Opposition Brief — Greenville Public School District v. Western Line Consolidated School District

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| Surrsme Court, US

FILED

D JUN 28 1990

No. 90-1861

| OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

GREENVILLE PUBLIC SCHOOL

DISTRICT, et ai.,

Petitioners,

versus

WESTERN LINE CONSOLIDATED SCHOOL

DISTRICT, et al,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Mississippi

BRIEF FOR RESPONDENTS IN OPPOSITION

J. Robertshaw

ROBERTSHAW, TERNEY & NOBLE

128 South Poplar Street

P. O. Box 1498

Greenville, MS 38702-1498

(601) 378-2171

Counsel of Record for Respondents -

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

———

QUESTIONS PRESENTED

Whether the law applicable to the facts of this case

was not settled by Morns v. Gressette, 432 US 491

(1977)?

Whether Petitioners are not actually seeking on cer-

tiorari a review of a question of fact, decided adversely

to their contention in Greenville Public School District

v. Western Line Consolidated School District (Appendix

A), and in Dupree v. Mabus (a three-judge court;

Appendix R), both courts considering the same evide-

nce.

III Whether, assuming the statute in question [§ 47, Ch.

492, Miss. Laws of 1986, the “Uniform School Law’”]

was not precleared, should not Petitioners’ remedy be

the traditional constitutional action to enjoin enforce-

ment of of the voting practices or procedures com-

plained of?’

‘ As will be fully developed, Petitioners could not care less about

the amorphous effect on voting. In fact, the Petition is filed by the

school district and by the individuals in their official capacities as district

trustees. They seek the tax base on real and personal property annexed.

Very few schoo! districts vote.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 2... ccvccccvesce I

TABLE OF AUTRICRAIEEGS «occ cccccnsens IV

PERCEIVED MISSTATEMENTS OF FACT 1

A. The description of Western Line School District

in n.1, Petitioners’ Brief, is inaccurate

ee eee ee

B. The Supreme Court of Mississippi did

not “approve[d] the annexation in

1987” in Farmers, Inc., supra, N.1..........

SUPPLEMENTAL STATEMENT OF FACTS ..

PRELIMINARY ANALYSIS .....cscscecee

REASONS WHY CERTIORARI SHOULD

ee EE (4-60 ks ee Ra eee a

A. In Gressette, supra, this Court settled the

law that the USAG automatically precleared

State legislation submitted under § 5 by his

failure, for whatever reason, to make a timely,

B. The Uniform School Law as submitted satisfies

Gressette’s requirement the submission must be

. rT eres ree res

C. Whether the MAG fairly and squarely “submit-

ted” § 47 along with Uniform School Law to the

USAG for preclearance “in its entirety” is a

iii

Table of Contents (continued)

question of fact, not law, and not reviewable on

SOT ee ee eee ee

D. This case is a perfect example of what happens

when the USAG, on a § 5 review, goes beyond

the impact of State legislation on voting. ....

E. There is a lot to be said for certainty follow-

ing a preclearance of State legislation ......

TABLE OF AUTHORITIES

Page

CASES

Arkansas v. Mississippi, 415 U. S. 289 (1974) .... 2

Bassett v. Town of Taylorsville, 542 So2d 918

See SN rs ba Bree sacs Oe G SE Hee eee 6

City of Greenville v. Farmers, Inc., 513 So2d 932,

Fe EE 5 0s oon 06 eee een eee 2, 3, 4, 18, 21

Clark v. Roemer, --- US ---, 1991 WL 89713

ee a re ee a 2

Dotson v. City of Indianola, 514 FSupp 397

I MI Gra ater eure Us o's 5 oa 17

Dupree v. Mabus, CA No. H90-0043(W),

(SD MS, April 2, 1991)(Not officially reported.

P| egg at ee ee Aa > Sr

Greenville Public School Dist. v. Western Line

Consol. School Dist., 575 So2d 956 (Miss., 1991)

REO 5s ae eae Ue ees hae 6, 13, 17

Harrison County v. Gulfport, 557 So2d 780

ok ae a as oo 8s i 6

McCain v. Lybrand, 465 US 236 (1984) ... 11,.21 22, 23

Moms v. Gressette, 432 US 491 (1977) ....... Passim

Nickles v. Western Line Consol. School Dist., No.

GC90-45-B-O (ND MS, filed February 22, 1990) . 14

Prentiss County Annexation Committee v. Booneville,

Sak SOOO GPO THUR. TIGR) vc ce ec ccnyeevess 6

Robinson v. Board of Trustees, 477 So2d 1352

Pee ee ee eee eee ee Te ee ee 18

Western Line Consol. School Dist. v. City of Greenville,

S65 Sa.ce B57 (hee. 1967) ic ce cece 3, 6

STATUTES

et oe BB Re Og re Passim

§ 37-6-3(1), Mississippi Code of 1972 ......... 13

§ 37-7-103, Mississippi Code of 1972 ......... 7, 13

Table of Authorities (continued)

§ 37-7-105, Mississippi Code of 1972 ......... 7

§ 37-7-113, Mississippi Code of 1972 ......... 13

§ 37-7-611, Mississippi Code of 1972 ........ .Passim

§ 37-9-105, Mississippi Code of 1972 ......... 18

§ 37-S7-105, Mississippi Code of 1972 ........ 7

Ch. 492, (Miss.) Laws of 1986 (cited as Uniform

gS ee rere 7, 8, 12,.13, .15, 17, 20

§ 47, Ch. 492, (Miss.) Laws of 1986 ....... 7, 8, 14, 15

§ 52, Ch. 492, (Miss) Laws of 1986 ........ 7, 13, 24

§ 57, Ch. 492, Miss. Laws of 1986 ........... 12, 24

OTHER AUTHORITIES

The Book of Common Prayer (1928 Ed.) ....... 19

Supreme Court Rules, Rule 10.1 ............ +, o2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

No. 90-1861

GREENVILLE PUBLIC SCHOOL

DISTRICT, et al,

Petitioners,

WESTERN LINE CONSOLIDATED SCHOOL

DISTRICT, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Mississippi

BRIEF FOR RESPONDENTS IN OPPOSITION

PERCEIVED MISSTATEMENTS OF FACT

A. The description of Western Line School District in

n.1, Petitioners’ Brief, is inaccurate and misleading.

The statement challenged is “Western Line is essen-

tially a suburban school district.” [Emphasis added] Our

objection is not nit-picking, as suburban districts appear to

be given different consideration in the cases. Also, the

demography of the school district is relevant to questions

of voting, which is supposedly what this case is all about.

In fact, Western Line is approximately 40 miles north

and south, extending from the north boundary of Wash-

ington county southward into Issaquena County. It is

bounded on the west by the Mississippi River and by the

boundaries of Greenville Public School District (“GPSD”),

completely surrounding the latter. Its width varies from

one mile (at the easterly projection of GPSD) to about 15

miles, depending on the meandering of the river. It con-

tains approximately 442 square miles in Washington Coun-

ty, plus approximateiy 48 square miles in Issaquena coun-

ty.

The map, Appendix A to Arkansas v. Mississippi, 415

U. S. 289 (1974), includes that part of Western Line’s area

affected by annexation, but does not fairly show its total

area, or the general character of the District. By sub-

tracting the former acreage of Greenville from the total

acreage after annexation and deducting 5500 acres of

GPSD “added territory”, we obtain 3,761 acres of Western

Line (out of 590 square miles). This is about 1.2% of

Western Line’s total area”

See: City of Greenville v. Farmers, Inc., 513 So2d 932, 939 (Miss.

1987). The Court uses 300 square miles as Western Line’s area; we

don’t know where this number was obtained, but the difference is not

material. Both numbers illustrate our point.

2 We are reminded of a Greenville resident charged with frau i-

lently selling “rabbit burgers” during the Great Flood of 1927. When

pressed, he admitted they were only “S0% rabbit.” Asked what this

(continued...)

Western Line is a predominantly rural school district.

This is illustrated by the fact the proposed annexation

affected only about 1% of its territory, but approximately

15%’ of student enrollment, and approximately 55% of its

ad valorem tax base. Farmers, Inc., supra, n.1.

B. The Supreme Court of Mississippi did not “ap-

prove[d] the annexation in 1987” in Farmers, Inc,

supra, m1.

Western Line Consol. School Dist. v. City of Greenville,

465 So.2d 1057 (Miss. 1987), reversed and remanded the

case, directing the Chancellor to

balance the equities of the parties by weighing

all relevant factors to determine if the city’s

claim of need is defeated by inequitable conse-

quences to those in the annexation area. . . [465

So.2d at 1060.]

He did just that; he denied the whole annexation after

making specific findings related to Western Lines’ objec-

tions to annexing the Mississippi Power & Light Company

generating plant and the Comet Delta, Inc., facility,’ ob-

jections of Farmers, Inc., and certain objector-farmers.

*(._.continued)

meant, he replied, “One rabbit, one mule.” Some “suburban” school

district!

. Following annexation, more that 20% of enrollment.

* A 26.6 million dollar rice milling, processing, and storage facility.

Farmers, Inc., supra, again remanded the case with

directions to exclude the above facilities and property, and

to draw boundaries of the remainder of the proposed

annexation, thus assuring an adequate tax base and financ-

ial viability for Western Line.

SUPPLEMENTAL STATEMENT OF THE FACTS

Some background is needed in order to grasp the

true issues here. One would think that since this action

is brought under § 5 (the Voting Rights Act of 1965) that

it petitioners were concerned over the denial or abridge-

Ment of the right to vote. Nothing could be farther from

the truth. Petitioners do not give a tinker’s damn about

voting rights; they are after tax revenues.

_ Prior to 1954, there were more school districts in

Mississippi than a hound dog has fleas. For example, in

the area now comprising Western Line and GPSD, there

was the Greenville school district (which accepted all

white pupils from north to the county line and for some

8 to 10 miles to the south (boundaries were informal and

elastic), the Avon school district, the Riverside district,

the Chatham district and the Glen Allan district. Super-

imposed on these districts were separate districts for the

blacks: the Black Bayou Colored district, the Riverside

Colored district, the Glen Allan Colored district, and so

on. Virtually every school was a separate district.

> Since objectors prevailed in Farmers, Inc., supra, there was no

controversy over the Final Decree entered December 9, 1987, and the

record does not identify the Western Line acreage or tax base finally

included within the new corporate boundaries.

During 1953 and 1954, Mississippi enacted the Mini-

mum Foundation Program. Basically, control was center-

ed in the State Department of Education; the primary

source of revenues came from state taxes, distributed on

a “teacher unit” basis (in effect, per capita); districts were

re-constituted under supervision of the State Educational

Finance Commission (now abolished, its functions being

taken over by the State Board of Education, herein the

“EFC’”), winding up, as I recall, with 151 school districts,

Statewide.

These districts were re-constituted with emphasis on

viability, economic operation, and the capability of offer-

ing a varied curriculum designed to meet the needs of

modern society. A district, like a three-legged stool, had

to have: (1) sufficient students to support a curriculum

meeting accreditation standards; (2) an adequate teaching

and administrative staff; and, (3) a tax base sufficient to

support the first two.° The system must have worked,

because today we have only 153 districts, nearly 40 years

later.

This background was known to the courts and coun-

sel below; we add it here on the theory this Court should

have the same information in considering issues in this

case.

The mission of a school district is to educate pupils;

° The primary source of income was from the state. The only

other source of income for districts for “district maintenance funds”

used for enrichment (teacher salaries, local programs, etc) or for debt

service, was from ad valorem taxes on real and personal property. We

do not consider federal funds usually earmarked for specific purposes.

the mission of a municipality is to govern its residents and

furnish municipal services such as police and fire protec-.

tion, streets, drainage, sewerage, sanitation, and the like,

and these take tax revenues.’ Expansion by way of an-

nexations is triggered by this need for tax revenues, and

the municipal school district came along piggy-back, so to

speak, because of § 37-7-611 and the automatic (often

arbitrary) addition of any annexed territory to the school

district.

During this period, § 37-7-611, Mississippi Code of

1972, was an anomaly. It was arbitrary and the only

method of changing district boundaries not subject to

control by the EFC. Back in the “olden days”, when a

municipality only annexed what it needed, the arbitrary

effect of § 37-7-611 did not constitute a problem. With

‘he rising cost of government exceeding inflationary in-

creases in assessed valuation, cities began to annex ter-

ritory in large gulps. This resulted in a rash of cases

where school districts were forced to oppose annexation,

literally fighting for their economic lives. Examples: Wes-

tern Line Consolidated School District v. City of Greenville,

465 So2d 1057 (Miss. 1985) (the city sought to go from

11.6 square miles to 30.4); Prentiss County Annexation

Committee v. Booneville, 551 So2d 890 (Miss. 1989) (from

6.9 square miles to 24.9); and Harmson County v. Gulfport,

557 So2d 780 (Miss. 1990) (from 29.36 square miles to

83.01).

7 See: Bassett v. Town of Taylorsville, 542 So2d 918 (Miss. 1989).

The point is that criteria supporting municipal expansion differ widely

from, and have no reasonable relationship to, those relevant to the

constitution of school districts.

The legislative purpose of the Uniform School Law

in enacting § 47 repealing § 37-7-611 was to protect the

tax bases of county districts in the path of municipal ex-

pansions.® See: Appendix M, 145a.

PRELIMINARY ANALYSIS

Since petitioners have identified no conflicts between

opinions of United States courts of appeals, or any con-

flict of the opinion by the Mississippi Supreme Court, a

State court of last resort, with that of a United States

court of appeals,’ we are left with the following criterion

for a writ of certiorari stated in Rule 10.1, Supreme Court

Rules:

court of appeals has decided an important ques-

tion of federal law which has not been, but

should be, settled by this Court, or has decided

a federal question in a way that conflicts with

8 Since school taxes were determined by the school trustees and

levied separately by the city/county under §37-57-105, there would be

no reason why the city and county school district might not co-exis’

This preserved the student enrollment and the financial integrity of the

“target” school without interference with the need of the city for

additional tax revenues. If it became necessary or desirable to adjust

school boundaries, the mechanism was there in § 37-7-103 (specifically

precleared as § 52 of the Act).

9 Because § 5 contains the right to a direct appeal to this Court, we

would not expect to find circuit court decisions construing the Voting

Rights Act; petitioners point to no three-judge court decisions conflict-

ing with the case below which, in fact cites and relies upon three-judge

court decisions and, in turn, is cited and followed by Dupree, infra, a

three-judge court.

applicable decisions of this Court.

We think Mons v. Gressette, 432 US 491 (1977), set-

tled the question of Jaw relied upon by the court below;

ie., that compliance with the precleararice procedure is

measured solely by the absence, for whatever reason, of a

timely objection by the Attorney General of the United

States (“USAG”), leaving only a question of fact as to

whether submission of the Uniform School Law’ for

preclearance was “complete”. We believe this Court has

enough to say grace over as it is, without undertaking to

review issues of fact on certiorari.

Petitioners are curiously silent in their petition about

what they really seek to accomplish in this litigation, ‘sta-

ted in their Amended Complaint. The relevant part of

the declaratory judgment sought, as stated in the Amen-

ded Complaint, is:

a. The repeal of Section 37-7-611 of the

Mississippi Code of 1972 by Section 47 of the

Uniform School Law is void and of no effect

until it has been precleared by the Attorney

General of the United States. [Emphasis add-

ed.]

The only remedy under § 5 is

... unless and until the [District of Columbia

district] court enters such [declaratory] judg-

ment no person shall be denied the nght to vote

for failure to comply with such qualification,

” Chapter 492, Mississippi Laws of 1986.

prerequisite, standard, practice or procedure .

. . [Appendix O, p. 178a. Emphasis added.]

