MoreLaw Performance Internet Marketing

Completely Free Marketing If It Does Not Work

In July 2015, CellularSouth filed its Petition to Revoke Protective Order in which it

contended that two amendments to the Public Records Act and to Mississippi Code Section

25-1-100, made after the 2006 entry of the protective order, rendered the August 2005

proposal and resulting contract subject to production pursuant to the Public Records Act.

House Bill Number 825, passed by the Legislature in 2015, amended Section 25-61-9 to add

a new Subsection 7. The new subsection reads as follows:

For all procurement contracts awarded by state agencies, the provisions of the contract which contain the commodities purchased or the personal or professional services provided, the price to be paid, and the term of the contract shall not be deemed to be a trade secret or confidential commercial or financial information under this section, and shall be available for examination, copying or reproduction as provided for in this chapter.

The bill added a new Subsection 5 to Section 25-1-100, which reads as follows:

Contracts for personal and professional services that are awarded or executed by any state agency, including, but not limited to, the Department of Information Technology Services and the Department of Transportation, shall not be exempt from the Mississippi Public Records Act of 1983. CeullarSouth contends that the amended provisions operate to remove protected status from the sought-after proposal and contract.

¶3. In order to stave off CellularSouth’s attempt to force production of the contract and

proposal, BellSouth contended below and contends on appeal that Mississippi Code Section

25-61-11 insulates the 2006 protective order against subsequent amendments to the Public

Records Act. Section 25-61-11 reads as follows:

The provisions of this chapter shall not be construed to conflict with, amend, repeal or supersede any constitutional law, state or federal statutory law, or decision of a court of this state or the United States which at the time of this chapter is effective or thereafter specifically declares a public record to be confidential or privileged, or provides that a public record shall be exempt from the provisions of this chapter.

Of course, Section 25-1-100 is not found within “this chapter,” or Title 25, Chapter 61, of

the Mississippi Code, so BellSouth’s argument does not avail it there. However, BellSouth

contends that, as Section 25-61-9 is part of Chapter 61, the amendment to it cannot “be

construed to . . . repeal” it.

¶4. Below, the trial court agreed with BellSouth. In denying CellularSouth’s Petition to

Revoke the 2006 protective order, the trial court wrote:



The plain language of [Section 25-61-11] provides that the subject amendments should “not be construed to conflict with, amend, repeal or supersede” the 2006 Order of this Court which specifically declared the documents sought herein as “confidential and privileged” and “exempt from the provisions of this chapter.” Therefore, the Court must find that the 2015 amendments do not act to remove the exemption from disclosure granted by the 2006 Order.

For the reasons given below, we hold that the trial court erred in interpreting Section 25-61

11 as it did.

Analysis

The Interpretation of Mississippi Code Section 25-61-11

¶5. Before interpreting Section 25-61-11, it is beneficial to look at legislative amendments

to the applicable section of the Mississippi Public Records Act of 1983. Section 25-61-9

addresses records furnished to public bodies by third parties that contain trade secrets or

confidential financial information. It allows the third parties in question to seek protective

orders to protect such records from disclosure. See Miss. Code. Ann. § 25-61-9(1).

Following the addition of Subsection 7, a certain subset of information which previously

would have been exempted from disclosure as proprietary became, as it were, exempted from

the exemption. The narrow question presented in the case sub judice is whether Section 25

61-11 indicates that the Legislature intended the statutes to be subservient to a court order

entered after the Public Records Act was first passed in 1983.

¶6. BellSouth takes the position that Section 25-61-11 means that the new provision of

Section 25-61-9(7) cannot overcome a court order that contradicts it. It contends that the

phrase “or thereafter” applies such that any order, whether entered before the effective date

4

of the chapter or after the effective date of the chapter, cannot be overcome by the language

of the statute no matter the extent to which said order might conflict with the statute. One

problem inherent in what we are calling the BellSouth interpretation, however, is that it

applies to any order, whenever entered. Another problematic corollary of the BellSouth

position arises from the fact that the language of Section 25-61-11 is much broader than mere

amendments to the Public Records Act and provides, instead, that “the provisions of this

chapter” may not be construed to countermand an order. If BellSouth is correct, then a

protective order entered last week in direct contravention and after the effective date of

Section 25-61–9(7) becomes immediately challenge-proof and not subject to review by any

higher court. Effectively, the Legislature will have robbed itself of the power to amend the

Act by broadening the category of records subject to production, but the Legislature has

sought to do that very thing in amending Section 25-61-11.

