More Clarification from the Supreme Court on Jurisdictional Requirement to File Appeal from Judgment or Decision of County Boards of Supervisors

By: Lynn Patton Thompson

Before 2018, pursuing an appeal under Miss. Code Ann.  §11-51-75 of a judgment or decision by a county board of supervisors seemed unnecessarily complicated and ripe for mistakes due to the requirement of filing a bill of exceptions within 10 days of adjournment of the meeting in which the judgment or decision was made.  Even diligent and experienced attorneys could be thwarted.  In the City of Jackson v. Allen, 242 So.3d 8 (Miss. 2018), the Mississippi Supreme Court recognized the need “to restore fairness and sensibility to the bill of exceptions process[.]” 

After City of Jackson v. Allen, the Legislature revised §11-51-75 to remove the bill of exceptions requirement.  In its place, the Legislature provided at §11-51-75(a) that “[a] written notice of appeal to the circuit court must be filed with the circuit clerk within ten (10) days from the date at which session of the board of supervisors …rendered the judgment or decision.”  That section also states that “[u]pon filing, a copy of the notice of appeal must be delivered to the president of the board of supervisors….”  Recently, in American Tower Asset Sub, LLC v. Marshall County, Mississippi, No. 2020-CA-00718-SCT handed down September 2, 2021, the Mississippi Supreme Court interpreted whether the requirement to provide a copy of the notice of appeal to the president of the board was a jurisdictional requirement to perfect the appeal.  The opinion notes that it is a matter of first impression.

American Tower involved a challenge by American Tower to the Marshall County Board of Supervisor’s decision to grant a special exception to Tillman Infrastructure, LLC so that Tillman could build a telecommunications tower near an existing tower owned by American Tower.  American Tower filed a notice of appeal with the Marshall County Circuit Court within 8 days of the decision but did not serve or deliver it to the board’s president. The same day American Tower filed the notice of appeal, it hand-delivered and emailed a copy of the notice to the Marshall County Chancery Clerk and emailed a copy of the notice to Tillman’s attorney.  The notice of appeal was not provided to the board’s president until its next meeting—more than 10 days from the date the challenged decision was made.

The circuit court dismissed American Tower’s appeal as untimely for failure to deliver the notice of appeal to the board president, which §11-51-75 says “must” be done “upon filing”.  The circuit court’s apparent logic was that the requirement to deliver the notice of appeal to the board president was a jurisdictional requirement that had to be accomplished within the same 10-day period for filing the notice of appeal.   

However, the Mississippi Supreme Court reversed, holding that timely filing of the notice of appeal perfected the appeal, and failure to deliver a copy of the notice to the president of the board was a procedural error that could be corrected.  The Court reasoned that §11-51-75 does not specify the exact method of delivery.  The Court also reasoned that what was meant by “upon filing” was unclear and could mean the same day, within some reasonable period, or even 120-days after the date of filing the notice of appeal.  Although the plain language of §11-51-75 says a copy “must” be delivered to the board’s president (as the dissent points out), the majority view was that it is not a predicate for perfecting the appeal. 

The result in American Tower echoes the Court’s decision in City of Jackson v. Allen, which was aimed at making the requirement for perfecting appeals clear and uniform—unless the relevant statute unequivocally provides otherwise.  The ruling in American Tower presumably applies to appeals of award decisions made by public school boards.  Miss. Code Ann. §37-7-115, which governs such appeals, provides that “[t]he procedure for appealing the award decision is the same as set forth in Miss. Code Ann. §11-51-75[.]”