Congress did not, never intended to, and could not

give the USAG veto power over substantive legislation of

a State, unrelated to voting. Forbidding implementation

of what may or may not be valid, nondiscriminatory State

legislation is a most serious matter. We note § 5 requires

a three-judge court, plus a direct appeal to this Court,

both of which are unusual, to say the least. Providing an

expeditious administrative preclearance as an alternative

to a time-consuming declaratory judgment is really mean-

ingless unless the State could proceed with its business

with some degree of certainty it had complied with § S.

REASONS WHY CERTIORARI SHOULD BE DENIED

A. In Gressette, supra, this Court settled the law that

the USAG automatically precleared state legislation

submitted under § 5 by his failure, for whatever’

reason, to make a timely, specific objection.

This Court in Morms v. Gressette, 432 U.S. 491 (1977),

squarely held that where a State legislative act has been

completely submitted to the USAG for preclearance, and

the USAG fails to make a specific objection to the dis-

puted section within the 60-day period allotted---for what-

ever reason---he may not later interpose an objection.

In Gressette, a South Carolina statute was submitted

to the USAG for preclearance under § 5'’ on May 12

1972. On May 23, the United States district court found

11 49 USC § 1973c, referred to herein as “§ 5”.

the statute constitutional, and on June 30, the USAG

notified South Carolina he would interpose no objection,

but would defer to the district court’s determination.

Thereafter, another suit was brought in the district court

for the District of Columbia challenging the USAG’s fail-

ure to object.

On May 16, the DC court directed the USAG to

make a reasoned determination of the statute’s con-

Stitutionality, and in response he stated that in his view, it

was unconstitutional but refused to interpose an objection

in deference to the South Carolina district court’s deter-

mination. On July 19, 1973, the DC court directed the

USAG to make a determination without regard to the

South Carolina court’s decision, and the following day, the

USAG interposed an objection.

By our count, the USAG’s objection was interposed

434 days after the original submission.

Gressette held: (1) from the nature of § 5 and its

potential severity, Congress did not intend that the

USAG’s actions be subject to judicial review and that

compliance with § 5 by following the preclearance

procedure is measured solely by the absence for whatever

reason of a timely objection by the USAG; (2) Congress

intended to provide covered jurisdictions with an

expeditious alternative to the declaratory judgment action

by providing submission to the USAG as an alternative,

and since judicial review of his actions would unavoidably

extend the period specified in the statute, it is necessarily

precluded; and, (3) where the discriminatory character of

an enactment is not detected upon review by the USAG,

it can be challenged in traditional constitutional litigation,

but it cannot be questioned in judicial review of (a) the

USAG’s exercise of his discretion under § 5, or (b) his

failure to object within the statutory period.

The effect of § 5 is that a “covered jurisdiction”

may not “enact or seek to administer any voting qualifica-

tion or prerequisite to voting, or standard, practice, or

procedure with respect to voting different from that in

force or effect on November 1, 1968,” unless or until eith-

er (1) a declaratory judgment has been entered by the

district court for the District of Columbia to the effect

that the enactment “does not have the purpose and will

not have the effect of denying or abridging the right to

vote on account of race or color, .. .”, or (2) it has been

submitted by the chief legal officer to the USAG and the

USAG has not interposed an objection within sixty days

after such submission or has affirmatively indicated such

objection will not be made. Neither an affirmative

indication he will not object, nor the USAG’s failure to

object, nor such a declaratory judgment shall bar a subse-

quent action to enjoin enforcement. Appendix O, pp. 178-

9a.

Gressette points out that this Court has described the

nature of the § 5 remedy as “unusual” and “severe” [432

US at 501]; In McCain v. Lybrand, 465 US 236, 244

(1984), this Court commented,

The “preclearance” requirement mandated

by § 5 of the Act is perhaps the most stringent

of these remedies, and certainly the most ex-

traordinary.

- Mississippi is a covered jurisdiction.

As originally drafted, all such voting changes had to be

approved by the District Court for the District of Colum-

bia, and

[Jjustified concerns arose that the time required

to pursue such litigation would unduly delay the

implementation of validly enacted, nondis-

criminatory state legislation. Cognizant of the

problem, Attorney General Katzenbach sug-

gested that the declaratory judgment procedure

“could be improved by applying it only to those

laws which the Attorney General takes excep-

tion to within a given period of time” Senate

Hearings 237. The legislation was changed to

incorporate this suggestion.

In the light of the potential severity of the

§ 5 remedy, the statutory language, and the

legislative history, we think it clear that Con-

gress intenaed to provide covered jurisdictions

with an expeaitious alternative to declaratory

judgment actions.

432 US at 504. Emphasis added.

B. The Uniform School Law as submitted satisfies Gres-

sette’s requirement the submission must be

“complete”.

The Uniform School Law was approved April 15,

1986, with an effective date of July 1, 1987. It was sub-

mitted to the USAG for preclearance under § 5 on July

22, 1986. As the title implies, the purpose was to “pro-

vide that all public school districts in the state of Missis-

sippi shall have a common system of administration.”

[Appendix A, p. 3a]'°

As pointed out by the Mississippi Supreme Court,

The submission included the act in its entirety; a

copy of the roll call voters of both houses; and

a looseleaf booklet entitled “Senate Bill No.

2117---Comparison of Current Law and New

Law” which set forth each section of the then

current law followed by each applicable section

of Senate Bill Number 2117 for explanatory pur-

poses. The submission states in part, “(flor the

sake of brevity, the submission will only set

forth the particular sections which deal primari-

ly with the voting rights even though the com-

plete act is submitted for review.”. (emphasis

added). The submission then lists specific prov-

isions of the Act among them Section 52, am-

ending Miss. Code Ann. § 37-7-103, and Sec-

tion 57 amending § 37-7-113. [Appendix A, p.

9a; emphasis is in the original.]

We believe the Mississippi Attorney General

(“MAG”) specifically brought to the attention of the

USAG only those sections of the Uniform School Law

13 Cf §37-6-3(1), Mississippi Code of 1972.

i My secretary counts 467 pages.

which he perceived as affecting voting. § 47 repealed all

sections of the current law giving different treatment to

municipal separate school districts, including the bone of

contention here, § 37-7-611, Mississippi Code of 1972.

C. Whether the MAG fairly and squarely “submitted”

§ 47 of the Uniform School Law to the USAG for

5 To be candid, neither do we perceive § 47 of the Uniform School

Law as affecting voting. Residents of Western Line will continue to

vote for district Trustees who control the education of their children

and determine the annual millage levy for school purposes. They have

a direct interest in these elections, and have a right to vote for them.

Similarly, we have no quarrel with the fact Western Line residents will

be able to vote for councilmen who appoint Trustees of GPSD. These

councilmen are responsible for the operation of the City and for levying

city taxes and furnishing all municipal services (police and fire pro-

tection, streets, drainage, sewerage, etc.) in which these residents, as a

class, have a direct interest. The flip side of that question is that these

residents, as a Class, cannot constitutionally be excluded from voting for

these councilmen. We agree with the MAG’s conclusion,

The repeal of Section 37-7411 was based on the

iegisiative finding that public educational opportunities

available to students residing in rural areas of Mississippi

were substandard to those offered to students residing in

urban areas. The purpose underlying the repeal of Sec-

tion 37-7-611 was to protect the ad valorem tax base

available to county school systems in the path of municipal

expansions. The repeal of Section 37-7-611 was an educa-

tional decision totally unrelated to voting rights con-

siderations, . . . [Appendix M, 145a]

To give this Court some idea of the nature of cases brought

under § 5 under the guise of voting, Nickles v. Western Line Consol.

School Dist., No. GC90-45-B-O (ND MS, filed February 22, 1990), cited

in Petition, p. 7, n.7, was brought by Mrs. Janice Nickles, a white resi-

dent of Western Line, and her two minor school children. Mrs. Nickles

was not even registered to vote; her children are not old enough.

preclearance is a question of fact, not law, and not

reviewable on certiorari.

We shall not belabor this point other than to cite

Rule 10.1, Supreme Court Rules, and to point out that

petitioners have already had two bites at this cherry. The

court below called for an amicus cunae brief from the

MAG, which was prepared by Giles W. Bryant, Esq., a

Special Assistant Attorney General. By agreement of

counsel, Mr. Bryant furnished the Mississippi Supreme

Court the same documents relating to the submission as

he furnished a three-judge court in Dupree v. Mabus, Ap-

pendix R, p. 1b.’° Dupree is a “white horse” case, on all

fours as to law and the facts. Perry Sansing, Esq., repre-

senting the petitioners here, represented the plaintiffs in

Dupree, supra. The issue was the same in both cases: had

§ 47 of the Uniform School Law been precleared by the

USAG? Neither the Supreme Court of Mississippi nor

the three-judge court in the Southern District bought peti-

tioners’ argument that the repeal of § 47 was somehow

hidden from the USAG and thus “not submitted”. Of

course, had it been hidden, or if the USAG simply over-

looked or did not detect this repeal of S 37-7-611, petitio-

ners’ remedy is provided by § 5, itself:

Neither an affirmative indication by the Attor-

ney General that no objection will be made,

nor the Attorney General’s failure to object,

16 A direct appeal to this Court under § 5 has been perfected by

filing a timely Notice of Appeal. Although judgment was entered April

2, 1991, this case has not yet been officially reported, and on inquiry

there is some doubt it will be submitted for publication. Because of its

importance here, we have elected to reproduce the opinion in appendix

form.

nor a declaratory entered under this section

shall bar a subsequent action to enjoin enforce-

ment of such qualification, prerequisite, standard,

practice or procedure .. .’’ [Emphasis added.]

It might be useful to point out that two separate

courts, considering the same issue {whether § 47 had been

precleared], on the same facts [surrounding the original

1986 submission to the USAGI], have reached the same

result, each holding that as a matter of law on undisputed

facts there had been a “complete” submission of § 47.

D. This case is a perfect example of what happens when

the USAG, on a § 5 review, goes beyond the impact

of State legislation on voting.

In the USAG letter of March 31, 1989, interposing

an objection to repeal of § 37-7-611 (983 days after its

original submission), he gives the following as one reason:

While we recognize that demographic pat-

terns are not uniform throughout the state,

demographic data available to us suggest that

the repeal of Section 37-7-611 will have a Sig-

nificant racialimpact. According to information

published by the State Department of Educa-

tion, approximately half the municipal school

districts in the State of Mississippi have a stu-

dent population that is majority black and

7 We believe petitioners have scant interest in enjoining annexed

Wesiern Line residents from voting for city councilmen. Petitioners

want Western Line’s students and a bite out of its tax base; Western

Line doesn’t wart to surrender either. That’s this lawsuit in a nutshell.

about two-thirds are 40 percent black or higher.

Thus, with the repeal of Section 37-7-611, the

long term effect appears to be that, with the

movement of whites out of the cities, the munici-

pal school systems in Mississippi will essentially

be frozen in their present boundanes with increas-

ingly higher black population percentages and will

be economically disadvantaged while neighbor-

ing school distncts change in an opposite manner.

[Appendix L, pp.140a-41a. Emphasis added.]

Respectfully, what in the name of this ever-living,

blue-eyed world does this have to do with voting? If the

result intended by the USAG, and songht by petitioners,

were limited to voting by this “class of city voters”, no life

or death problem would ensue, since the § 5 remedy

would be a simple ban on implementation of the voting

change, but not on leaving school boundaries in place.

Cf.: Dotson v. City of Indianola, 514 FSupp 397 (ND MS,

1981). Preclearance of the annexation was under con-

sideration contemporaneously with the squabble over § 47,

and the USAG’s objections were not withdrawn until

February 11, 1990. [Appendix A, p. 4a-Sa.] Since the

problem is stated as creating a new class of city voters,

should not this have been logically considered in the an-

nexation preciearance, rather than in the consideration of

the Uniform School Law?

Let’s look at this.

Taking advcatage of the ambiguity in the USAG’s

preclearance of the Uniform Schoo! Law, seemingly limit-

ed to “the voting changes occasioned by Senate Bill No.

2117 as identified in your July 22, 1986, letter” [Appendix

H, p., 112a. Emphasis added.], petitioners commenced

this action seeking school taxes levied by Western Line on

property in the annexed area. In addition, they had given

the county tax collector a letter, noticing her that GPSD

claimed such taxes, which had the effect of cutting off

Western Line’s cash flow. What was the situation?

The Western Line territory affected consists of 3761

acres contiguous to the old Greenville city limits and to

the boundaries of the former Greenville Municipal Separ-

ate School District. Using data in Farmer’s, Inc., supra,

GPSD would take 300 of 2030 Western Line students, and

$39.9 (about 55%) of Western Line’s $73+ millions tax

base, but only about 1% of its territory. In addition, Wes-

tern Line would lose 11 teacher units with $212,000 in

state minimum foundation program support.”

§ 37-9-105, Mississippi Code of 1972, required school

districts to notify a teacher by April 8th of each year if

he/she were not to be tendered a contract for the ensuing

school year. Failure to give this notice meant the tea-

cher’s contract was automatically renewed. Robinson v.

Board of Trustees, 477 So2d 1352 (Miss., 1985). Because

of the uncertainty created by petitioners’ action, Western

Line did not know, and could not predict: (1) whether it

would have 2030 or 1730 pupils to educate for the follow-

ing school year; (2) whether there would be tax revenues

available during the following school year for the educa-

tion of these 300 students, or for the salaries of these 11

teachers; or, (3) if the required notice of non-reemploy-

ment were given the teachers, whether they would be lost

18 It takes no stretch of the imagination to visualize what this would

do to Western Line’s viability as an educational entity.

for good or available for employment if needed.

Moreover, this uncertainty extended to the students

and their parents as to where they would attend schoolite

following year, as well as to the administrative and struc-

tural staffs. One might well comment, “that’s a helluva

way to run a railroad.”

On these facts, Circuit Judge Clark granted a “mora-

torium’””’ for the fiscal year 1988-89, and petitioners ap-

pealed.

E. There is a lot to be said for certainty following a pre-

clearance of State legislation by the USAG.

We believe the language of § 5 as well as its legisla-

tive history [see pp. 11-12, supra] buttress the conclusion

it provided what Gressette refers to as an “expeditious

alternative to declaratory judgment actions”’[432 US at

504], and it was intended that a State might go about its

business implementing legislation, once precleared. With

the premise State legislation has been fairly and squarely

submitted to the USAG, we are reminded of language

most of us may be familiar with,

If any man can show just cause, why they may

not be lawfully joined together, let him now

speak, or else hereafter for ever hold his peace.

[The Book of Common Prayer (1928 Ed.), p.

300]

1? Continued by the Supreme Court of Mississippi during pendency

of the appeal by an interim order entered March 29, 1989.

What has happened in this case is sufficient justifica-

tion for the proposition. Because of the ambiguity arising

out of the USAG’s weasel words, “as identified in your

letter of July 22, 1986,” it is not beyond the realm of pos-

sibility some enterprising lawyer may come up with yet

another provision of the Uniform School Law perceived

to affect voting, five years after the original submission.

REBUTTAL

With deference, we believe further argument on

whether the original submission of the Uniform School

Law for § 5 preclearance by the USAG was “complete”

within the meaning of the Gressette holding would be

redundant. Suffice it to say that on the same facts, the

eight-judge Supreme Court of Mississippi and the three-

judge Dupree court have unanimously found as a matter of

law that the submission was complete. Should argument

be considered necessary, we will be content to incorporate

the Dupree opinion by reference [Appendix R].

Nowhere in this action is there any claim that any

petitioner’s right to vote has been abridged or denied on

account of race or color, nor does any petitioner claim

he/she has been “denied the right to vote for failure to

comply with such qualification, prerequisite, standard,

practice or procedure [contained in the Uniform School

Law]”. We note the parties are “named in their official

capacities” (Petition, ii]; a school trustee does not vote in

his/her “official capacity”.

In all cases cited above spawned by claims § 37-7-

611 has not been precleared, we defy petitioners to iden-

tify a single one of them based upon any alleged denial or

impairment the right to vote on account of race or color.”