¶7. “[E]very statute must be given meaning unless found to be in hopeless conflict with

another statute. . . .” Mississippi Pub. Serv. Comm’n v. Mun. Energy Agency of Miss., 463

So. 2d 1056, 1059 (Miss. 1985). BellSouth’s interpretation of Section 25-61-11, according

to which all orders protecting documents from disclosure are rendered impervious to conflict

with the language of the Act itself no matter when entered, would be, if accurate, in hopeless

conflict with the clear legislative intent of broadening the scope of unprotected documents

evidenced by the addition of Section 25-61-9(7).

¶8. CellularSouth proposes another reading of Section 25-61-11 that would remove the

conflict with the 2015 amendments. It contends that Section 25-61-11 operates to shield all

5

laws and orders that existed at the time the Mississippi Public Records Act was enacted in

1983. It further contends that the words “or thereafter” mean that such orders and laws that

were in effect in 1983 would continue to be protected at all times after the Act became

effective, rather than the language of the act could not be cited to modify or supersede any

orders or laws that came into effect after the effective date.

¶9. CellularSouth supplies us with the more plausible interpretation. A statute is

ambiguous when open to two or more reasonable interpretations. Tellus Operating Group,

LLC v. Maxwell Energy, Inc., 156 So. 3d 255, 261 (¶ 16) (Miss. 2015). For the foregoing

reason, i.e., that the BellSouth interpretation hopelessly conflicts with the Legislature’s

attempts to broaden the range of records subject to production, the BellSouth interpretation

falls short of reasonableness. However, even if it were reasonable, the principles of statutory

construction favor the CellularSouth interpretation. See City of Tchula v. Miss. Public Serv.

Comm’n, 187 So. 3d 597, 599 (¶ 6) (Miss. 2016) (“[W]here the language in a statute is plain

and unambiguous, ‘it is not within the province of this court to add to the law as the

Legislature has written it.’”)

¶10. It is our job to determine legislative intent from the language of the act as a whole, and

not to separate from the statutory herd one part alone. Wilson v. State, 194 So. 3d 855, 872

(¶ 57) (Miss. 2016) (citing Lewis v. Hinds Cty. Circuit Court, 158 So. 3d 1117, 1122 (¶ 13)

(Miss. 2015)). In short, the CellularSouth interpretation allows Section 25-61-11 to jibe far

better with the remainder of the Mississippi Public Records Act of 1983, in that it

acknowledges the 2015 legislative broadening of the scope of records subject to disclosure.

6

Put differently, statutes within an Act should be construed to “harmonize with” one another,

Owens Corning v. Miss. Ins. Guar. Ass’n, 947 So. 2d 944, 946 (¶ 7) (Miss. 2007), and

interpreting Section 25-61-11 in a manner that prevents the plain language of other parts of

the Act from correcting contradictory or even erroneous orders certainly fails to do so.

¶11. We depart from the instant issue with a word of caution. As discussed below, we do

not have a copy of the proposal or contract at issue in the record. Accordingly, we cannot

know the extent to which, if at all, they fall within the exception created by Section 25-61

9(7). The trial court will of course need to consider the issue on remand.

II. Section 25-1-100

¶12. CellularSouth further argues that House Bill 825, which amended Section 25-61-9 in

2015, also amended Section 25-1-100 in a manner which mandates production of the subject

contract. Section 25-1-100(5), the new language, reads, “Contracts for personal and

professional services that are awarded or executed by any state agency, including, but not

limited to, the Department of Information Technology Services and the Department of

Transportation, shall not be exempt from the Mississippi Public Records Act of 1983.” Here,

we do not know enough about the contents of the contract to know whether it is a contract

for “personal and professional services.” The affidavit of Dennis Brackin that was submitted

with BellSouth’s 2006 Joint Petition for a Protective Order appears in the record. Brackin’s

affidavit gives some indication of the nature of the contract, but not enough for the Court to

decide on appeal whether it falls within the scope of Section 25-1-100(5). However, the

issue is one that can be decided by the trial court on remand. If the trial court were to find

7

the contract is indeed one for “personal and professional services,” then by the plain language

of Section 25-1-100(5) it would not be exempt from the Public Records Act.

III. Retroactivity

¶13. BellSouth argues that the amendments to Section 25-1-100 and Section 25-61-9 are

presumed to be prospective only and therefore do not apply to the subject contract.

BellSouth cites, inter alia, Boston v. Hartford Accident & Indemnity Co., 822 So. 2d 239

(Miss. 2002), overruled on other grounds by Capital City Insurance Co. v. G.B. “Boots”

Smith Corp., 889 So. 2d 505 (Miss. 2004), for the proposition that “statutes will be construed

to have a prospective operation only, unless a contrary intention is manifested by the clearest

and most positive expression.” Id. at 245 (¶ 21).

