Tippah County v. Lerose, 283 So. 3d 149 (Miss. 2019). A county road ran through land owned by the Leroses. The Tippah County Board of Supervisors scheduled a public hearing to address abandoning the road. Notice of the hearing was published in the local newspaper. The Board held the hearing on February 27, 2015 and issued an order to abandon the road. [Although the case does not expressly state this, the Leroses, as owners of the land on both side of the county road, would have gotten title to the land adjacent to their land over which the road ran.] On August 15, 2016, the Board, at a regular meeting, entered an order rescinding the order abandoning the road. The Board found that the abandonment had been “illegal due to the lack of proper due process to the proper landowners,” though what was lacking in the notice and hearing was not identified. The Board gave no notice of this reconsideration other than the notice given for regular board meetings. The Leroses did not file an appeal from the Board’s decision within ten days as provided in Section 11-51-75, which provides for appeals from decisions of boards of supervisors. The Leroses filed a complaint in the Circuit Court of Tippah County and asked for a declaratory judgment that the August 15, 2016 order was void and that they were entitled to damages for the Board’s unconstitutional taking of their property without compensation. The county argued that the public has constructive notice of regular meetings of the Board of Supervisors, and that no additional notice was necessary. The Circuit Court granted partial summary judgment to the Leroses, holding that the county’s interest in the land had terminated when the Board’s February 2015 order became effective. The county filed an interlocutory appeal. The Mississippi Court of Appeals, in a unanimous decision by Justice Ishee, affirmed that the Board’s order of August 15, 2016 rescinding its previous action was void. No statute explicitly requires notice of a hearing to reconsider a prior decision of a board of supervisors. But even in the absence of a statutory provision, notice and a hearing often may be necessary to comply with the constitutional requirement of due process. The Leroses had a vested property right in the land at the time of the Board’s reconsideration. The county’s position that constructive notice was adequate was not tenable. Although the Leroses did not file an appeal within ten days after the Board’s order as provided in Section 11-51-75, a direct appeal is not the exclusive remedy when the owner did not receive notice if notice was required.
Note 1: This decision leaves the editor with more questions than answers. For example, does the county have a right to reconsider its prior decision to abandon the road? The Court of Appeals’ decision does not state that the Board of Supervisors could not reconsider its prior decision, only that the notice was inadequate. The decision does not identify the reason why the Board in August 2016 found that the notice of the February 2015 hearing was inadequate. Section 65-7-121 of the Mississippi Code provides that in order to abandon a county road, “the board of supervisors shall hold a public hearing on the question of such abandonment and shall publish notice of such hearing at least two (2) times, not less than two (2) weeks prior to the date of the hearing, in a newspaper having general circulation in the county.” If the notice of the February 2015 hearing did not meet these statutory requirements, then isn’t the Board within its rights to rescind the order abandoning the road? But if the notice of the February 2015 hearing did meet the statutory requirements, then it seems to the editor that the Board does not have the right to rescind its prior decision; rather, the Board would have to go through the process of eminent domain to re-acquire the land. Presumably the Circuit Court of Tippah County addressed the adequacy of the February 2015 notice before it granted summary judgment to the LeRoses.
Note 2: The opinion of the Court of Appeals states that a county (and presumably a municipality, administrative agency or any governmental entity) may have to give notice and opportunity to be heard in some circumstances when no statute requires notice. What sort of notice does the county have to give? Personal service, notice by mail, publication in the local newspaper for one week, publication in the local newspaper for two weeks? Quoting from a 1999 case by the Mississippi Supreme Court, the Court of Appeals wrote, “the Mississippi Rules of Civil Procedure will control the amount of notice that a landowner should be given after a complaint is filed.” What about cases like this one, when notice of a hearing is required, and no complaint is involved? As noted above, Section 65-7-121 only requires notice by publication, while personal service of process is required in an eminent domain action to take land.
Note 3: The plaintiffs asked for damages for the county’s unconstitutional taking of their land. Since the Court of Appeals has affirmed that the Board of Supervisors’ ordering rescinding the abandonment of the road is void, are the plaintiffs entitled to any damages?
Note 4: This opinion does not identify the source of the requirement of due process. There is a right to due process under the Fifth and Fourteenth Amendments of the United States Constitution as condition of a taking of property, of course, but Section 14 of the Mississippi Constitution also provides that “No person shall be deprived of life, liberty or property except by due process of law.” Presumably the outcome in this case would be the same under the state and federal constitutional provisions. The significance of prevailing under a federal due process claim as opposed to a state due process claim is that in some circumstances the plaintiff who prevails on a federal due process claim is entitled to an award of attorneys’ fees, although the editor has not researched whether an award of attorneys’ fees would be appropriate under the facts of this case.
Note 5: It would be interesting to know more facts about the road abandonment. In the editor’s experience, most road abandonments are initiated by adjacent landowners rather than the local government. Did the Leroses request the Board to abandon the road? Were the Leroses the only landowners affected by the abandonment of the road? If so, the failure to give actual notice rather than constructive notice seems more egregious and arguably may support a substantive due process claim in addition to the procedural due process claim.