Every one of them, without exception, is an attempt to

take students and/or ad valorem tax base from the adjoin-

ing school district, without regard for the consequences.

On pages 16-19, above, the consequences or potential

consequences of an action such as this are described in

detail. None is related to voting.

Petitioners rely heavily on McCain v. Lybrand, supra,

the opening paragraph of which is quoted:

In 1966, South Carolina enacted a statute

that altered Edgefield County’s election prac-

tices but the statute was not submitted to fede-

ral officials for their approval as required by

the Voting Rights Act of 1965. In 1971, the

Statute was amended, modifying the 1966 elec-

tion practices, and state officials submitted the

amendment to the Attorney General for his

approval. In response to a request from the

Attorney General, state officials provided him

with additional documentation in support of

their submission, including the 1966 statute.

The Attorney General approved the submis-

sion, stating that he did not object to the chan-

ge in question. The question in this case is whet-

” We in Western Line actively resent baseless charges of dis-

crimination based on race or color. When the Singleton-type desegrega-

tion decree was entered against it in January of 1970, Western Line was

determined to desegregate and make it work. It did so. Farmers, Inc.,

supra, at 939. GPSD did not. We would venture to make the general

statement there is less racial discrimination teday in Mississippi as a

whole and Western Line in particular than there is, say, in the District

of Columbia.

her the Attorney General’s approval of the 1971

submission can be deemed to have the effect of

ratifying the changes embodied in the 1966 enact-

ment. We hold that the 1966 changes have not

been approved. 465 US at 238-39. Emphasis

added.

In the case at bar, the facts are completely different.

Here, petitioners cannot dispute the fact the Uniform

School Law was submitted for preclearance in its entirety.

The question before this Court is whether the USAG’s

failure to object to § 47 constituted preclearance under §

5. Consequently, McCain may not be used as authority

one way or another on the precise issue decided by the

court below; i.e., did the AGUS preclear § 47 by his

failure to then object?

We expect petitioners to make the same arguments

in reliance on the recent case” of Clark v. Roemer, --- US

---, 1991 WL 89713 (USSC, June 3, 1991), and we think it

distinguishable on the facts. Clark involved the holding of

elections for judgeships. As to some, the three-judge

court found the USAG had interposed valid objections

when submitted for preclearance (“Group I”); as to

others, historically some of the earlier judgeships had

never been submitted for preclearance, but most of the

later ones had (“Group II’). As to both groups, Louisiana

had filed for judicial preclearance by the District of Co-

lumbia district court. The three-judge court refused to

enjoin the elections for these judgeships, but did enjoin

the winners from taking office pending judicial preclearan-

ce. This Court held it error not to enjoin the Group I

21 Decided June 3, 1991, the same day this petition was filed.

elections in the face of the plain § 5 mandate. As to the

Group II seats, the three-judge court had reasoned it was

not the amendments, but the whole legislative act covering

all of the judgeships which was submitted for preclearan-

ce, and that when the USAG approved the new act, “he

not only approves the amended portion but necessarily

approves the older, reenacted part, which forms part of

the new-act.” [1991 WL 89713, *7 (US)] Clark held this

governed by McCain, supra, and that the injunction should

have issued.

Clark raises the question of identifying the voting

changes submitted for preclearance, This was done in the

context of Group II cases where the question was preclea-

rance “of what?” Specifically, was the USAG being asked

to preclear only the amendments adding new judgeships,

or both the amendments and the original legislative act

being amended, which included some unprecleared judge-

ships. In this context, we would think good faith would

require Louisiana identify both the old act and the new

additions in submitting it for preclearance, particularly if

Louisiana intended to submit the old with the new. We

use the words, “good faith”, advisedly, because we believe

a submitting jurisdiction is under a duty to present the

matter fairly and squarely. McCain, supra, 465 US at 247.

Then, too, we believe “sandbagging”, and “trial by am-

bush” have no place in the practice of law.

Clark, purely and simply, is a variation on the

McCain theme. . .nothing more.

We are convinced neither the MAG nor the USAG

had any idea the repeal of § 37-7-611 affected voting

rights, pointing out that the former had singled and dis-

cussed what he thought were all the “particular sections

which deal primarily with voting rights”. Appendix E, p.

35a.

What of this “preclearance by implication”? First,

applying the Gressette rule, we need not reach this ques-

tion. We suggest this “implied preclearance” is a matter

of semantics. The Court below simply demonstrated that

the specific preclearances of § 52 and § 57 is entirely

inconsistent with the objections raised to § 47, 1,403 days

after the original submission. This is entirely inconsistent

with Congressional intent that the administrative proce-

dure be an “expeditious alternative” to an action for decl-

aratory judgment. Of course, if preclearance by the

USAG can be re-opened or collaterally attacked three to

four years after the initial preclearance, no State can safely

implement legislation precleared by this “expeditious alterna-

tive”’.

CONCLUSION

Backing off for a proper perspective, it is apparent

the confusion arose as to whether § 37-7-611 had been

repealed arose because the USAG neither precleared nor

objected to § 47 of the Uniform School Law. Under Gres-

sette, this constitutes preclearance. When State legislation

is properly submitted to the USAG for preclearance, the

time has come; “let him now speak, or else hereafter for

ever hold his peace.”

Preclearance can never constitute an “expeditious

alternative to the declaratory judgment action” under § 5

unless and until the State can rely upon the preclearance

by the USAG as full compliance with § 5.

and Ne

The petition for certiorari should be denied.

Respectfully submitted,

Vee Tow

J. Robertshaw

(Counsel of Record)

ROBERTSHAW TERNEY & NOBLE

128 South Poplar Street

P. O. Box 1498

Greenville, MS 38702-1498

(601) 378-2171

CERTIFICATE

I certify that I have this date forwarded the foregoing

Brief in Opposition via Federal Express, charges prepaid,

to the Press of Byron S. Adams, Washington, D. C., for

printing, binding and filing with the Clerk of this Court

not later than July 5, 1991, with further directions to serve

three copies, each, upon counsel for Petitioners at the

addresses stated below, and to file its affidavit of such

service with this Court:

HOLMES S. ADAMS, Esq.

PERRY SANSING, Esq.

(Counsel of Record)

BRUNINI, GRANTHAM,

GROWER & HEWES

1400 Trustmark Building

P. O. Box 119

Jackson, MS 39205

CLELL G. WARD, Esq.

McLEMORE & WARD

525 North Broadway

P. O. Box 75

Greenville, MS 38702

Dated: June 25, 1991.

QUT haw

J. Robertshaw

Counsel of record for Respondents

APPENDIX

APPENDIX R

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

JOHNNY DUPREE, ET AL,

Plaintiffs,

versus

RAY MABUS, Governor of Mississippi, ET AL,

Defendants,

THE LAMAR COUNTY BOARD OF EDUCATION

and TRUSTEES, in their official capacities and

FORREST COUNTY SCHOOL DISTRICT and the

Members of the BOARD OF TRUSTEES in their

official capacities,

Defendants /Intervenors.

Civil Action No. H90-0043(W)

‘SOUTHERN DISTRICT OF MISSISSIPPI

FILED

APR 02 1991

J.T. NOBLIN, CLERK

BY DEPUTY

MEMORANDUM OPINION AND ORDER

' Pursuant to 42 U.S.C. § 1973c and 28 U.S.C. § 2284,

this action under § 5 of the Voting Rights Act of 1965 is

before this three-judge Court on motions for summary

judgment pursuant to Fed.R.Civ.P. 56 by (1) the plain-

tiffs, members of the Board of Trustees of the Hattiesburg

Public School District; (2) defendants, Ray Mabus and

Mike Moore in their capacities as Governor and Attorney

General of Mississippi, respectively, and the State of

Mississippi; and (3) intervenor/defendant, the Forrest

County School District and its Board of Trustees; and on

the Rule 12(b) motion to dismiss by intervenor/defendant,

the Lamar County Board of Education and its Trustees.’

Beginning in 1966, the City of Hattiesburg (City)

began expanding, through annexations, into Forrest and

Lamar Counties; and the citizens in these annexed areas

vote in City municipal elections. However, the City’s

municipal school district boundaries have not expanded

with the annexations.

State laws enacted, and in one instance repealed,

since 1977 affect the composition of both municipal and

county school districts and allow the annexed areas’ voters

not residing in the City school district to vote for the City’s

governing authorities, who in turn select the City school

board. Accordingly, the plaintiffs allege that these

changes constitute voting changes covered by § 5 of the

1 The state defendants moved to dismiss for failure to state a claim

upon which relief may be granted, Rule 12(b)(6), or alternatively for

summary judgment. Rule 12(b) provides that if a 12(b)(6) motion is

made and “matters outside the pleading are presenied to and not

excluded by the court, the motion shall be treated as one for summary

judgment and disposed of as provided in Rule 56.” Because we

consider matters outside the pleadings, we treat the motions to dismiss

as summary judgment motions.

Voting Rights Act of 1965 (Act), 42 U.S.C. § 1973c.

The plaintiffs, residents and registered voters in the

City and Forrest County and duly appointed members of

the Board of Trustees of the City school district, filed this

action in February 1990, seeking, inter alia, to enjoin the

State of Mississippi and state officials from enforcing three

State statutes: (1) the 1977 amendment to Miss. Code

Ann. § 21-1-59, Ch. 379, 1977 Miss. Laws 5432; (2) the

1978 revision of the 1977 amendment to § 21-1-59, Ch.

312, 1978 Miss. Laws 418; and (3) the 1986 repealer of

Miss. Code Ann. § 37-7-611, Uniform School Law, Ch.

492, § 47, 1986 Miss. Laws 687. The plaintiffs contend

that these laws have not been precleared pursuant to § 5

of the Act and are therefore unenforceable.”

The Lamar and Forrest County Boards of Education

and the members of their Boards of Trustees intervened

as defendants. The Lamar County Board filed a counter-

claim, alleging that the relief sought by the plaintiffs would

violate a desegregation order under which the Lamar

County School District .

operates, by radically altering the racial balance of that

district in violation of 42 U.S.C. § 1983 and the Four-

teenth Amendment.

It is undisputed that § 52 of the Uniform School Law,

§ 37-7-103, was precleared. In effect, it is the successor to

one of the three statutes in issue--§ 37-7-611. The Missis-

sippi Supreme Court recently heid in Greenville Public

School District, et al. v. Western Line Consolidated School

District, et al, No. 07-CA-59534 (December 12, 1990), that

repeal of § 37-7-611 was precleared when the United

? Pursuant to its March 7, 1991, motion, the United States was

granted leave to submit a brief as amicus curiae. The United States

contends that § 5 applies and that the requisite preclearance has not

been received.

| a

4b -

States Attorney General (USAG) failed to interpose an

objection to the entire 1986 Uniform School Law. That

court also held that if not expressly precleared, § 37-7-

611 was precleared implicitly by the express preclearance

of § 37-7-103 of the Uniform School Law, because the two

provisions are "clearly inconsistent." Id. at 14.

II.

The Act provides that certain jurisdictions may not

implement any “voting qualification or prerequisite to

voting, or standard, practice, or procedure with respect to

voting different from that in force or effect on November

1, 1964" without first obtaining approval from the United

States District Court for the District of Columbia or,

alternatively, from the USAG that the proposed change

does not, or will not, have a discriminatory purpose or

effect. 42 U.S.C. § 1973(c).

Due to the expense and burden of instituting and

action for declaratory judgment in the D.C. District Court,

most covered jurisdictions opt for the USAG approval

alternative. The Act and regulations implemented under

it provide that once a proposed change has been sub-

mitted to the USAG, he has 60 days within which to

object. The USAG may request additional information;

and if an objection is interposed by the USAG, the

submitting party may request reconsideration.

28 C.F.R. §§ 51.37; 51.45. Such a request triggers another

60 day period for the USAG to decide whether to

continue or withdraw his objection. Jd. at § 51.48. If the

USAG fails to object within the prescribed time, the

jurisdiction is free to implement the new enactment. But,

even if the legislation is precleared by the USAG, nothing

in the statute prevents a subsequent judicial challenge to

that legislation.

We turn first to a discussion of the Mississippi statutes

in issue: §§ 21-1-59 and 37-7-611 (repealed).

Prior to 1977, § 21-1-59 provided that "[n]o municipality

shall be created or shall change its boundaries so as to

include within the limits of such municipality any of the

buildings or grounds of any state institution" unless

consent was obtained from the governing body of the

institution. In 1977, the section was amended to add the

following:

Provided further, that any change in the boun-

daries of a presently existing municipality which

crosses county lines shall not affect the public

school district located in the annexed area unless

and until. consent thereto shall have first been

obtained in writing from the Board of Trustees

of the school district proposed to be partially or

wholly included in the change of municipal

boundaries.

Ch. 379, 1977 Miss. Laws 543 (emphasis added). This

amendment was applicable to certain of the City’s annexa-

tions; it created an exception to the above referenced §

37-7-611, further discussed. below, which provided that

such expansion automatically included the municipal

school district incorporating the annexed area.

As discussed below, the 1977 amendment was not

submitted for preclearance to the USAG until March 23,

1990, because the state defendants believed that the

amendment was not subject to § 5, being of the view that

it had the effect of preserving the status quo and was thus

not a voting "change."

! |

In 1978, § 21-1-59 was amended again. Ch. 312, 1978

Miss. Laws 418. The amendment made the statute

applicable to future annexations into a neighboring county

by adding the following italicized language:

Provided further that any changes in the boun-

daries of a presently existing municipality which

extends into or further extends into a county in

which the municipality’s principal office is located

shall not affect the public school district located

in the annexed area, unless and until consent

thereto shall have been first obtained... .

(Emphasis added.) A referendum provision was also

added for the Jones County-Laurel area concerning the

acquisition of county school territory by the Laurel public

schools.

The statute, as amended in 1978, was submitted for

preclearance in April 1978. The submission did not

mention the “extends into or further extends” language,

referencing only the referendum. When the State respon-

ded to the USAG’s request for additional information,

again no mention was made of the "extends" language. In

March 1981, the USAG interposed no objection.

The 1986 Uniform Sckool Law did not change § 21-

1-59. In May 1990, the USAG objected to the 1977

amendment submitted for preclearance, stating:

[W]e note that the state makes several claims

about the preclearance status of the instant

changes which appear to seriously misconstrue

the structure, purpose, and history of the preclea-

rance requirement... .The state. . .contends that

a 1978 amendment which clarified the scope of

the instant 1977 change was precleared when the

state in 1981 received preclearance for a separate

| portion of the 1978 statute.

The USAG rejected this claim.

Prior to being repealed in 1986 by § 47 of the Uni-

form School Law, Ch. 492, 1986 Miss. Laws 687, the other

Statute in issue, § 37-7-611, enacted in 1926, stated in part:

Where the corporate limits of any municipality

which constitutes a municipal separate school

district, either with or without added territory,

| are extended so as to include the whole or any

| part of an existing adjacent school district in the

| county school system or municipal separate

school district, then such adjagent school district,

or such part thereof as is included within the

corporate limits of the municipality by reason of

the extension thereof, shall thereby automatically

be merged with and become a part of such

municipal separate school district.

Miss. Code Ann. § 37-7-611 (1972). As discussed above,

§ 21-1-59, as amended in 1977 and 1978, provided an

exception to § 37-7-611, concerning how municipal school

districts were affected by certain municipal expansions.

In 1986, the Mississippi Attorney General (MAG)

submitted Senate Bill 2117, the Uniform School Law of

1986, for preclearance. The cover memorandum for the

submission stated that the law was submitted "in its

entirety" and provided:

The act accomplishes a reorganization and

a a

streamlining of laws which govern the operation,

financing, and administration of the public

schools in Mississippi. Senate Bill number 2117

is reform legislation supplemental to and a

logical extension of the Education Reform Act of

1982. . . For the sake of brevity, the submission

will only set forth the particular sections which deal

primanly with voting nghts even though the com-

plete act is submitted for review.

