Mississippi Advisory Opinions March 02, 2007: No. 2007-00096 (March 2, 2007)

Mississippi Attorney General Opinions

2007.

No. 2007-00096.

Dear Mr. Mallette:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply. Your letter states:

On behalf of the City of Oxford, I request an official opinion regarding the effective date for taxation and the provision of services under the City's recent annexation. On August 15, 2006, the City adopted its proposed annexation ordinance, which provided that it would become effective ten days after entry of the Decree of the Chancery Court approving annexation. After a hearing without objection, the Chancellor entered its Decree on December 1, 2006. No appeal was noticed or filed, and the time for any appeal has run.

Related, in October 2006 the City passed an ordinance to amend its voting ward boundaries after annexation. This ordinance provides that it becomes effective on the date the United States Attorney General interposes no objection under Section 5 of the Voting Rights Act of 1965. Both ordinances (annexation and redistricting) now await pre-clearance by the Department of Justice.

During the pendency of the pre-clearance request, it has been suggested that the annexation should take effect and taxes be collected and all services be extended to the annexed areas, except voting rights. The City is mindful of both Section 5 of the Voting Rights Act and its implementing regulations, and prior opinions of this office that appear to say that pre-annexation status quo remains in effect until pre-clearance occurs. See, e.g., MS AG Op., Meadows (June 21, 2002) (holding that County retained jurisdiction to hear appeal of landowner regarding zoning issue, prior to pre-clearance by U.S. Department of Justice); see also 42 U.S.C. Section 1973c, requiring declaratory judgment action or no objection by Attorney General for enforcement of prerequisite, standard, practice or procedure affecting voting rights).

However, one opinion from your office could be read to suggest that annexation services or collections may proceed upon the effective date of the Chancellor's decree. See, e.g. MS AG Op., Rafferty (November 27, 2006) (holding that, provided that no appeal has been made, the annexation is deemed final and effective on the date of the final judgment approving the annexation and the municipality, pursuant to its authority under Section 27-35-3, may assess and collect taxes for the current year on property located in the annexed area).

Besides the recent opinion from your office, at least one federal case arguably implies that annexation, including services and taxation, could become effective during the period of the Department of Justice's pre-clearance consideration - or at least might not cease if final approval of voting wards did not occur. In Dotson v. City of Indianola, 514 F. Supp. 397 (N.D. Miss. 1981), the district court wrote:

Unless and until the City obtains clearance of its post-Act annexations in accordance with Section 5, all future elections must be conducted on the basis of the city boundaries, as they existed before the unprecleared annexations were made, and citizens residing in such annexed areas may not participate in future municipal elections, either as electors or as candidates. Cf. Perkins v. Matthews, 400 U.S. at 397 n. 14, 91 S. Ct. at 441 n. 14, 27 L.Ed.2d at 490 n.14. This relief applies only to the right to vote and be a candidate. It does not, of course, constitute de- annexation, and it does not affect the rights of citizens residing in the annexed areas in any other way.

Dotson, 514 F. Supp. at 403 (emphasis added).

Thank you for your guidance on the soonest date the City legally may make its annexation effective in all respects other that the voting rights of the individuals to be annexed.

In your letter you referenced our opinion addressed to Joseph R. Meadows, dated June 21, 2002 which cited previous opinions wherein we said that prior to pre-clearance by the U.S. Department of Justice, the status quo is maintained. Those previous opinions dealt with a legislative act that increase the compensation for certain county officials (MS AG Op., Dulaney (July 25, 1997)) and whether citizens who reside in newly annexed territory may vote and be candidates in municipal elections (MS AG Op., Mitchell (January 12, 2001)). None of those opinions deal with your specific question of when an annexation is effective in all respects other than the voting rights of citizens residing in newly annexed areas.

The Mississippi Supreme Court has set forth a "twelve part indicia of reasonableness" that chancery courts must consider in cases of annexation and deannexation. City of Grenada v. Marascalco, 876 So.2d 995 (Miss. 2004). One of the twelve is "the impact of the annexation upon the voting strength of protected minority groups." This is the voting rights aspect of an annexation that must be "precleared" by the U.S. Department of Justice. In affirming the chancellor's denial of a proposed deannexation, the Court said:

The City then argues that, because this deannexation case is intertwined with a controversy arising under the Voting Rights Act, this factor trumps all others, renders our twelve factor annexation/deannexation analysis irrelevant, and is the only proof that need be submitted to win approval in such a case. The City also argues that the chancery court "overlooked the remedial nature of Grenada's deannexation ordinance, failed to apply the presumption of constitutionality accorded a legislative enactment, failed to grant the judicial deference ordinarily afforded to the legislative policies and choices embodied in the deannexation ordinance and failed to defer to the USAG's Section 5 findings.

