BEFORE PATTERSON, DAN LEE AND ROBERTSON
DAN LEE, JUSTICE, FOR THE COURT:
Major General Curtis Roberts petitioned the Chancery Court of Rankin County to enjoin Major General Nat Troutt from dismissing him as Chief of Staff of the Mississippi Air National Guard. Pursuant to an uncontested motion for change of venue made by the defendant, the matter was transferred to the Chancery Court of Hinds County, Mississippi. Defendant then filed a motion for summary judgment and a hearing was set. The chancellor reserved ruling on summary judgment and the case proceeded to trial on the merits. At the conclusion of testimony and argument, the motion for summary judgment was denied, and judgment was rendered in favor of the defendant. We affirm.
Appellant, Curtis B. Roberts, had served as a commissioned officer in the Mississippi Air National Guard since November, 1957. On May 8, 1981, Roberts was appointed Major General in the Mississippi Air National Guard. The former Adjutant General of the State of Mississippi assigned Roberts to the position of Chief of Staff, Mississippi Air National Guard. As a major general, there is no other position in the Mississippi Air National Guard that Roberts can occupy. Chief of Staff of our state's National Guard is a federally recognized position, as the Mississippi Air National Guard is a branch of the Air National Guard of the United States of America.
In April, 1984, a new Adjutant General, Nat Troutt, requested that Roberts resign his position. Roberts rejected this request, and indicated that he had no intention of resigning his position. After initiating this lawsuit, Roberts sent Troutt a formal objection, requesting that Troutt reconsider his intention to remove him. Troutt was not persuaded, and on April 9, 1984, he requested authority from the Air National Guard of the United States to assign Roberts to" excess "status. Being placed in excess status effectively ended Roberts' career with the Mississippi Air National Guard, since Roberts had reached the highest position in the organization, excepting the position of adjutant general which is a purely political appointment. He thus would assume the status of a retired officer. The requested authority was granted. On April 20, 1984, Troutt issued orders to assign Roberts to excess status, and to replace him with Col. Wayne O. Burkes.
Roberts sought to enjoin Troutt from removing him: first, on the theory that the method of his removal did not comply with procedural due process requirements; and, second, that the appointment of Col. Wayne Burkes as his replacement violated the constitutional mandate of separation of powers. With regard to his due process claim, Roberts maintained that he had an expectancy of continued service, since he had only three years remaining before he attained his mandatory sixty (60) year retirement age and career goal of thirty (30) years of service. Roberts alleged that this expectancy created a constitutionally protected property right in his position. With regard to his claim of violation of the separation of powers doctrine, Roberts maintained that Burkes, a Mississippi State Senator, could not simultaneously hold the position of Chief of Staff of the Air National Guard, which is in the executive branch of government. Thus, Roberts sought to enjoin Troutt not only from removing him, but also from appointing Burkes. The chancellor below denied both injunctions, and Roberts appealed.
Roberts assigned three errors made by the chancellor concerning the violation of his due process rights under Air National Guard Regulations, Mississippi statute, and the United States and Mississippi Constitutions. These three assignments will be discussed together under the heading of" The Property Right Issue. "Roberts' fourth assignment of error deals with the failure of the court below to issue the injunction preventing the adjutant general from appointing Burkes.
Roberts' first contention is that Troutt has improperly removed him from the Mississippi Air National Guard. He alleges that he did not fall into any of the categories which would authorize his removal under Mississippi law. However, Section 33-7-111 Miss. Code Ann. (1972) states in part:
(a) No officer of the National Guard shall be dismissed unless by reason of resignation, approval of findings of an efficiency or medical examining board, withdrawal of federal recognition, the sentence of a court martial, or for cause as provided in subsection (d) of this section.
As there was no reason to dismiss Roberts for cause, nor by reason of resignation or court martial, this Court must look at the provision for withdrawal of federal recognition.
Because Troutt had issued orders placing Roberts in excess status, and that authority was recognized by the United States Air National Guard, federal recognition was effectively withdrawn with the approval of the United States Air National Guard Commander. Troutt had authority to request the withdrawal of federal recognition by virtue of paragraph 5 ANGR (Air National Guard Regulation) 36-05, which states:
The Adjutant General is authorized to approve and take final action on each case initiated for any of the reasons outlined in this regulation, except as indicated in tables 2 and 3.
Federal recognition may be withdrawn pursuant to ANGR 36-05, paragraph 6b., which states:
The Chief, National Guard Bureau, upon receiving orders announcing the separation of an officer from the State for any of the reasons outlined in this regulation, or upon receiving specific instructions from AFMPC/MPCAK01 directing the discharge of an ...