(Emphasis added.) The memorandum explained 13

sections of the Uniform School Law and their effect on

voting.

The repealer of § 37-7-611 was not discussed in this

cover letter. However, accompanying the submission was

a booklet comparing each section of Senate Bill 2117 with

prior law, together with an underlined version of Senate

Bill 2117, reflecting the new language as well as deletions

of prior language. The booklet’s introductory note provid-

ed:

This booklet sets forth on a section by section

basis each section of the current law which has

been amended followed by each individual

section of Senate Bill Number 2117, Laws of

Mississippi, 1986 Regular Session. Where the

sections of Senate Bill Number 2117 are new law

then only those particular sections will be deno-

ted with no comparison of current law. This

section by section comparison provides ex-

planatory materials adequate to disclose the

difference between the prior and the proposed

law. Each section of Senate Bill Number 2117

which is the version of the bill as sent to the

governor is marked to show the changes made in

the current law. Underlining indicates language

added and a check mark indicates language

deleted. By comparing each section of Senate

Bill Number 2117 and the current practice, the

changes to current law are easily identified.

The above referenced section 47 of the Uniform School

Law provided for the repeal of 23 sections, including § 37-

7-611. The booklet stated that these 23 sections "which

provide for the creation and operation of municipal

separate schoo! districts, are hereby repealed."

Section 52 of the Uniform School Law amended § 37-

7-103. This provision was specifically discussed in both

the cover memorandum accompanying the submission and

the booklet. The cover memorandum provided:

Section 52 amends Section 37-7-103. . .[and] sets

forth that . . .the schoo! board of any school .

. district may abolish such existing district or

reorganize, change or alter the boundaries of any

such district. Additionally, the school board with

the consent of the school board of the district

involved may add to such school district any part

of the school district adjoining same or may

detach territory from such school district and

annex the same to an adjoining district. The

present law enables the county board of educa-

tion to create, alter or abolish any school dis-

tricts of such county, other than the municipal

separate school districts. In addition, the county

board of education with the consent of the board

of trustees of the municipal separate school

district involved may add to such municipal

separate school districts any part of the county

adjoining same or may detach territory from such

10b

municipal separate school district and annex

same to an adjoining district in the county school

system.

On August 29, 1986, the USAG advised the MAG

that he did "not interpose any objection to the voting

changes occasioned by Senate Bill No. 2117 (1986), as

identified in your July 22, 1986, letter." (Emphasis added.)

The letter concluded:

We note that several of the provisions of Senate

Bill No. 2117 (1986) authorize officials of the

political subdivisions of the State to make chan-

ges affecting voting which are viewed as enabling

legislation. Therefore, local officials are not

relieved of their responsibility to seek precle-

arance, pursuant to the requirements of section

5, of any changes effecting voting (e.g., changing

voting precinct lines, polling places, special

election dates and procedures, boundary changes,

etc.) which are adopted as a result of the provisi-

ons of Senate Bill No. 2117. 28 C.F.R. 51.14.

The State concedes that the USAG’s letter raised

doubt about whether the preclearance included provisions

other than those 13 specifically listed in its cover memora-

ndum. Therefore, in December 1987, the MAG sought an

affirmative preclearance of § 47 insofar as it repealed

Miss. Code Ann. § 37-7-611. In the State’s resubmission,

it reserved the right to object to § 47 being subject to

preclearance. The memorandum accompanying the

resubmission further stated:

It is the automatic expansion of the school

district which has been repealed by the instant

11b

submission. The option to expand however, is

not foreclosed. Section 52, of the Chapter 492 of

the 1986 Laws of Mississippi (precleared by the

United States Justice Department on August 29,

1986) provides that the school board of any

school district may abolish such existing district

or reorganize, change or alter the boundaries of

any such school district.

On February 29, 1988, the USAG requested addition-

al information concerning the repeal of § 37-7-611. The

State responded; and on March 31, 1989, the USAG

objected to the implementation of § 47 of the Uniform

School Law insofar as it repealed § 37-7-611. The State

requested reconsideration; and by letter dated May 25,

1990, the USAG declined to withdraw his original objec-

tion, stating in part:

It is well-established that to trigger Section 5

review a covered jurisdiction must submit a

voting change to the Attorney General in an

“unambiguous and recordable manner.” [T]he

prior submission of the Uniform School Law. .

identified specific voting changes adopted by

those statutes, but...[the] submission contained

[no] reference to the voting changes which the

State now claims were precleared. Section S, as

interpreted by the courts and our submission

guidelines, plainly fixes the responsibility for

identifying voting changes on the state, not the

United States Attorney General, yet the state

appears to be arguing...that the Attorney Gene-

ral should have uncovered voting changes of

which the state itself seemingly was unaware at

the time the prior submissions were made.

8 nn taal

12b

Il.

Rule 56 provides that summary judgment "shall be

rendered forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is

entitled to judgment as a matter of law." Fed.R.Civ.P.

56(c). The language of Rule 56 "mandates the entry of

summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the

burden at trial." Celotex corp. v. Catrett, 477 U.S. 317, 322

(1986).

The intervenors and defendants raise several issues

which must be addressed before consideration of the § 5

issues.

The defendants and Lamar County assert that no

relief can be granted against the Governor or the MAG

because they have no duty to administer laws concerning

alteration or definition of school district boundaries.

Section 5 provides that state enactments may not be

enforced unless they have "been submitted by the chief

legal officer or other appropriate official of such State or

subdivision to the [United States] Attorney General. .. ."

42 U.S.C. § 1973c (emphasis added).

The primary issues in this case are whether the

Statutes are covered by § 5 and, if so, whether they have

13b

been precleared. In Mississippi, the attorney general is

"the chief legal officer and advisor for the state." Miss.

Code Ann. § 7-5-1 (1972). The Attorney General is a

proper party to this action. The Governor, however, is

not responsible for preclearance. The Act uses the phrase

chief legal officer or other appropriate state official.

Because the MAG is the chief legal officer, no other state

official is required to act. The Governor has no statutori-

ly imposed responsibility to ensure that statutes are

precleared.’ Accordingly, he will be dismissed from this

action.

The intervenors contend that the plaintiffs lack

standing to pursue their claim, because the statutes do not

result in a change in voting affecting the Board of Trus-

tees of the City school district. Whether plaintiffs have

Standing is directly related to whether these statutes are

§ 5 changes in voting; and as discussed infra, they are. To

have standing, the plaintiffs must have a "distinct and

palpable injury" and a “fairly traceable" causal connection

between the claimed injury and the challenged conduct of

the defendant. Warth v. Seldin, 422 U.S. 490, 501 (1975)

and Village of Arlington Heights v. Metropolitan Housing

Dev. Corp., 429 U.S. 252, 261 (1977); see also Duke Power

Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 72

(1978). The Act extends to States and the subdivisions

thereof. "It is consistent with the broad purpose of the

Act to allow the individual citizen standing to insure that

. Moreover, the Lamar and Forrest County Boards and Trustees

have intervened in the suit. To the extent administration or enforce-

ment of the statutes in issue were required, such relief could be directed

to these parties.

14b

his city or county government complies with the § 5

approval requirements." Allen v. State Bd. of Elections, 393

U.S. 544, 557 (1969). In Allen, the Court further stated:

[T]he major purpose of the Act indicates that

appellants may seek a declaratory judgment that

a new state enactment is governed by § 5.

Further, after proving that the State has failed to

submit the covered enactment for § 5 approval,

the private party has standing to obtain an

injunction against further enforcement, pending

the State’s submission of the legislation pursuant

to § 5S.

Id. at 555.

The plaintiffs are residents and registered voters in

the City and are members of the Board of Trustees of the

City school district. They allege that if the statutes

continue to be enforced, voters in the annexed territory

who are not residents of the City school district will elect

the City mayor and council members who, in turn, will

select the trustees of the City school board. The plaintiffs

allege a distinct injury under the Act which is directly

traceable to the defendants’ alleged failure to comply with

the requirements of § 5. As noted by the Court in Allen,

§ 5 "might well prove an empty promise unless the private

citizen were allowed to seek judicial enforcement of the

prohibition." /d. at 557. The plaintiffs have standing.

The state defendants contend that the action is barred

by the Eleventh Amendment, asserting that only the

USAG may sue a State pursuant to the Act. This argu-

ment is without merit. The Supreme Court in Allen,

15b

discussed supra, held that private citizens may bring an

action under § §.

Lamar County argues that the action is barred by the

Eleventh Amendment, pursuant to Pennhurst State School

& Hosp. v. Halderman, 465 U.S. 89 (1984). But Pennhurst

concerned the failure of state officials to carry out their

duties under state, not federal, law; the plaintiffs’ claim

concerns failure to adhere to federal law. Furthermore,

as is more than clearly established, Eleventh Amendment

immunity does not bar actions for injunctive relief against

state officials on the basis of federal law under the doc-

trine of Ex parte Young, 209 U.S. 123 (1908).

The intervenors also contend that the case is not ripe

for decision, because a 1966 City annexation into Lamar

County was never precleared by the USAG.* (The other

annexations were precleared.) The 1966 annexation was

the basis for all subsequent annexations, because they are

contiguous to that annexation. Under Mississippi law,

annexations must be "adjacent" to the municipality. Miss.

Code Ann. § 21-1-27 (1972).

The status of the 1966 annexation does not affect our

jurisdiction to consider whether the statutes in issue are

covered by the Act and, if so, whether they have been

precleared. The "basic rationale [of the ripeness doctrine]

is to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements." Abbott Laboratones v. Gardner, 387 U.S.

* The Lamar County intervenors stated that they were contemplat-

ing an amendment to their Answer for leave to file a third party

complaint against the City challenging the validity of the 1966 annexa-

tion. They have not done so.

52a

(j) To see that fuel and heating are provided

in the schools at all times when same are needed;

(k) To authorize the use of the school build-

ings and grounds for the holding of public meet-

ings and gatherings of the people under such

regulations as may be prescribed by said board;

() To prescribe and enforce rules and reg-

ulations not inconsistent with law or with the

regulations of the State Board of Education for

their own government and for the government

of the schools, and to transact their business at

regular and special meetings called and held in

the manner provided by law;

(m) To maintain and operate all of the

schools under their control for such length of

time during the year as may be required;

(j) To see that fuel and heating are provided in the

schools at all times when same are needed;

(k) To authorize the use of the school buildings and

grounds for the holding of public meetings and gatherings

of the people under such regulations as may be prescribed

by said board;

(1) To prescribe and enforce rules and regulations not

inconsistent with law or with the regulations of the State

Board of Education for their own government and for the

government of the schools, and to transact their business

at regular and special meetings called and held in the

manner provided by law;

(m) To maintain and operate all of the schools under

their control for such length of time during the year as

may be required;

53a

(n) To enforce in the schools the courses of

study and the use of the textbooks prescribed by

the proper authorities;

(0) To suspend or dismiss pupils when the

best interest of the school makes it necessary,

and to deny admission to or suspend or dismiss

children who are found to be so mentally or emo-

tionally abnorinal that their attendance at the

school is detrimental to the best interest of the

child involved or to the other pupils attending

the school;

(p) To make orders directed to the county

superintendent of education for the issuance of

pay certificates for lawful purposes on any avail-

able funds of the district;

(q) To select superintendents, principals, and

teachers in the manner provided by law;

(r) To provide and regulate athletic programs

and other school activities; and

(s) To join, in their discretion, for the school

trustees in their district, any association of school

boards and to pay from local funds other than

minimum foundation funds, any membership dues.

(n) To enforce in the schools the courses of study and

the use of the textbooks prescribed by the proper

authorities;

(0) To suspend or dismiss pupils when the best interest

of the school makes it necessary, and to deny admission

to or suspend or dismiss children who are found to be so

mentally or emotionally abnormal that their attendance at

the school is detrimental to the best interest of the child

involved or to the other pupils attending the school;

(p) To make orders directed to the county superin-

tendent of education for the issuance of pay certificates

for lawful purposes on any available funds of the district;

54a

(q) To select superintendents, principals, and teachers

in the manner provided by law;

(r) To provide and regulate athletic programs and

other school activities; and

(s) To join, in their discretion, for the school trustees

in their district, any association of school boards and to

pay from local funds other than minimum foundation funds,

any membership dues.

55a

(t) To expend local school activity funds, or

other available school district funds, other than

minimum education program funds, for the pur-

poses prescribed under this paragraph. “Activity

funds” shall mean all funds received by school

Officials in all school districts paid or collected to

participate in any school activity, such activity

being part of the school program and partially

financed with public funds or supplemented by

public funds. Activity funds may only be ex-

pended for any necessary expenses or travel costs

incurred by students and their chaperones in at-

tending any in-state or out-of-state school-related

programs, conventions or seminars and/or any

commodities, equipment or school supplies which

the local school governing board, in their discre-

tion, shall deem beneficial to the official or ex-

tracurricular programs of the district, including

items which may subsequently become the per-

sonal property of individuals, including year-

books, athletic apparel, book covers and trophies.

The local school governing board shall be au-

thorized and empowered to promulgate rules and

regulations specifically designating for what pur- —

poses school activity funds may be expended, and

what type of bookkeeping methods, procedures

and auditing shall be utilized in accounting for

such funds. The local school governing board shall

provide (a) that such school activity funds be au-

dited annually, or (b) that a financial statement

for such school activity funds be prepared and

spread upon the minutes of the board. The board

may utilize the services of a certified public ac-

countant, a public accountant, the State Depart-

ment of Audit or its own personnel in preparing

such audit or financial statement.

56a

(t) To expend local school activity funds, or other

available school district funds, other than minimum edu-

cation program funds, for the purposes prescribed under

this paragraph. ‘Activity funds” shall mean all funds re-

ceived by school officials in all school districts paid or

collected to participate in any school activity, such activity

being part of the school program and partially financed

with public funds or supplemented by public funds. The

term “activity funds’ shall not include any funds raised

and/or expended by any organization unless deposited with

existing activity funds, regardless of whether the funds

were raised usin, school facilities. Organizations shall not

be required to make any payment to any school for the

use of any school facility if, in the discretion of the local

school governing board, the organization’s function shall

be deemed to be beneficial to the official or extracurricular

programs of the school. For the purposes of this provision,

the term “organization” shall not include any organization

subject to the control of the local school governing board.

Activity funds may only be expended for any necessary

expenses or travel costs, including advances, incurred by

students and their chaperones in attending any in-state or

out-of-state school-related programs, conventions or sem-

inars and/or any commodities, equipment, travel expenses,

purchased services or school supplies which the local school

governing board, in their discretion, shall deem beneficial

to the official or extracurricular programs of the district,

including items which may subsequently become the per-

sonal property of individuals, including yearbooks, athletic

apparel, book covers and trophies. Activity funds may be

used to pay travel expenses of school district personnel.

The local school governing board shall be authorized and

empowered to promulgate rules and regulations specifically

designating for what purposes school activity funds may

be expended. The local school governing board shall pro-

vide (a) that such school activity funds shall be maintained

and expended by the principal of the school generating

ise eateenaeemeeneeieieiien

57a

the funds in individual bank accounts, or (b) that such

school activity funds shall be maintained and expended by

the superintendent of schools in a central depository ap-

proved by the board. The local school governing board shall

provide ~ that such school activity funds be audited an-

nually. ~ The board may utilize the services of a certified

public accountant or the State Department of Audit ~ in

preparing such audit. ~ The State Auditor shall prescribe

a uniform system of accounting and financial reporting for

all school activity fund transactions to be implemented by

July 1, 1986;

58a

(u) To contract, on a shared savings, lease

or lease-purchase basis, for energy efficiency ser-

vices and/or equipment as provided for in Section

31-7-14, not to exceed ten (10) years.

SOURCES: Laws, 1982, ch. 466, § 1; 1985, ch.

466, § 1; 1985, ch. 493, § 3, eff from and after

July 1, 1985.