We disagree. What the chancery court failed to do was consider the voting rights aspect of this case as some kind of super factor which was outcome determinative regardless of the remainder of the evidence. Nothing the City cites requires that this Court amend or eliminate its traditional annexation analysis in such a case. The voting rights aspect of this case was considered, as one factor, in this analysis. The City of Grenada, or any other municipality, may attempt to use deannexation, or any number of other remedies, in an effort to obtain preclearance in the voting rights context. We are not able to foresee, any better than any other person or entity involved in this case, what will convince the Justice Department to rescind its objection to the 1993 annexation. We may only apply established state law on the matter of deannexation absent some factual or legal proposition, or combination thereof, which would mandate otherwise. The mere presence of a voting right controversy, as the sole impetus for a deannexation request, is not such a factor. The chancellor's finding on deannexation is affirmed.

Mississippi Code Annotated Section 21-1-29 (Revised 2001) requires the municipal governing authorities to file a petition in chancery court of the county in which such municipality is located asking the chancellor to approve the annexation. Section 21-1-33 requires the chancellor to conduct a hearing on the petition and either approve or deny the proposed annexation. It provides in part:

In any event, the decree of the chancellor shall become effective after the passage of ten days from the date thereof or, in event an appeal is taken therefrom, within ten days from the final determination of such appeal.

Consistent with Dotson and Marascalco, we are of the opinion that once the annexation is deemed final and effective pursuant to state law it is effective for all purposes except that citizens residing in such annexed area may not participate in future municipal elections, either as electors or as candidates unless and until pre- clearance pursuant to Section 5 of the Voting Rights Act is obtained.

In our opinion to Donald Rafferty, Esq. of November 27, 2006, cited in your letter, we said that if no appeal is taken the annexation is effective on the date the final judgment approving the annexation. However, Section 21-1-33 specifically provides that, if no appeal is taken, the decree of the chancellor approving an annexation becomes effective after the passage of ten days from the date of the entry of said decree.

You state in your letter that the decree was entered on December 1, 2006 and that no appeal was taken. Therefore, we are of the opinion that the effective date of the annexation for all purposes other than the voting and candidacy rights of the individuals residing in the newly annexed territory was December 11, 2006.

We note that Section 21-1-61 provides:

In all cases where a municipality is created or the limits of an existing municipality are enlarged under the provisions of this chapter, the property included within the municipal boundaries by such creation or enlargement shall become liable for and subject to municipal ad valorem taxation on the tax lien date next succeeding the effective date of the decree creating or enlarging such municipality.

Section 21-33-1 is the general statute that fixes the date of tax liability. It provides:

All lands and other taxable property subject to assessment, held by any person within the municipality, or in added territory, on the first day of January, shall be assessed, and ad valorem taxes thereon levied and collected for the ensuing year, excepting motor vehicles as defined by the "Motor Vehicle Ad Valorem Tax Law of 1958," Sections 27-51-1 through 27-51-49, Mississippi Code of 1972.

Section 27-35-3 fixes the date of tax liability in newly annexed territory. It provides in part:

(W)hen a municipality is created or the corporate limits thereof extended after January 1 of any year it shall have, prior to July 1 of said year, the full right and power to assess said property and collect taxes for the current year to the same extent as if it had been created or limits extended prior to January 1 of that year.

Based on the above quoted statutes and the facts stated in your letter, the effective date of tax liability was January 1, 2007.

In Rafferty we cited prior opinions in which we said that the effective date of an annexation is the date upon which the Mississippi judicial process of annexation was final by Mississippi law, provided that there is a determination of no objection by the United States Attorney General. That is correct but only as it applies to voting and candidacy rights of citizens who reside in a newly annexed area. For all other purposes the annexation is effective when finalized by the Mississippi judicial process.

To the extent that this conflicts with our opinion to Donald Rafferty, Esq. of November 27, 2006 and any other opinions on this matter, they are hereby modified to conform to this opinion.

Sincerely,

JIM HOOD,

ATTORNEY GENERAL

By: Phil Carter Special

Assistant Attorney General