A statute will not be given retroactive effect unless it is manifest from the language that the legislature intended it to so operate. It will not be construed as retroactive unless the words admit of no other construction or meaning, and there is a plain declaration in the act that it is. In short, these cases illustrate a well-settled attitude of statutory interpretation: A preference that it be prospective only, and a requirement that there should be a clearly expressed intent in the act to make it.

Mladinich v. Kohn, 186 So. 2d 481,484 (Miss. 1966). However, the question of whether

amendments to statutes apply to existing public records covered by the Public Records Act

is different from the questions normally considered in the context of the retroactivity of

statutory amendments. For example, in Boston, the question was whether the Tort Claims

Act would apply to litigation resulting from a death that occurred before the Tort Claims Act

was enacted. Boston, 822 So. 2d at 245. At issue was whether litigation between the parties

would or could continue under the law as it existed at the time of the event or under the then

8

new Tort Claims Act. Accordingly, the question involved the application of a wholly new

statute – as opposed to an amendment to an existing statute – that modified existing rights

that existed independently of and before the existence of the statute.

¶14. The Supreme Court of Mississippi has had myriad opportunities to consider whether

new statutes, or amendments to statutes, should be given retroactive effect. The

opportunities to do so date back as far as the middle of the nineteenth century, and most, like

Boston, address the effect of new statutes on rights that preexist the statute and, of course,

do not derive from the statute. In Brown v. Wilcox, 22 Miss. 127 (1850), the Legislature had

passed a new seven-year statute of limitations affecting the execution of judgments. Id. at

129. The question presented was whether the new seven-year period would bar execution

of a judgment when the attempt to execute thereupon occurred more than seven years after

the entry of the judgment but less than seven years after the passage of the new statute. Id.

at 130. The Brown Court held that, due to express statutory language, the statute was not

retroactive in the sense that the new seven-year period began running, as to unexpired

judgments that predated it, on the effective date of the statute. Id. Accordingly, the statute

did not bar the new attempt to execute the judgment.

¶15. In Klaas v. Continental Southern Lines, 225 Miss. 94, 82 So. 2d 705 (1955), the

issue was whether a statute that, for the first time allowed joint tortfeasors to obtain

contribution among themselves would apply to a judgment entered before the statute’s

effective date.

9

¶16. In response to BellSouth’s argument and citations, CellularSouth, inter alia, cites a

long line of cases that hold that, in situations involving the repeal or modification of statutes

that create the right in question, “a statute modifying a previous statute has the same effect

as though the statute had all the while previously existed in the same language as that

contained in the modified statute, unless the repealing or modifying statute contains a saving

clause.” Stone v. Indep. Linen Serv. Co., 212 Miss. 580, 586-587, 55 So. 2d 165, 168

(1951). The Stone Court considered an appeal from the Circuit Court of the First Judicial

District of Hinds County in which the trial court ruled against the Chairman of the State Tax

Commission and in favor of Linen Service Company. Id. at 583, 166. At issue was whether

Linen Service Company owed use taxes that the Tax Commission sought pursuant to a tax

statute that was amended in 1948. Id. at 167. Under the old version of the statute, Linen

Service Company owed the taxes, but under the amended version of the statute it did not.

Id. at 168. The taxes alleged to be owed accrued, if at all, prior to the effective date of the

amendment. Id. at 167. The Stone Court reasoned as follows:

In discussing the effect of a repealing statute or a statute modifying a previous statute on rights or remedies created solely by the repealed or modified statute, this Court, in the case of Deposit Guaranty Bank and Trust Company v. Williams, 193 Miss. 432, 9 So. 2d 638, 639, said:

Many decisions in this state have affirmed the rule, which generally prevails, that the effect of a repealing statute is to abrogate the repealed statute as completely as if it had never been passed, and that a statute modifying a previous statute has the same effect as though the statute had all the while previously existed in the same language as that contained in the modified statute, unless the repealing or modifying statute contains a saving clause. Crow v. Cartledge, 99 Miss. 281, 54 So. 947, Ann. Cas. 1913E, 470, and Musgrove v. Vicksburg & N.

10

Railroad Co., 50 Miss. 677, are among the number of such cases in this state.

The result of this rule is that every right or remedy created solely by the repealed or modified statute disappears or falls with the repealed or modified statute, unless carried to final judgment before the repeal or modification,—save that no such repeal or modification shall be permitted to impair the obligation of a contract or to abrogate a vested right. Bradstreet Co. v. City of Jackson, 81 Miss. 233, 236, 32 So. 999.