(u) To contract, on a shared savings, lease or lease-

purchase basis, for energy efficiency services and/or equip-

ment as provided for in Section 31-7-14, not to exceed ten

(10) years.

(v) To maintain accounts and issue pay certificates on

school food service bank accounts; and

(wXi) To lease a school building from an_ individual,

partnership, nonprofit corporation or a private for-profit

corporation for the use of such school district, and to ex-

pend funds therefor as may be available from any non-

minimum program sources. The school board of the school

district desiring to lease a school building shall declare by

resolution that a need exists for a school building and that

the school district cannot provide the necessary funds to

pay the cost or its proportionate share of the cost of a

school building required to meet the present needs. The

resolution so adopted by the school board shall be pub-

lished once each week for three (3) consecutive weeks in

a_ newspaper having a general circulation in the school

district involved, with the first publication thereof to be

made not less than thirty (30) days prior to the date upon

which the school board is to act on the question of leasing

a_ school building. If no petition requesting an election is

filed prior to such meeting as hereinafter provided, then

the school board may, by resolution spread upon its min-

utes, proceed to lease a school building. If at any time

prior to said meeting a petition signed by not less than

a d

59a

twenty percent (20%) or fifteen hundred (1500}, whichever

is less, of the qualified electors of the school district in-

volved shall be filed with the school board requesting that

an election be called on the question, then the school board

shall, not later than the next regular meeting, adopt a

resolution calling an election to be held within such school

district upon the question of authorizing the school board

to lease a school building. Such election shall be called and

held, and notice thereof shall be given, in the same manner

for elections upon the questions of the issuance of the

bonds of school districts, and the results thereof shall be

certified to the school board. If at least three-fifths (3/5)

of the qualified electors of the school district who voted

in such election shall vote in favor of the leasing of a

school building, then the school board shall proceed to lease

a school building. The term of the lease contract shall not

exceed twenty (20) years, and the total cost of such lease

shall be either the amount of the lowest and best bid

accepted by the school board after advertisement for bids

or an amount not to exceed the current fair market value

of the school building as determined by the averaging of

at least two (2) appraisals by members of the American

Institute of Real Estate Appraisers or the Society of Real

Estate Appraisers. The term ‘‘school building’’ as used in

this item (w) shall be construed to mean any building or

buildings used for classroom purposes in connection with

the operation of schools and shall include the site therefor,

necessary support facilities, and the equipment thereof and

appurtenances thereto such as heating facilities, water sup-

ply, sewage disposal, landscaping, walks, drives and play-

grounds. The term “‘lease”’ as used in this item (wi) may

include a lease/purchase contract.

(ii) If two (2) or more school districts propose to

enter into a lease contract jointly, then joint meetings of

the school boards having control may be held but no action

taken shall be binding on any such school district unless

the question of leasing a school building is approved in

60a

each participating school district under the procedure here-

inabove set forth in item (w\i). All of the provisions of

item (wXi) regarding the term and amount of the lease

contract shall apply to the school boards of school districts

acting jointly. Any lease contract executed by two (2) or

more school districts as joint lessees shall set out the

amount of the aggregate lease rental to be paid by each,

which may be agreed upon, but there shall be no right of

occupancy by any lessee unless the aggregate rental is

paid as stipulated in the lease contract. All rights of joint

lessees under the lease contract shall be in proportion to

the amount of lease rental paid by each.

(x) To borrow such funds as may be reasonable and

necessary from the federal government, the State of Mis-

sissippi or any political subdivision or entity thereof, or

any other governmental agency, public interest corpora-

tion, or nonprofit entity established or operated to aid

school districts in asbestos removal, to be repaid out of

any non-minimum program funds; provided, however, that

the grant of authority shall in no way be construed to

require said boards of trustees to remove asbestos material

or substances from any facilities under their control, nor

shall there be any liability to said school districts or boards

for the failure to so remove such asbestos materials.

6la

(From and after July 1, 1987, this section shall read as

follows:)

37-7-301. The school boards of all school districts shall.

have the following powers, authority and duties in addition

to all others imposed or granted by law, to-wit:

(a) To organize and operate the schools of the district

and to make such division between the high school grades

and elementary grades as, in their judgment, will serve

the best interests of the school; -

(b) To introduce public school music, art, manual train-

ing and other special subjects into either the elementary

or high school grades, as the board ~ shall deem proper;

property and to manage, control and care for same, both

during the school term and during vacation;

(d) To have responsibility for the erection, repairing

and equipping of school facilities and the making of nec-

essary school improvements;

(e) To suspend or to expel a pupil for misconduct in

the school, upon school buses, on the road to and from

school, during recess or upon the school playgrounds, and

to delegate such authority to the appropriate officials of of

the school district;

(f) To visit ~ schools in the district, in their discretion,

in a body ~ for the purpose of determining what can be

done for the improvement of the schoo! in a general way;

(g) To support, within reasonable limits, the super-

intendent, administrative superintendent, principal and

teachers where necessary for the proper discipline of the

school;

(h) To exclude from the schools students with what

appears to be infectious or contagious diseases; provided,

however, such student may be allowed to return to school

62a

upon presenting a certificate from a public health officer

or duly licensed physician that the student is free from

such disease;

(i) To require those vaccinations specified by the State

Health Officer as provided in Section 41-23-37, Mississippi

Code of 1972;

(j) To see that all necessary utilities and services are

provided in the schools at all times when same are needed;

(k) To authorize the use of the school buildings and

grounds for the holding of public meetings and gatherings

of the people under such regulations as may be prescribed

by said board;

(1) To prescribe and enforce rules and regulations not

inconsistent with law or with the regulations of the State

Board of Education for their own government and for the

government of the schools, and to transact their business

at regular and special meetings called and held in the

manner provided by law;

(m) To maintain and operate all of the schools under

their control for such length of time during the year as

may be required;

(n) To enforce in the schools the courses of study and

the use of the textbooks prescribed by the proper

authorities;

(0) To make orders directed to the ~ superintendent

of ~ schools or administrative superintendent for the is-

suance of pay certificates for lawful purposes on any avail-

able funds of the district and to have full control of the

receipt, distribution, allotment and disbursement of all

funds provided for the support and operation of the schools

of such school district whether such funds be derived from

state appropriations, local ad valorem tax collections, or

otherwise;

63a

(p) To select all school district personnel in the man-

ner provided by law;

(q) To provide and regulate athletic pee and

other school activities;

(r) To join, in their discretion, ~ any association of

school boards and other public school related organizations,

and to pay from local funds other than minimum foun-

dation funds, any membership dues;

(s) To expend local school activity funds, or other

available school district funds, other than minimum edu-

cation program funds, for the purposes prescribed under

this paragraph. ‘‘Activity funds” shall mean all funds re-

ceived by school officials in all school districts paid or

collected to participate in any school activity, such activity

being part of the school program and partially financed

with public funds or supplemented by public funds. The

term ‘activity funds’ shall not include any funds raised

and/or expended by any organization unless deposited with

existing activity funds, regardless of whether the funds

were raised using school facilities. Organizations shall not

be required to make any payment to any school for the

use of any school facility if, in the discretion of the local

school governing board, the organization’s function shall

be deemed to be beneficial to the official or extracurricular

programs of the school. For the purposes of this provision,

the term “organization” shall not include any organization

subject to the control of the local school governing board.

Activity funds may only be expended for any necessary

expenses or travel costs, including advances, incurred by

students and their chaperones in attending any in-state or

out-of-state school-related programs, conventions or sem-

inars and/or any commodities, equipment, travel expenses,

purchased services or school supplies which the local school

governing board, in their discretion, shall deem beneficial

to the official or extracurricular programs of the district,

including items which may subsequently become the per-

64a

sonal property of individuals, including yearbooks, athletic

apparel, book covers and trophies. Activity funds may be

used to pay travel expenses of school district personnel.

The local school governing board shall be authorized and

empowered to promulgate rules and regulations specifically

designating for what purposes school activity funds may

be expended. The local school governing board shall pro-

vide (a) that such school activity funds shall be maintained

and expended by the principal of the school generating

the funds in individual bank accounts, or (b) that such

school activity funds shall be maintained and expended by

the superintendent of schools in a central depository ap-

proved by the board. The local school governing board shall

provide that such school activity funds be audited annually.

The board may utilize the services of a certified public

accountant or the State Department of Audit in preparing

such audit. The State Auditor shall prescribe a uniform

system of accounting and financial reporting for all school

activity fund transactions to be implemented by July 1,

1986;

(t) To contract, on a shared savings, lease or lease-

purchase basis, for energy efficiency services and/or equip-

ment as provided for in Section 31-7-14, not to exceed ten

(10) years.

(u) To maintain accounts and issue pay certificates on

school food service bank accounts; and

(vXi) To lease a school building from an individual,

partnership, nonprofit corporation or a private for-profit

corporation for the use of such school district, and to ex-

pend funds therefor as may be available from any non-

minimum program sources. The school board of the school

district desiring to lease a school building shall declare by

resolution that a need exists for a school building and that

the school district cannot provide the necessary funds to

pay the cost or its proportionate share of the cost of a

school building required to meet the present needs. The

65a

resolution so adopted by the school board shall be pub-

lished once each week for three (3) consecutive weeks in

a newspaper having a general circulation in the school

district involved, with the first publication thereof to be

made not less than thirty (30) days prior to the date upon

which the school board is to act on the question of leasing

a school building. If no petition requesting an election is

filed prior to such meeting as hereinafter provided, then

the school board may, by resolution spread upon its min-

utes, proceed to lease a school building. If at any time

prior to said meeting a petition signed by not less than

twenty percent (20%) or fifteen hundred (1500), whichever

is less, of the qualified electors of the school district in-

volved shall be filed with the school board requesting that

an election be called on the question, then the school board

shall, not later than the next regular meeting, adopt a

resolution calling an election to be held within such school

district upon the question of authorizing the school board

to lease a school building. Such election shall be called and

held, and notice thereof shall be given, in the same manner

for elections upon the questions of the issuance of the

bonds of school districts, and the results thereof shall be

certified to the school board. If at least three-fifths (3/5)

of the qualified electors of the school district who voted

in such election shall vote in favor of the leasing of a

school building, then the school board shall proceed to lease

a school building. The term of the lease contract shall not

exceed twenty (20) years, and the total cost of such lease

shall be either the amount of the lowest and best bid

accepted by the school board after advertisement for bids

or an amount not to exceed the current fair market value

of the school building as determined by the averaging of

at least two (2) appraisals by members of the American

Institute of Real Estate Appraisers or the Society of Real

Estate Appraisers. The term “school building’’ as used in

this item (v) shall be construed to mean any building or

buildings used for classroom purposes in connection with

66a

the operation of schools and shall include the site therefor,

necessary support facilities, and the equipment thereof and

appurtenances thereto such as heating facilities, water sup-

ply, sewage disposal, landscaping, walks, drives and play-

grounds. The term ‘“‘lease’’ as used in this item (v\i) may

include a lease/purchase contract.

(ii) If two (2) or more school districts propose to

enter into a lease contract jointly, then joint meetings of

the school board having control may be held but no action

taken shail be binding on any such school district unless

the question of leasing a school building is approved in

each participating school district under the procedure here-

inabove set forth in item (vi). All of the provisions of

item (vi) regarding the term and amount of the lease

contract shall apply to the school boards of school districts

acting jointly. Any lease contract executed by two (2) or

more school districts as joint lessees shall set out the

amount of the aggregate lease rental to be paid by each,

which may be agreed upon, but there shall be no right of

occupancy by any lessee unless the aggregate rental is

paid as stipulated in the lease contract. All rights of joint

lessees under the lease contract shall be in proportion to

the amount of lease rental paid by each.

(w) To borrow such funds as may be reasonable and

“necessary from the federal government, the State of Mis-

sissippi or any political subdivision or entity thereof, or

any other governmental agency, public interest corpora-

tion, or nonprofit entity established or operated to aid

school districts in asbestos removal, to be repaid out of

any non-minimum program funds; provided, however, that

the grant of authority shall in no way be construed to

require said boards of trustees to remove asbestos material

or substances from any facilities under their control, nor

shall there be any liability to said school districts or boards

for the failure to so remove such asbestos materials.

67a

(x) To contract, on a shared savings, lease or lease-

purchase basis, for energy efficiency services and/or equip-

ment as provided for in Section 31-7-14, not to exceed ten

(10) years;

(y) To employ and fix the duties and compensation of

such clerical help, other non-instructional personnel deemed

necessary pursuant to the recommendation of the super-

intendent of schools or the administrative superintendent;

(z) To employ and fix the duties and compensation of

such legal counsel as deemed necessar:’; and

res |

(aa) Subject *> rules and regulations of the State

Board of Education, to purchase, own and operate trucks,

vans and other motor vehicles, which shall bear the proper

identification required by law.

68a

§ 37-7-409. Funds for joint construction of

buildings or operation of schools.

(1) When any school districts shall be author-

ized to unite, join and cooperate in the construc-

tion, erecting and equipping of a joint school

building or school facility or in the joint operation

of a school erected, constructed and equipped en-

tirely by one of such districts, any school district

so authorized may, with the prior consent and

approval of the state educational finance com-

mission, expend in the construction, erecting and

equipping of such joint school building or the

school building which is to be jointly operated

any available state public school building funds,

or any available funds derived from bonds issued

by such school district for such purpose, or any

other funds which are otherwise available to such

school district for such purpose, as is set forth

and stipulated in the agreement entered into be-

tween the school districts involved. Except as is

herein specifically provided ail provisions of law

relative to the construction, erecting and equip-

ping of school buildings, the acquisition of land

therefor, and the expenditure of funds for such

purposes, shall be fully applicable to any joint

school building which has been or is to be con-

structed, erected and equipped or which is to be

operated jointly pursuant to an agreement en-

tered into under the provisions of section 37-7-

405.

SECTION 25. Section 37-7-409, Mississippi Code of 1972,

is amended as follows: |

37-7-409. (1) When any schoo! districts shall be author-

ized to unite, join and cooperate in the construction, erect-

ing and equipping of a joint school building or school facility

ae iro ters Be ory

69a

or in the joint operation of a school erected, constructed

and equipped entirely by one of such districts, any school

district so authorized may, with the prior consent and

approval of the State Board of Education, expend in the

construction, erecting and equipping of such joint school

building or the school building which is to be jointly op-

erated any available state public school building funds, or

any available funds derived from bonds issued by such

school district for such purpose, or any other funds which

are otherwise available to such school district for such

purpose, as is set forth and stipulated in the agreement

entered into between the school districts involved. Except

as is herein specifically provided all provisions of law rel-

ative to the construction, erecting and equipping of school

buildings, the acquisition of land therefor, and the ex-

penditure of funds for such purposes, shall be fully appli-

cable to any joint school building which has been or is to

be constructed, erected and equipped or which is to be

operated jointly pursuant to an agreement entered into

under the provisions of Section 37-7-405.

