary
“further steps” by “granting specific entities the power to enter into long-
term agreements that exceed their governing members’ terms.” 31
It is true that Cleveland’s examples do not map the entire territory of
express authorizations, and that the lengths of time in these examples are
different in magnitude from the one-year authorization at issue here. But
Cleveland explains that an express authorization exists whenever a statute
both (1) gives a local government the power to enter contracts, and (2)
separately specifies an approved length for the contracts. The statute at issue
in Cleveland met the first condition but failed the second. Here, by contrast,
Section 19-3-47 meets both conditions: the County can (1) “employ counsel”
(2) “by the year.” 32
The County’s response mistakenly treats these conditions as one and
the same. Statutory authority to contract may not always bring with it the
separate authority to bind successors, but the County’s argument on that
score responds only to a strawman. Teeuwissen is not arguing that the
board’s general authority to contract automatically brings with it the specific
authority that allows it to bind successors. Instead, he is arguing that the
board has authority to contract, and that the separate phrase “by the year”
allows the board to bind successors (for that year). Cleveland gives
Teeuwissen’s argument very strong support.
_____________________
30
See id.
31
Id.
32
See id.; Miss. Code Ann. § 19-3-47.
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C
We are also persuaded by the apparent fact that no Mississippi statute
would survive the district court’s stringent test for express authorization.
The district court dismissed Teeuwissen’s claims because “Mississippi
Code § 19-3-47 authorizes the Board to contract for one-year terms, but it
does not explicitly authorize them to bind successors.” 33 This reasoning
misunderstands Cleveland, at least to the extent that it calls for statutory
language that directly authorizes a local government to bind successors. There
is no “magic words” requirement. Not even Cleveland’s examples contain
the kind of language that the district court seemed to be looking for. 34
Our research has revealed no statutes that would satisfy the standard
that the district court relied on for express authorization. On the contrary,
the Mississippi statute books are rife with laws that apparently would allow
individual officers to bind their successors under Cleveland’s test but
apparently would not allow officers to bind successors under the district
court’s test. Here are a few, in addition to those that Cleveland gave (all
emphases added):
• The state board of education has authority to lease
“sixteenth section or lieu lands classified as agricultural . . .
for a term not exceeding five (5) years.” 35
• “The Mississippi Fair Commission and the Mississippi
Department of Agriculture and Commerce shall have the
authority to enter contracts for the sale of the
_____________________
33
Teeuwissen v. Hinds Cnty., Mississippi, No. 3:22-CV-9-CWR-LGI, 2022 WL
3443336, at *2 (S.D. Miss. Aug. 8, 2022).
34
Cleveland, 187 So. 3d at 608.
35
Miss. Code Ann. § 29-3-81 (emphasis added).
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aforementioned exclusive rights for a term not exceeding
twelve (12) years per contract.” 36
• “The board of supervisors may lease the lot or landing for
a term not exceeding five years[.]” 37
The County’s attempts to resolve this issue miss the point. The
County argues that both Cleveland and the district court required express
authorization. That much is correct. But the County never explains what the
legislature must do to give express authorization. Instead, it says only that the
words here are not enough. We disagree. The phrase “by the year” is the
kind of express authorization that Cleveland calls for. Any other reading
leaves the phrase “by the year” as surplusage.
IV
We hold that Section 19-3-47 expressly authorized the board to bind
successors, and we therefore REVERSE the district court’s final judgment
and REMAND for further proceedings.
_____________________
36
Miss. Code Ann. § 39-17-5 (emphasis added).
37
Miss. Code Ann. § 59-19-15 (emphasis added).
13