Decisions – Miss.S.Ct. – Oct. 27, 2016

 

Mississippi Department of Revenue f/k/a Mississippi State Tax Commission v. AT&T Corporation –     taxation on dividends – M.C.A. Sect. 27-7-15(4)(i) exempts from taxation “[i]ncome from dividends that has already borne a tax as dividend income under the provisions of this article, when such dividends may be specifically identified in the possession of the recipient.”  In 2003, the Mississippi State Tax Commission assessed additional income tax, penalties, and interest in an amount greater than $11.75 million against AT&T based on its income from dividends from non-Mississippi subsidiaries. AT&T ended up appealing to the Chancery Court after losing administrative remedies. AT&T argued that the statute “improperly favors taxpayers owning subsidiaries doing business in Mississippi by excluding from the taxpayer’s gross income dividend income received from such subsidiaries, while denying such an exemption for dividends received from subsidiaries which do not conduct business in Mississippi . . . .” The chancellor agreed with AT&T  and declared that part of the statute  unconstitutional.  The Miss.S.Ct. affirms.

Larry Press Wells  v. State of Mississippi – application of new laws to sentence – Larry Wells was convicted of possession of cocaine with intent to transfer pursuant to Mississippi Code Section 41-29-139(a)(1).  He was sentenced as an habitual offender and a recidivist drug offender to sixty years.  On appeal, the court affirmed the conviction but remanded for resentencing.   Wells v. State, 160 So. 3d 1136, 1147 (Miss. 2015), overruled on other grounds by Rowsey v. State, 188 So. 3d 486 (Miss. 2015). On remand the trial court declined to apply the subsequent-drug-offender enhancement and reduced Wells’s sentence from sixty years to thirty years. Wells appealed arguing that he should have been sentenced under the statute as amended.  The Miss. S.Ct. affirms finding that the amendment went into effect after Wells committed the crime and, therefore, the amendment which reduced the sentence for his crime did not apply.

Brodrick Akeem Moody  v. State of Mississippi – burden shifting instruction -Brodrick Moody was found guilty of possession of a cell phone while confined in a correctional facility.  He was sentenced to serve ten years, to run consecutively to the sentence he was serving.   On appeal he argues that it was error to instruct the jury thusly: “A person who is charged with the crime of possession of a cell phone in a correctional facility is presumed to be in constructive possession of a cell  phone that is found unless that presumption is overcome by competent evidence.”  Moody argued that this shifted the burden of proof.  The Mississippi Supreme Court agrees and reverses and remands for a new trial.

Donald Wayne Bell v. State of Mississippi –  deadlocked jury charge –  Bell was convicted of attempted armed robbery.  On appeal he argues that the trial judge’s comments to the deadlocked jury were improper. When the jury advised the judge it was deadlocked, the judge ascertained the numerical division –  nine-to-three and instructed them to go  back and deliberate one more time.  However, he also told them “But I don’t want you going back there just being stubborn. Go back there with the seriousness of purpose because you came here to do a job and if we can get a unanimous decision from you, we would like to. All right. Go retire back to the jury room.” The defense moved for a mistrial, arguing that the court’s comment placed undue pressure on the three jurors to change their minds. The Miss.S.Ct agrees andreverses and remands for a new trial.

Joe D. Chandler v. Floyd McKee – election contest – In August 2015, Joe Chandler defeated Floyd McKee in the Democratic primary run-off election for District 5 Supervisor of Clay County by eight votes.   On September 14, 2015, McKee filed a petition to contest the election with the CCDEC citing various irregularities (votes cast by nonresidents of ClayCounty, votes cast by voters who had voted Republican in the first primary election and votes cast by voters who voted with an “X” and had no witnesses). The Committee heard the matter and, on September 23, ultimately denied McKee’s petition.   McKee filed a petition for judicial review, pursuant to MCA Sect 23-15-927  October 2, 2015. Chandler moved to dismiss for McKee’s failure to file the petition within ten days after the filing of his complaint with the CCDEC, as required by Section 23-15-927. Chandler argued that the petition should have been filed by September 24, 2015, but was not filed until October 2, 2015. The circuit court held that McKee’s petition was timely, interpreting Section 23-15-927 to require the petition for judicial review to be filed within ten days after the CCDEC reached its decision and not within ten days of the filing of the complaint with the CCDEC. Chandler filed for an  interlocutory appeal which the Miss.S.Ct. granted. The Miss.S.Ct reverses.

Section 23-15-927 is neither ambiguous nor silent regarding the filing deadline, and, therefore, the plain meaning of the statute should be applied because it is the best evidence of legislative intent. McKee argues, as the circuit court found, that it would be illogical to file a petition for judicial review without first obtaining a ruling from the Committee, because Section 23-15-927 provides that the filing of such a petition “shall automatically supersede and 7 suspend the operation and effect of the order, ruling or judgment of the executive committee appealed from.” Miss. Code Ann. § 23-15-927. But Section 23-15-927 contains no language requiring the petitioner to wait until the executive committee has ruled before filing a petition for judicial review. On the contrary, the statute clearly requires the petition to be filed within ten days of the filing of the complaint with the executive committee, without regard for whether the executive committee has ruled on the complaint.

The State of Mississippi, by and through Delbert Hosemann, in His Official Capacity as Secretary of State and Trustee of the Public Tidelands Trust v. Kenneth F. Murphy, Ray J. Murphy and Audie R. Murphy –  tidelands taking – Among other things, Hurricane Katrina destroyed the Old Seawall built in 1917 in Bay St Louis.  The United States Army Corps of Engineers built a new seawall east/seaward of the Old Seawall in 2010.  Then, beginning in 2012,  Bay St. Louis built a harbor east/seaward of both the Old Seawall and the New Seawall.   The Murphys sued the State of Mississippi claiming that the State of Mississippi took property allegedly belonging to them  situated east/seaward of the Old Seawall by leasing that property to the City of Bay St. Louis for construction of the Harbor.  On August 18, 2014, the jury returned a verdict for the  Murphys  for the taking of their property and awarded them  $644,000.00. They were also  awarded $214,666.66 in attorneys’ fees, $48,676.32 in expenses, and interest on the jury verdict from the date of filing at 8% per annum. The Miss.S.Ct. affirms.

 

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