70a

(2) When a contract is made and entered into

for the construction, erecting and equipping of

joint school facilities or the joint operation of

school facilities erected, constructed and equipped

entirely by one of such districts, as provided in

section 37-7-405, and where such contract has

been approved by the state educational finance

commission, then any funds which are available

for the lawful operating and incidental expenses

of a school district may be expended by such

school district as provided and stipulated in the

agreement entered into between the school dis-

tricts involved (including, but not limited to, funds

for payment of tuition, funds payable as a rental

upon the use of the building and equipment, and

funds for maintenance and incidental costs of op-

eration). The board of supervisors, upon receipt

of a certified copy of an order adopted by the

board of trustees of any school district in the

county requesting same, or the governing

authorities of the municipality, upon receipt of a

certified copy of an order adopted by the board

of trustees of a municipal separate school district

requesting same, shall at the same time and in

the same manner as other ad valorem taxes are

levied, levy an annual tax in the amount fixed

in such order as may be required to meet any

monetary obligation incurred under such con-

tract. Notwithstanding any statute to the con-

trary, such number of mills as is necessary to

defray any such contractual obligation shall be

levied. However, this provision shall in no way

be construed to increase the number of mills now

reimbursable under the homestead exemption

laws of the State of Mississippi

Tla

(2) When a contract is made and entered into for the

construction, erecting and equipping of joint school facil-

ities or the joint operation of school facilities erected, con-

structed and equipped entirely by one of such districts, as

provided in Section 37-7-405, and where such contract has

been approved by the State Board of Education, then any

funds which are available for the lawful operating and

incidental expenses of a school district may be expended

by such school district as provided and stipulated in the

agreement entered into between the school districts in-

volved (including, but not limited to, funds for payment

of tuition, funds payable as a rental upon the use of the

building and equipment, and funds for maintenance and

incidental costs of operation). The levying authority for

the school district, as defined in Section 37-57-1, upon

receipt of a certified copy of an order adopted by the

school board »~ of the school district in the county re-

questing same, shall at the same time and in the same

manner as other ad valorem taxes are levied, levy an

annual tax in the amount fixed in such order as may be

required to meet any monetary obligation incurred under

such contract. Notwithstanding any statute to the con-

trary, such number of mills as is necessary to defray any

such contractual obligation shall be levied. However, this

provision shall in no way be construed to increase the

number of mills now reimbursable under the homestead

exemption laws of the State of Mississippi.

72a

(3) Before levying any taxes under the provi-

sions of this section, which levy would exceed the

limitations otherwise provided upon the number

of mills which may be levied for school purposes,

the board of supervisors shall adopt a resolution

declaring its intention so to do, stating the

amount of millage to be levied and the purpose

for which the proceeds are to be used, and the

date upon which said board of supervisors pro-

poses to make such levy. Such resolution shall be

published once a week for not less than three

consecutive weeks, in at least one newspaper

published in the county. The first publication of

such resolution shall be made not less than

twenty-one days prior to the date fixed in such

resolution for the levying of taxes, and the last

publication shall be made not more than seven

days prior to such date. If within fifteen days

after the final publication of said resolution, a

petition signed by at least twenty percent of the

qualified electors of said county, requesting an

election on the proposition of levying such ad-

ditional taxes for schoo! purposes is filed with

the clerk of the board of supervisors, such levy

shall not be made until an election shall be held

to determine whether or not a majority of qual-

ified electors of said county shall favor the ad-

ditional levy for school purposes. If a majority of

the qualified electors of said county voting in

such election approves the levying of the addi-

tional taxes, then the levy shall be made within

the manner, form and time as required by law.

If no such petition if filed with the clerk of the

board of supervisors, then said levy shall be made

by the board of supervisors in the manner, form

and time as required by law. If any election is

held under the provisions of this section, said

73a

election shall be under the supervision of the

county election commission in the manner, form

and time as required by law for conducting gen-

eral elections in this state.

SOURCES: Codes, 1942, § 6328-74; Laws, 1956,

ch. 266, § 4; 1960, ch. 301, § 3; 1968, ch. 386,

eff from and after passage (approved June

24, 1968).

(3) Before levying any taxes under the provisions of this

section, which levy would exceed the limitations otherwise

provided » for school purposes, the levying authority for

the school district, as defined in Section 37-57-1, shall adopt

a resolution declaring its intention so to do, stating the

amount of millage to be levied and the purpose for which

the proceeds are to be used, and the date upon which it

proposes to make such levy. Such resolution shall be pub-

lished once a week for not less than three (3) consecutive

weeks, in at least one (1) newspaper having general cir-

culation in the school district. The first publication of such

resolution shall be made not less than twenty-one (21) days

prior to the date fixed in such resolution for the levying

of taxes, and the last publication shall be made not more

than seven (7) days prior to such date. If within fifteen

(15) days after the final publication of said resolution, a

petition signed by the lesser of fifteen hundred (1500) or

twenty percent (20%) of the qualified electors of said school

district, requesting an election on the proposition of levy-

ing such additional taxes for school purposes is filed with

the clerk of the board of supervisors or the clerk of the

municipality, as the case may be, such levy shall not be

made until an election shall be held to determine whether

or not three-fifths (3/5) of qualified electors of said school

district shall favor the additional levy for school purposes.

If three-fifths (3/5) of the qualified electors of said school

district voting in such election approves the levying of the

T4a

additional taxes, then the levy shall be made within the

manner, form and time as required by law. If no such

petition is filed with the clerk as herein provided, then

said levy shall be made by the levying authority in the

manner, form and time as required by law. If any election

is held under the provisions of this section, said electicn

shall be under the supervision of the county or municipal

election commission, as the case may be, in the manner,

form and time as required by law for conducting general

elections in this state.

SECTION 47. Sections 37-7-601, 37-7-603, 37-7-605, 37-

7-607, 37-7-609, 37-7-611, 37-7-613, 37-7-615, 37-7-617, 37-

7-619, 37-7-621, 37-7-623, 37-7-625, 37-7-627. 37-7-629, 37-

7-631, 37-7-633, 37-7-635, 37-7-637, 37-7-639, 37-7-641, 37-

7-643 and 37-7-645, Mississippi Code of 1972, which pro-

vide for the creation and operation of municipal separate

school districts, are hereby repealed.

75a

76a

§37-7-103. Abolition, alteration or creation of

districts by county board of education.

After school districts have been reconstituted

and created in the manner prescribed by Article

1 of this chapter, the county board of education

shall have full jurisdiction, power, and authority,

at any regular meeting thereof or at any special

meeting called for that purpose, to abolish any

existing district other than a municipal separate

school district, to change or alter the boundaries

of any such district, to create any new districts,

and to otherwise create, alter, or abolish any of

the school districts of such county, other than

the municipal separate school districts. In addi-

tion thereto, with the consent of the board of

trustees of the municipal separate school district

involved, the county board of education may add

to such municipal separate school districts any

part of the county adjoining same, and with the

consent of the board of trustees of the municipal

separate school district involved, the county board

may detach territory from such municipal sepa-

rate school district and annex same to an ad-

joining district in the county school system.

SOURCES: Codes, 1942, § 6274-06; Laws, 1953,

Ex Sess, ch. 16, § 6, eff from and after July

1, 1954.

SECTION 52. Section 37-7-103, Mississippi Code of 1972,

is amended as follows:

37-7-103. From and after July 1, 1987, the school board

of any school district shall have full jurisdiction, power

and authority, at any regular meeting thereof or at any

special meeting called for that purpose, to abolish such

existing district, or to reorganize, change or alter the

77a

boundaries of any such district. ~ In addition thereto, with

the consent of the school board vy of the » school district

involved, the school board ~ may add to such vy school dis-

trict ~ any part of the school district adjoining same, and

with the consent of the school board - of the » school

district involved, ~ may detach territory from such school

district and annex same to an adjoining district. -

78a

§37-7-105. Procedure to abolish, alter or create

a district in absence of petition filed by elec-

torate.

In cases where the county board of education

abolishes, alters, or creates a school district with-

out a petition therefor as is otherwise provided

in sections 37-7-107, 37-7-109, the county board

of education shall publish the order creating, al-

tering, or abolishing such district or. districts in

some newspaper published and having a general

circulation in such county once each week for

three consecutive weeks, which said order shall

be duly certified by the president of said county

board of education. If no newspaper be published

in said county, then such order shall be published

for the required time in some newspaper having

a genera! circulation therein, and, in addition, a

copy of said order shall be posted for the required

time at three public places in the county. The

order so published shall contain a provision giving

notice that said order shall become final thirty

days after the first publication of said notice un-

less a petition is filed protesting against same

within such time. In the event no such petition

be filed, the said order shall become final at said

time. However, in the event twenty per cent of

the qualified electors of any school district cre-

ated, altered, or abolished by such order shall file

a petition with the county board of education,

within thirty days after the first publication of

said notice, protesting against the creation, al-

teration, or abolition of such district, then an

election shall be called and held, on order of the

county board of education, by the county election

commission, after publication of legal notice of

such election, which said election shall be held

within thirty days after the first publication of

7Sa

the notice of such election. At such election the

question shall be submitted to the qualified elec-

tors of the district or districts affected and from

which a petition is filed as to whether or not

such district or districts shall be created, altered,

or abolished as provided in the said order of the

county board of education. If a majority of those

voting in said election in each district affected

and from which a petition is filed shall vote in

favor of the order of the county board of edu-

cation then such order shall become final. If a

majority of those voting in said election in any

district from which a petition is filed shall vote

against the order of the county board of educa-

tion then such order shall be void and of no effect

and no further attempt to make the proposed

change in such district shall be made for a period

of at least two years after the date of said elec-

tion.

SOURCES: Codes, 1942, § 6274-06; Laws, 1953,

Ex Sess, ch. 16, § 6, eff from and after July

1, 1954.

SECTION 53. Section 37-7-105, Mississippi Code of 1972,

is amended as follows:

37-7-105. In cases where the school board y abolishes,

alters or reorganizes a school district without a petition

therefor as is otherwise provided in Sections 37-7-107 and

37-7-109, the school board y shall publish the order reorg-

anizing, altering or abolishing such district or districts in

some newspaper published and having a general circulation

in such district(s) once each week for three (3) consecutive

weeks, which said order shall be duly certified by the

president of said school board. ~ If no newspaper be pub-

lished in said school district, then such order shal! be pub-

lished for the required time in some newspaper having a

80a

general circulation therein, and, in addition, a copy of said

order shall be posted for the required time at three (3)

public places in the school district. The order so published

shall contain a provision giving notice that said order shall

become final thirty (30) days after the first publication of

said notice unless a petition is filed protesting against

same within such time. In the event no such petition be

filed, the said order shall become final at said time. How-

ever, in the event twenty percent (20%) of the qualified

electors of any school district reorganized, altered or abol-

ished by such order shall file a petition with the school

board, ~ within thirty (30) days after the first publication

of said notice, protesting against the reorganization, al-

teration or abolition of such district, then an election shall

be cailed and held, on order of the school board, » by the

county election commission(s), after publication of legal no-

tice of such election, which said election shall be held within

thirty (30) days after the first publication of the notice of

such election. At such election the question shall be sub-

mitted to the qualified electors of the district or districts

affected and from which a petition is filed as to whether

or not such district or districts shall be reorganized, al-

tered or abolished as provided in the said order of the

school board. » If a majority of those voting in said elec-

tion in each district affected and from which a petition is

filed shall vote in favor of the order of the school

board ~ then such order shall become final. If a majority

of those voting in said election in any district from which

a petition is filed shall vote against the order of the school

board ~ then such order shall be void and of no effect and

no further attempt to make the proposed change in such

district shall be made for a period of at least two (2) years

after the date of said election.

8la

§37-7-107. Procedure to abolish district pur-

suant to petition filed by electorate.

If a petition signed by two-thirds of the qual-

ified electors of an existing school district shall

be filed with the county board of education re-

questing that such district be abolished, then the

county board of education shall enter an order

abolishing such school district. Such order shall

become final without publication thereof upon

such date as may be fixed by the county board

of education but not later than the first day of

July next succeeding the date of such order.

SECTION 54. Section 37-7-107, Mississippi Code of 1972,

is amended as follows:

37-7-107. If a petition signed by two-thirds (2/3) of the

qualified electors of an existing school district shall be filed

with the school board » requesting that such district be

apolished, then the school board » shall enter an order

abolishing such school district. Such order shall become

final without publication thereof upon such date as may

be fixed by the school board » but not later than July 1

next succeeding the date of such order.

82a

§37-7-109. Procedure to alter district pursuant

to petition filed by electorate.

If a petition signed by a majority of the qual-

ified electors of specifically described territory of

an existing school district shall be filed with the

county board of education requesting that said

described territory be taken from such existing

district and annexed to an adjacent district, the

county board of education, after consideration

thereof, and with the consent and approval of

the board of trustees of the district to which such

territory is to be annexed, shall have the power

and authority, in its discretion, to take such ter-

ritory from the existing district and annex same

to the adjacent district. However, before doing

so, the county board of education must find and

determine that the taking of the territory from

the existing school district will not seriously in-

terfere with or impair the efficiency of such

school district, and all orders adopted under the

provisions of this section shall be invalid unless

such finding and determination be made. Any or-

der adopted under the provisions of this section

shall become final without publication thereof

upon such date as may be fixed by the county

board of education but not later than the first

day of July next succeeding the date of such

order. The taking of territory from existing school

districts under the provisions of this section shall

not release the property in such territory from

assessment and liability for the payment of the

oustanding bonds or other indebtedness of the

district from which the territory is taken and it

shall be the duty of the board of supervisors to

continue to levy taxes on such territory in an

amount sufficient to pay such territory’s pro rata

part of all outstanding bonds or other indebt-

No det wt mein |

83a

edness existing at the time the territory is taken

from such district. In addition thereto, the ter-

ritory involved shall become liable for its pro rata

part of the outstanding bonds or other indebt-

edness of the district to which it is annexed and

taxes shall be levied thereon for the payment

thereof to the same extent as taxes are levied

upon the other territory of such district.

SECTION 55. Section 37-7-109, Mississippi Code of 1972,

is amended as follows:

37-7-109. If a petition signed by a majority of the qual-

ified electors of specifically described territory of an ex-

isting school district shall be filed with the school

board ~ requesting that said described territory be taken

from such existing district and annexed to an adjacent

district, or reorganized into a new school district, the said

school board, » after consideration thereof, and with the

consent and approval of the school board - of the district

to which such territory is to be annexed, if such be the

case, shall have the power and authority, in its discretion,

to take such territory from the existing district and annex

same to the adjacent district, or to create a new school

district of such specifically described territory. However,

before doing so, the school board ~ must find and deter-

mine that the taking of the territory from the existing

school district will not seriously interfere with or impair

the efficiency of such school district, and all orders adopted

under the provisions of this section shall be invalid unless

such finding and determination be made. Any order

adopted under the provisions of this section shall become

final without publication thereof upon such date as may

be fixed by the school board but not later than the first

day of July next succeeding the date of such order. The

taking of territory from existing school districts under the

provisions of this section shall not release the property in

84a

such territory from assessment and liability for the pay-

ment of the oustanding bonds or other indebtedness of the

district from which the territory is taken and it shall be

the duty of the board of supervisors to continue to levy

taxes on such territory in an amount sufficient to pay such

territory’s pro rata part of all outstanding bonds or other

indebtedness existing at the time the territory is taken

from such district. In addition thereto, the territory in-

volved shall become liable for its pro rata part of the

outstanding bonds or other indebtedness of the district to

which it is annexed and taxes shall be levied thereon for

the payment thereof to the same extent as taxes are levied

upon the other territory of such district.

85a

ave a

§37-7-111. Effect of abolition on indebtedness

of district; territory of district shall be an-

nexed to another district.

When any school district is abolished under the

provisions of sections 37-7-105, 37-7-107, the ab-

olition thereof shall not impair or release the

property of such school district from liability for

the payment of the bonds or other indebtedness

of such district and it shall be the duty of the

board of supervisors of said county to levy taxes

on the property of said district so abolished from

year to year according to the terms of such in-

debtedness until same shall be fully paid. No ex-

isting school district shall be abolished unless the

territory comprising such district shall be an-

nexed to another district by the county board of

education in the same order abolishing the former

district.

SOURCES: Codes, 1942, § 6274-06; Laws, 1953,

Ex Sess, ch. 16, § 6, eff from and after July

1, 1954.

SECTION 56. Section 37-7-111, Mississippi Code of 1972,

is amended as follows:

37-7-111. When any school district is abolished or altered

under the provisions of this act, the abolition or alteration

thereof shall not impair or release the property of such

school district from liability for the payment of the bonds

or other indebtedness of such district and it shall be the

duty of the board of supervisors of said county to levy

taxes on the property of said district so abolished or al-

tered from year to year according to the terms of such

indebtedness until same shall be fully paid. No existing

school district shall be abolished unless the territory com-

86a

prising such district shall be annexed to another dis-

trict ~ in the same order abolishing the former district.