Stone, 55 So. 2d at 168. In the end, the Stone Court held that because the Tax Commission

had failed to do enough to vest the right to the tax proceeds in the State, Independent Linen

did not owe the amount sought. Id. at 590, 169-170. In other words, the Court applied the

amended version of the statute to determine that taxes that would have accrued prior to its

passage never accrued. “[A] statute modifying a previous statute has the same effect as

though the statute had all the while previously existed in the same language as that contained

in the modified statute. . . .” Stone, 55 So. 2d at 168.

¶17. The Court acknowledged the above-described rule as recently as Hudson v. Moon,

732 So. 2d 927 (Miss. 1999), where it applied it to the legislative appeal to mortmain.

Hudson, 732 So. 2d at 931 (¶ 14). However, the Hudson Court did not apply the statute as

amended because it held that the heirs therein had a vested right in the land at issue. The rule

dates back even further than the 1911 case of Crow v. Cartledge, 99 Miss. 281, 54 So. 947

(1911), where the Court applied it to the repeal of a sales-tax statute. There, the Court wrote

as follows:

The effect of a repealing statute of this character is to abrogate the repealed statute as completely as if it had never been passed. It is considered as a law which never existed, except for suits which were commenced and concluded

11

while the repealed law was in force. By the repeal, the right to collect the unpaid tax was taken away, whether suit was pending therefor or not. The cause of action was taken away, and the suit must end.

Crow, 54 So. at 948.

¶18. The rights and remedies at issue here are created solely by the Public Records Act, and

we therefore hold that the principle treated in Stone and Hudson controls the issue of

retroactive application of the 2015 amendments in the case sub judice. As a result, absent

an applicable saving clause, a final judgment, or a loss to BellSouth of a vested right, we

must apply the Public Records Act to the instant case as though it has always read as it reads

today. BellSouth contends that Section 25-61-11 acts as a saving clause and saves the 2006

order from the application of the amended statutes. However, as shown in the analysis above

regarding its application, Section 25-61-11does not shield the order at issue here. BellSouth

further contends that the 2006 protective order is a final judgment, but the order itself

contains language that allows for its replacement or revocation by future order of the trial

court. Finally, BellSouth identifies no vested right created by the 2006 protective order that

will be lost. BellSouth does attempt to distinguish Stone, but in the end misses the point the

Stone Court made about vested rights. BellSouth correctly contends that the Stone Court

applied the amended statute to the taxes alleged to have accrued (prior to amendment) against

Independent Linen because the State failed to do that which was necessary to obtain a lien

on the taxpayer’s property. See Stone, 55 So. 2d at 169. BellSouth contrasts the Tax

Commission’s omissions with its own actions in fulfilling all legal requirements for obtaining

a protective order. However, in doing so, BellSouth misses the ultimate point of the Stone

12

holding, which is that the State’s right to the money never vested in the state due to the Tax

Commission’s omissions.

¶19. Moreover, the statutory framework of the Public Records Act belies any contention

that the Legislature intended to create rights in favor of the Department or BellSouth. The

structure and wording of the Public Records Act as a whole indicates that the right the

Legislature intended to create was the right of the public to the disclosure of public records.

For example, Mississippi Code Section 25-61-2, adopted in and unchanged since 1996, reads

as follows:

It is the policy of this state that public records shall be available for inspection by any person unless otherwise provided by this chapter; furthermore, providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records. As each public body increases its use of, and dependence on, electronic record keeping, each public body must ensure reasonable access to records electronically maintained, subject to records retention.

If the above-quoted language, in which the Legislature speaks of access to public records as

something available to “any person” were not enough to convince us that the Public Records

Act focuses on the right of the public to have access, Mississippi Code Section 25-61-5(1)(a)

expressly makes public records the property of the public.

¶20. Based on the language of the Public Records Act, the Legislature intended the right

affected by the 2015 amendments discussed above to be the right of the public to have access

to materials that belong to the public. The materials sought by CellularSouth do not belong

to BellSouth or to the Department of Information Technology Services, but – again – to the

public.

13

If a court cannot draw a conclusion about a statute’s temporal reach through application of its normal rules of construction, it asks whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense of affecting substantive rights, liabilities, or duties on the basis of conduct arising before its enactment; if so, then the court applies the presumption against retroactivity by construing the statute as inapplicable to the event or act in question.

82 C.J.S. Statutes § 575 (2009); see also Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37-38

(2006). Ostensibly, BellSouth’s contention that retroactive application of the amendments

affects some right to keep the materials from production has some allure, but the

Legislature’s clear pronouncement that the right of the public to have access to public

documents quickly cuts through it. If there is an event to which rights attach in the case sub

judice, it is CellularSouth’s public records request for the materials, which occurred after the

effective dates of the amendments.

¶21. Pursuant to the foregoing reasoning, retroactivity of the amendments is a nonissue and

does not apply to protect or maintain the 2006 protective order at issue.