87a

§37-7-113. Necessity of approval by state edu-

| cational finance commission.

Notwithstanding any of the foregoing provi-

sions of sections 37-7-103 to 37-7-111, it is hereby

expressly provided that no order of the county

board of education creating, abolishing, or alter-

ing any school district, whether same be taken

with or without a petition therefor, shall be final

unless and until said proposed creation, altera-

tion, or abolition shall be submitted to and ap-

proved by the state educational finance

commission. In the event the proposed action shall

be disapproved by the state educational finance

commission, the same shall be void and of no

effect. In the event of the filing of any petitions

with the county board of education under the

provisions of said sections, the county board of

education shall verify same and make a deter-

mination of whether same are signed by the req-

uisite number of qualified electors. The finding

of the county board of education upon such ques-

tion shall be final and conclusive for the purpose

of the submission of said matter to the state

educational finance commission and the approval

or disapproval of the action by said commission.

SOURCES: Codes, 1942, § 6274-06; Laws, 1953,

Ex Sess, ch. 16, § 6, eff from and after July

1, 1954.

SECTION 57. Section 37-7-113, Mississippi Code of 1972,

is amended as follows:

37-7-113. Notwithstanding any of the foregoing provi-

sions, ~ it is hereby expressly provided that no order of

the school board y reorganizing, abolishing or altering any

school district, whether same be taken with or without a

88a

petition therefor, shall be final unless and until said pro-

posed reorganization, alteration or abolition shall be sub-

mitted to and approved by the State Board of Education.

In the event the proposed action shall be disapproved by

the State Board of Education, the same shall be void and

of no effect. In the event of the filing of any petitions

with the school board y under the provisions of said sec-

tions, the school board y shall verify same and make a

determination of whether same are signed by the requisite

number of qualified electors. The finding of the school

board ~ upon such question shall be final and conclusive

for the purpose of the submission of said matter to the

State Board of Education and the approval or disapproval

of the action by said board.

89a

§37-41-95. Manner of issuance and form thereof.

All such notes issued by a county shall be

signed by the president of the board of super-

visors and countersigned by the clerk of the board

of supervisors, and the seal of the county shall

be impressed on each note as it is issued. All

notes issued for a municipal separate school dis-

trict or special municipal separate school district

shall be signed by the mayor of the municipality

and shall be countersigned by the clerk of the

municipality, and the seal of the municipality shall

be affixed thereto. The interest on said notes may

be evidenced by proper coupons attached thereto

and such coupons may bear only the facsimile

signatures of the president of the board of su-

pervisors and the clerk thereof, or the mayor of

the municipality and the clerk of the municipality,

as the case may be. Such notes shall be issued

in such form and in such denominations as the

board of supervisors or the governing authorities

of the municipality shall determine. All of said

notes shall be registered by the clerk of the board

of supervisors or the clerk of the municipality in

a book kept by him in his office for that purpose.

Where bonds are issued by the board of su-

pervisors or the governing authorities of the mu-

nicipality, as the case may be, the manner of

issuance and the form thereof shall be in com-

pliance with the provisions of sections 19-9-1

through 19-9-31, or sections 21-33-301 through

21-33-329, whichever shall be applicable.

SOURCES: Laws, 1982, ch. 354, § 26, eff from

and after July 1, 1982.

SECTION 153. Section 37-41-95, Mississippi Code of

1972, is amended as follows:

90a

37-41-95. All such notes issued by a school district shall

be signed by the president of the school board ~ and

countersigned by the superintendent of schools, and the

seal of the school district shall be impressed on each note

as it is issued. ~ The interest on said notes may be evi-

denced by proper coupons attached thereto and such cou-

pons may bear only the facsimile signatures of the

president of the school board » and the superintendent of

schools. Such notes shall be issued in such form and in

such denominations as the school board » shall determine.

All of said notes shall be registered by the superintendent

of schools ~ in a book kept by him in his office for that

purpose.

Where bonds are issued by the school board ~ the

manner of issuance and the form thereof shall be in com-

pliance with the provisions of Sections 37-59-1 through 37-

59-45, except that such bonds may be issued upon approval

of three-fifths (3/5) of the electors voting in any election

held for the purpose of issuing such bonds.

9la

¥ §37-57-105. Levy by board of supervisors for

support of special municipal separate school

district; levy to cover expenses, funds for

which are not provided by minimum program

fund allotments.

(1) In addition to the taxes levied under sec-

tions 37-7-739 and 37-57-3, the county board of

supervisors, upon receipt of a certified copy of

an order adopted by the board of trustees of any

special municipal separate school district request-

ing a tax levy for the support of the schoo! dis-

trict, and the municipal governing authorities,

upon receipt of a certified copy of an order

adopted by the board of trustees of any municipal

separate school district requesting a tax levy for

the support of the school district, shall, at the

same time and in the same manner as other ad

valorem taxes are levied, levy an annual ad va-

lorem tax in the amount fixed in such order upon

all of the taxable property of such school district;

however, such mandatory levy, including the

taxes levied under sections 37-7-739 and 37-57-3,

shall not exceed the millage limitation set forth

in section 37-57-107, but the county board of su-

pervisors and the municipal governing authorities,

respectively, may, in their discretion, levy an ad-

ditional ad valorem tax for the support of such

school districts which shall not be subject to any

millage limitation, but the cumulative ad valorem

taxes levied for the support of such school dis-

tricts shall be subject to the ten percent (10%)

increase limitation set forth in section 37-57-107.

The proceeds of such tax levy shall be placed in

the respective county or municipal depository to

the credit of the school district and shall be ex-

pended in the manner provided by law for the

purpose of supplementing teachers’ salaries, ex-

92a

tending school terms, purchasing furniture, sup-

plies and materials, and for all other lawful

operating and incidental expenses of such school

district, funds for which are not provided by min-

imum program fund allotments.

(2) In addition to the taxes levied under section

37-57-1, the county board of supervisors, upon

receipt of a certified copy of an order adopted

by the board of trustees of any school district in

the county school system requesting a tax levy

for the support of the school district, may, at the

same time and in the same manner as other ad

valorem taxes are levied, levy an annual ad va-

lorem tax in the amount fixed in such order upon

all of the taxable property of such school district.

The proceeds of such tax levy shall be placed in

the county depository to the credit of the school

district and shal! be expended in the manner pro-

vided by law for the purpose of supplementing

teachers’ salaries, extending school terms, pur-

chasing furniture, supplies and materials, and for

all other lawful operating and incidental expenses

of such school district, funds for which are not

provided by minimum program fund allotments.

When the tax is levied in a county which is

the home county of a line school district or upon

the territory of any school district located in two

(2) or more counties, the order of the county

board of education or board of trustees, as the

case may be, requesting the levying of such tax

shall be certified to the board of supervisors of

each of the counties involved, and each of the

board of supervisors shall levy the tax in the

manner specified herein. The taxes so levied shall

be collected by the tax collector of each of the

counties involved and remitted by the tax collec-

93a

tor to the county depository of the home county

to the credit of the school district involved.

SOURCES: Laws, 1983, ch. 471, § 23, eff from

and after July 1, 1983.

SECTION 168. Section 37-57-105, Mississippi Code of

1972, is amended as follows:

37-57-105. In addition to the taxes levied under Section

37-57-1, the levying authority for the school district, as

defined in Section 37-57-1, upon receipt of a certified copy

of an order adopted by the school board of the school

district ~ requesting an_ad valorem tax effort in dollars

for the support of the school district, shall, at the same

time and in the same manner as other ad valorem taxes

are levied, levy an annual ad valorem tax in the amount

fixed in such order upon all of the taxable property of

such school district. In making such levy, the levying au-

thority shall make allowance for anticipated delinquencies

and costs of collection so that the net amount of money

to be produced by such collection so that the net amount

of money to be produced by such levy shall be equal to

the amount which is requested by said school board. The

proceeds of such tax levy, excluding levies for the payment

of the principal of and interest on school bonds or notes,

shall be placed in the school depository to the credit of

the school district and shall be expended in the manner

provided by law for the purpose of supplementing teachers’

salaries, extending school terms, purchasing furniture, sup-

plies and materials, and for all other lawful operating and

incidental expenses of such school district, funds for which

are not provided by minimum program fund allotments.

When the tax is levied ~ upon the territory of any school

district located in two (2) or more counties, the order of

the school board ~ requesting the levying of such tax shall

be certified to the levying authority of each of the counties

94a

involved, and each of the levying authorities shall levy the

tax in the manner specified herein. The taxes so levied

shall be collected by the tax collector of the levying au-

thority involved and remitted by the tax collector to the

school depository of the home county to the credit of the

school district involved as provided above.

The aggregate receipts from ad valorem taxes levied for

school district purposes pursuant to this section and Sec-

tions 37-57-1 and 37-57-3 shall be subject to the increased

limitation under Section 37-57-107; however, if the ad va-

lorem tax effort in dollars requested by the school district

for the fiscal year exceeds the next preceding fiscal year’s

ad valorem tax effort in dollars by more than seven per-

cent (7%) but not more than ten percent (10%), then the

school board shall publish notice thereof once each week

for three (3) consecutive weeks in a newspaper having

general circulation in the school district involved, with the

first publication thereof to be made not less than thirty

(30) days prior to the May regular meeting of the school

board. If at any time prior to said meeting a petition

signed by not less than twenty percent (20%) or fifteen

hundred (1500), whichever is less, of the qualified electors

of the school district involved shall be filed with the school

board requesting that an election be called on the question

of exceeding the next preceding fiscal year’s ad valorem

tax effort in dollars by more than seven percent (7%) but

not more than ten percent (10%), then the school board

shall, not later than the next regular meeting, adopt a

resolution calling an election to be held within such school

district upon such question. The election shall be called

and held, and notice thereof shall be given, in the same

manner for elections upon the questions of the issuance

of the bonds of school districts, and the results thereof

shall be certified to the school board. The ballot shall con-

tain the language ‘‘For the School Tax Increase Over Seven

Percent (7%) and “‘Against the School Tax Increase Over

Seven Percent (7%).”’ If a majority of the qualified electors

95a

of the school district who voted in such election shall vote

in favor of the question, then the stated increase requested

by the school board shall be approved. For the purposes

of this paragraph, the revenue sources excluded from the

increase limitation under Section 37-57-107 shall also be

excluded from the limitation described herein in the same

manner as they are excluded under Section 37-57-107.

96a

§ 37-57-107. Limitation on increases of taxes

levied for school district purposes; disposi-

tion of excess revenues; ceiling on ad valo-

rem taxes for support of municipal separate

district and special municipal district.

(1) Beginning with the tax levy for the 1984

fiscal year and for each fiscal year thereafter,

the aggregate receipts from taxes levied for

school district purposes pursuant to section 37-

57-105 and sections 37-7-739, 37-57-1 and 37-57-

3 shall not exceed the aggregate receipts from

those sources during the next preceding fiscal

year plus an increase not to exceed ten percent

(10%). The additional revenue from the ad va-

lorem tax on any newly constructed properties

or any existing properties added to the tax rolls

or any properties previously exempt, which were

not assessed in the next preceding year may be

excluded from the ten percent (10%) increase lim-

itation set forth herein. Taxed levied for payment

of principal of and interest on general obligation

school bonds issued heretofore or hereafter shall

be excluded from the ten percent (10%) increase

limitation set forth herein. Any additional millage

levied to fund any new program mandated by the

legislature shall be excluded from the limitation

for the first year of the levy and included within

such limitation in any year thereafter.

The ten percent (10%) increase limitation pre-

scribed in this subsection may be increased an

additional amount only when the county board of

supervisors or municipal governing authorities, as

the case may be, has determined the need for

additional revenues and has held an election on

the question of raising the limitation prescribed

in this subsection. The limitation may be in-

creased only if a majority of the qualified electors

97a

in the school district vote in the election and if

a majority of those voting in the election shall

vote for the proposed increase. The resolution,

notice and manner of holding the election shall

be as prescribed by law for the holding of elec-

tions for the issuance of bonds by the respective

county board of supervisors or municipal govern-

ing authorities. Revenues collected for the fiscal

year in excess of the ten percent (10%) increase

limitation pursuant to an election shall be in-

cluded in the tax base for the purpose of deter-

mining aggregate receipts for which the ten

percent (10%) increase limitation applies for sub-

sequent fiscal years.

Except as otherwise provided for excess rev-

enues generated pursuant to an election, if rev-

enues collected as the result of the taxes levied

for the fiscal year pursuant to this section and

sections 37-7-739, 37-51-1 and 37-57-3 exceed the

increase limitation, then it shall be the mandatory

duty of the board of trustees of the school district

to deposit such excess receipts over and above

the increase limitation into a special account and

credit it to the fund for which the levy was made.

It will be the further duty of such board to hold

said funds and invest the same as authorized by

law. Such excess funds shall be calculated in the

budgets for the school districts for the purpose

for which such levies were made, for the suc-

ceeding fiscal year. Taxes imposed for the suc-

ceeding year shall be reduced by the amount of

excess funds available. Under no circumstances

shall such excess funds be expended during the

fiscal year in which such excess funds are col-

lected.

(2) Ad valorem taxes levied by the county board

of supervisors for the support of any special mu-

98a

nicipal separate school district pursuant to sec-

tion 37-57-105 and section 37-7-739, and ad

valorem taxes levied by the municipal governing

authorities for the support of any municipal sep-

arate school district pursuant to section 37-57-

105 and section 37-57-3, shall not exceed twenty-

eight (28) mills for each school district, unless

otherwise provided by section 37-57-105.

SOURCES: Law, 1983, ch. 471, § 24, eff from

and after July 1, 1983.

SECTION 164. Section 37-57-107, Mississippi Code of

1972, is amended as follows:

37-57-107. ~ Beginning with the tax levy for the 1987

fiscal year and for each fiscal year thereafter, the aggre-

gate receipts from taxes levied for school district purposes

pursuant to Sections 37-57-105 and » 37-57-1 ~ shall not

exceed the aggregate receipts from those sources during

the next preceding fiscal year plus an increase not to

exceed ten percent (10%). The additional revenue from the

ad valorem tax on any newly constructed properties or

any existing properties added to the tax rolls or any prop-

erties previously exempt which were not assessed in the

next preceding year may be excluded from the ten percent

(10%) increase limitation set forth herein. Taxes levied for

payment of principal of and interest on general obligation

school bonds issued heretofore or hereafter shall be ex-

cluded from the ten percent (10%) increase limitation set

forth herein. Any additional millage levied to fund any

new program mandated by the Legislature shall be ex-

cluded from the limitation for the first year of the levy

and included within such limitation in any year thereafter.

For the purposes of this subsection, the term “new _pro-

gram”’ shall include, but shall not be limited to, the Early

Childhood Education Program required to commence with

the 1986-1987 school year as provided by Section 37-21-7,

99a

and any additional millage levied and the revenue gener-

ated therefrom, which is excluded from the limitation for

the first year of the levy, to support the mandated Early

Childhood Education Program shall be specified on the

minutes of the school board and of the governing body

making such tax levy.

The ten percent (10%) increase limitation prescribed in

this section may be increased an additional amount only

when the school board has determined the need for ad-

ditional revenues and has held an election on the question

of raising the limitation prescribed in this section. The

limitation may be increased only if three-fifths (3/;) of those

v voting in the election shall vote for the proposed in-

crease. The resolution, notice and manner of holding the

election shall be as prescribed by law for the holding of

elections for the issuance of bonds by the respective school

boards. Revenues collected for the fiscal year in excess of

the ten percent (10%) increase limitation pursuant to an

election shall be included in the tax base for the purpose

of determining aggregate receipts for which the ten per-

cent (10%) increase limitation applies for subsequent fiscal

years.

Except as otherwise provided for excess revenues gen-

erated pursuant to an election, if revenues collected as the

result of the taxes levied for the fiscal year pursuant to

this section and Sections » 37-57-1 ~ exceed the increase

limitation, then it shall be the mandatory duty of the school

board of the school district to deposit such excess receipts

over and above the increase limitation into a special ac-

count and credit it to the fund for which the levy was

made. It will be the further duty of such board to hold

said funds and invest the same as authorized by law. Such

excess funds shall be calculated in the budgets for the

school districts for the purpose for which such levies were

made, for the succeeding fiscal year. Taxes imposed for

the succeeding year shall be reduced by the amount of

100a

excess funds available. Under no circumstances shall such

excess funds be expended during the fiscal year in which

such excess funds are collected.

10la

§ 37-59-11. Calling of election on issuance of

bonds.

Whenever either a certified copy of a resolu-

tion adopted by the board of trustees of a school

district, or a petition signed by not less than ten

per centum of the qualified electors of a school

district, fixing the maximum amount of such

bonds and the purpose or purposes, for which

they are to be issued, shall be filed with the board

of supervisors of the county or the governing

authorities of the municipality, as the case may

be, requesting that an election be called to de-

termine whether or not the bonds of such school

district shall be issued for any of the purposes

enumerated in section 37-59-3, the board of su-

pervisors of the county or the governing

authorities of the municipality, as the case may

be, within sixty days after receipt thereof, shall

adopt a resolution calling an election to be held

within such school district for the purpose of sub-

mitting to the qualified electors thereof the ques-

tion of the issuance of bonds in the amount and

for the purpose or purposes as set forth in such

resolution or petition. The resolution calling such

election shall designate the date upon which the

election shall be held and the place or places

within such district at which such election shall

be held, which place or places may or may not

be the school house or school houses in such dis-

trict.

SOURCES: Codes, 1942, § 6532-04; Laws, 1950,

ch. 231, § 4, eff from and after July 1, 1950.

SECTION 170. Section 37-59-11, Mississippi Code of

1972, is amended as follows:

102a

(Until June 30, 1987, Section 37-59-11 shall read as fol-

lows:)

37-59-11. (1) Before any money shall be borrowed under

the provisions of this act, the school board of the school

district shall adopt a resolution declaring the necessity for

borrowing such money, declaring its intention to issue the

negotiable bonds of the school district as evidence of same.

The resolution shall also set forth the amount of the in-

debtedness to be incurred and the purpose or purposes for

which the money so borrowed is to be expended, including

the approximate cost of the alterations, additions and re-

pairs to be made.

(2) The resolution so adopted by the school board shall

be published once each week for three (3) consecutive

weeks in at least one (1) newspaper published in the school

district involved, with the first publication thereof to be

made not less than twenty-one (21) days prior to the date

upon which the school board is to take final action upon

the question of authorizing the borrowing of said money.

If no newspaper is published in such school district, then

such notice shall be given by publishing the same for the

required time in some newspaper having a general cir-

culation in said school district. If no peitition requesting

an election is filed prior to such meeting as is hereinafter

provided, then the school board shall, at said meeting, by

resolution spread upon its minutes, give final approval to

the borrowing of said money and shall authorize the is-

suance of negotiable bonds for the school district by the

board of supervisors or the governing authorities of the

municipality, as the case may be.

(3) If at any time prior to said meeting a petition signed

by twenty percent (20%) or fifteen hundred (1500), which-

ever is less, of the qualified electors of the school district

involved shall be filed with the school board requesting

that an election be called on the question of incurring said

indebtedness, then the school board shall adopt a resolution

103a

calling an election to be held within such school district

upon the question of the incurring of said indebtedness

for the purposes and in the amount requested. Such elec-

tion shall be called and held, and notice thereof shall be

given, as provided in Sections 37-59-13 and 37-59-15.

(From and after July 1, 1987, Section 37-59-11 shall read

as follows:)

37-59-11. (1) Before any money shall be borrowed under

the provisions of this act, the school board of the school

district shall adopt a resolution declaring the necessity for

borrowing such money, declaring its intention to borrow

such money and to issue the negotiable bonds of the school

district as evidence of same, specifying the amount to be

so borrowed, and how such indebtedness is to be evi-

denced. Such resolution shall also set forth the nature and

approximate cost of the alterations, additions and repairs

to be made, and shall declare in said resolution that no

funds are available in the school funds of the district or

from any other source with which to make such repairs,

alterations, additions, purchases, erections or improve-

ments.

(2) Whenever a resolution is adopted by the school board

as provided in subsection (1), or a petition signed by not

less than ten percent (10%) of the qualified electors of a

school district, fixing the maximum amount of such school

bonds and the purpose or purposes for which they are to

be issued, the school board shall adopt a resolution calling

an election to be held within such school district for the

purpose of submitting to the qualified electors thereof the

question of the issuance of bonds in the amount and for

the purpose or purposes as set forth in such resclution or

petition. The resolution calling such election shall designate

the date upon which the election shall be held and the

place or places within such district at which such election

shall be held, which place or places may or may not be

the school house or school houses in such district.

104a

§ 37-59-105. Declaration of intention by local

authorities; election; issuance of indebted-

ness.

At its first regular meeting following the re-

ceipt of the resolution of the board of trustees

of a school district, the board of supervisors or

governing authorities of the municipality, as the

case may be, shall declare its intention to au-

thorize the borrowing of said money and to issue

the negotiable notes or certificates of indebted-

ness of the school district as evidence of same.

Said resolution shall also set forth the amount of

the indebtedness to be incurred and the purpose

or purposes for which the money so borrowed is

to be expended. The said resolution so adopted

shall be published once each week for two (2)

consecutive weeks in a newspaper having a gen-

eral circulation in the school district involved,

with the first publication thereof to be made not

less than fifteen (15) days prior to the date upon

which the board of supervisors or governing

authorities of the municipality, as the case may

be, are to take final action upon the question of

authorizing the borrowing of said money. If no

petition requesting an election is filed prior to

such meeting as is hereinafter provided, then the

board of supervisors or the governing authorities

of the municipality, as the case may be, shall, at

said meeting, by resolution spread upon its min-

utes, give final approval to the borrowing of said

money and shall authorize the issuance of ne-

gotiable notes or certificates of indebtedness of

the school district therefor in accordance with the

provisions of this article.

If at any time prior to said meeting a petition

- signed by not less than twenty per cent (20%)

of the qualified electors of the school district in-

105a

volved shall be filed with the board of supervisors

or governing authorities of the municipality, as

the case may be, requesting that an election be

called on the question of incurring said indebt-

edness, then the board of supervisors or govern-

ing authorities of the municipality shall, not later

than the next regular meeting, adopt a resolution

calling an election to be held within such school

district upon the question of the incurring of said

indebtedness of the purposes and in the amount

requested. Such election shall be called and heid,

and notice thereof shall be given, in the same

manner provided in Article 1 of this chapter for

elections upon the question of the issuance of the

bonds of school districts, and the results thereof

shall be certified to the board of supervisors or

the governing authorities of the municipality, as

the case may be. If a majority of the qualified

electors of the school district shal! vote in favor

of incurring said indebtedness, then the board of

supervisors or governing authorities of the mu-

nicipality, as the case may be, shall proceed to

issue said negotiable notes or certificates of in-

debtedness as prayed for in the original resolu-

tion of the board of trustees; however, if a

majority of the qualified electors voting in said

election vote against incurring said indebtedness,

then said notes or certificates of indebtedness

shall not be issued.

Money may be borrowed under the provisions

of this article and the negotiable notes or cer-

tificates of indebtedness evidencing same may be

issued as provided in this article (1) without the

necessity of being authorized in an election called

for that purpose, except where a petition re-

questing an election is filed as provided herein

106a

and (2) without the necessity of giving notice

thereof except as specifically provided herein.

SECTION 185. Section 37-59-105, Mississippi Code of

1972, is amended as follows:

37-59-105. ~ The school board y shall by resolution de-

clare its intention to authorize the borrowing of said money

and to issue the negotiable notes or certificates of in-

debtedness of the school district as evidence of same. Said

resolution shall also set forth the amount of the indebt-

edness to be incurred and the purpose or purposes for

which the money so borrowed is to be expended. The said

resolution so adopted shall be published once each week

for two (2) consecutive weeks in a newspaper having a

general circulation in the school district involved, with the

first publication thereof to be made not less than fifteen

(15) days prior to the date upon which the school board - is

to take final action upon the question of authorizing the

borrowing of said money. If no petition requesting an elec-

tion is filed prior to such meeting, ~ then the school

board ~ shall, at said meeting, by resolution spread upon

its minutes, give final approval to the borrowing of said

money and shall authorize the issuance of negotiable notes

or certificates of indebtedness of the school district there-

for in accordance with the provisions of this article.

If at any time prior to said meeting a petition signed

by not less than twenty percent (20%) of the qualified

electors of the school district involved shall be filed with

the school board ~ requesting that an election be called

on the question of incurring said indebtedness, then the

school board shall, not later than the next regular meet-

ing, adopt a resolution calling an election to be held within

such school district upon the question of the incurring of

said indebtedness for the purposes and in the amount re-

quested. Such election shall be called and held, and notice

thereof shall be given, in the same manner provided in

Wia

Articic 1 of this chapter for elections upon the question

of the issuance of the bonds of school districts, and the

results thereof shall be certified to the school board. » If

three-fifths (°/;) of the qualified electors voting in said elec-

tion shall vote in favor of incurring said indebtedness, then

the school board » shall proceed to issue said negotiable

notes or certificates of indebtedness as prayed for in the

original resolution of the school board; ~ however, if less

than three-fifths (°/;) of the qualified electors voting in said

election vote in favor of incurring said indebtedness, then

said notes or certificates of indebtedness shall not be is-

sued.

Money may be borrowed under the provisions of this

article and the negotiable notes or certificates of indebt-

edness evidencing same may be issued as provided in this

article (1) without the necessity of being authorized in an

election called for that purpose, except where a petition

requesting an election is filed as provided herein and

(2) without the necessity of giving notice thereof except

as specifically provided herein.

108a

SECTION 203. The qualified electors of any county hav-

ing an elected county superintendent of education on

July 1, 1986, shall decide at the November 1988 general

election whether (a) to continue to have such office elected,

or (b) to abolish such office of county superintendent of

education in the county. The county board of supervisors

of such counties shall publish notice of said election once

a week for at least three (3) consecutive weeks prior to

the November 1988 general election in at least one (1)

newspaper published or circulated in such county. The

proposition shall be submitted to a vote of ail qualified

electors residing outside the territory of any municipal

separate or special municipal separate school district lo-

cated within such county. Such election shall be held in

the same manner as other elections-are held in the county.

If a majority of the qualified electors who voted in such

election vote in favor of the abolition of such office, such

abolishment shall be effective at the end of any regular

term of office or whenever a vacancy shall occur in said

office. In counties where the office of elected county su-

perintendent of education has been abolished, it shall not

be reinstated.

109a

APPENDIX G

MISS. CODE ANN. § 37-7-611

§ 37-7-611. Merging of adjacent school districts.

Where the corporate limits of any municipality which

constitutes a municipal separate school district, either with

or without added territory, are extended so as to include

the whole or any part of an existing adjacent school dis-

trict in the county school system or municipal separate

district, then such adjacent school district, or such part

thereof as is included within the corporate limits of the

municipality by reason of the extension thereof, shall

thereby automatically be merged with and become a part

of such municipal separate school district. However, when

any such extension, that is, an extension taking irr a part

of or all of an adjacent school district, becomes effective

subsequent to September 1 of any fiscal year of said school

district, that portion of the existing adjacent school district

which is included because of the extension of the corporate

limits of such municipality shall become annexed to the

municipal separate school district immediately but shall

remain under the jurisdiction of said adjacent school dis-

trict for the remainder of such fiscal year for school pur-

poses only, and it shall be the duty of such existing

adjacent school district to continue to provide for the ed-

ucation and transportation for the balance of such fiscal

year of the pupils residing in that portion of said existing

adjacent school district included within the municipal sep-

arate school district by virtue of such extension at the

expense of the existing adjacent school district, all just as

though the extension of the municipal boundaries had not

become effective until the last day of the fiscal year of

the school districts involved; when the school building or

buildings of any such adjacent school district in the county

school system shall be included within the corporate limits

of the municipality by reason of any such extension of

such corporate limits then the whole of such adjacent school

110a

district shall automatically be added to and become a part

of such municipal separate school district as added terri-

tory.

When the corporate limits of any municipality shall be

extended but the school building or buildings of an existing

adjacent school district are not included therein, then, on

petition of a majority of the qualified electors residing in

that portion of such existing adjacent district which is not

included within the corporate limits of the municipality

filed with the governing authorities of the municipality,

that part of such adjacent district not included within the

corporate limits of the municipality shall be added to the

municipal separate school district as added territory and

shall be operated thereafter as a part of the municipal

school district system. However, when the corporate limits

of a municipality are extended so as to include within the

corporate limits one or more school buildings being used

as attendance centers of an adjacent school district having

more than one attendance center, but all of the school

buildings of such district are not so included within the

corporate limits, then, in addition to that portion of the

adjacent school district included within the corporate limits

as extended, which shall be automatic as hereinabove set

forth, there shall become a part of such municipal separate

school district as added territory that area or areas des-

ignated by agreement between the trustees of the munic-

ipal separate school district and the trustees of the adjacent

school district which, before becoming effective, must be

approved by the state educational finance commission, the

effective date thereof to be designated by proper order of

the educational finance commission. In the event no agree-

ment has been reached between the trustees of the re-

spective school districts and filed with the educational

finance commission within ninety days from the effective

date of the expansion of the municipal limits, then the

educational finance commission, on its own motion or on

motion of either of the school districts involved, shall by

llla

order spread upon its minutes, designate such area outside

the municipal limits, as extended, as shall be included in

the municipal separate school district as added territory,

together with the effective date thereof. Either school dis-

trict involved shall have the right to appeal from the de-

cision of the educational finance commission in the manner

provided by sections 37-45-51 and 37-45-61.

SOURCES: Codes, 1942, § 6411-06; Laws, 1953, Ex.

Sess., ch. 23, § 6; 1959 Ex. Sess., ch. 29, § 1.

112a

APPENDIX H

[SEAL] U.S. Department of Justice

WBR:SSC:MSB:gmh

DJ 166-012-3

P9110

P9535-9549

Honorable Edwin Lloyd Pittman

Attorney General

P. O. Box 220

Jackson, Mississippi 39205-0220

Washington, D.C. 20530

August 29, 1986

Dear Mr. Attorney General:

This refers to Chapter 492, S.B. No. 2117 (1986), which

amends various provisions of the code affecting public

schools in the State of Mississippi, submitted to the

Attorney General pursuant to Section 5 of the Voting

Rights Act of 1965, as amended, 42 U.S.C. 1973c. We

received your submission on July 23, 1986. In accordance

with your request, expedited consideration has been given

this submission pursuant to the Procedures for the Admin-

istration of Section 5 (28 C.F.R. 51.32).

The Attorney General does not interpose any objection

to the voting changes occasioned by Senate Bill No. 2117

(1986), as identified in your July 22, 1986, letter. However,

we feel a responsibility to point out that Section 5 of the

Voting Rights Act expressly provides that the failure of

the Attorney General to object does not bar any subse-

quent judicial action to enjoin the enforcement of such

change. In addition, as authorized by Section 5, the

Attorney General reserves the right to reexamine this sub-

mission if additional information that would otherwise re-

quire an objection comes to his attention during the

remainder of the sixty-day review period. See also 28

C.F.R. 51.42 and 51.48.

113a

We note that several of the provisions of Senate Bill

No. 2117 (1986) authorize officials of the political subdi-

visions of the State to make changes affecting voting which

are viewed as enabling legislation. Therefore, local officials

age not relieved of their responsibility to seek preclearance,

pursuant to the requirements of Section 5, of any changes

affecting voting (e.g., changing voting precinct lines, poil-

ing places, spec

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