CHARLES ARAUJO, CASSANDRA OVERTON -WELCHLIN, ARTHUR BROWN, EVELYN GARNER ARAUJO AND LUTAYA STEWART
GOVERNOR PHIL BRYANT, JPS, MS DEPARTMENT OF EDUCATION, GLADYS OVERTON, ANDREW OVERTON, SR., ELLA MAE JAMES, TIFFANY MINOR, THE MISSISSIPPI CHARTER SCHOOLS ASSOCIATION, MIDTOWN PARTNERS, INC. AND MIDTOWN PUBLIC CHARTER SCHOOL
OF JUDGMENT: 02/13/2018
COUNTY CHANCERY COURT HON. J. DEWAYNE THOMAS JUDGE
COURT ATTORNEYS: WILLIAM B. BARDWELL LYDIA WRIGHT JODY E.
OWENS, II KRISSY C. NOBILE KASHONDA DAY JOANNE N. SHEPHERD
CYDNEY ARCHIE MICHAEL J. BENTLEY MOLLY M. WALKER R. GREGG
MAYER JAMES W. SHELSON D. MICHAEL HURST, JR.
ATTORNEYS FOR APPELLANTS: WILLIAM B. BARDWELL JODY E. OWENS,
II CHRISTINE BISCHOFF
ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY:
KRISSY C. NOBILE JAMES W. SHELSON MICHAEL J. BENTLEY MOLLY M.
WALKER MICHAEL B. WALLACE AARON R. RICE JOANNE N. SHEPHERD
Under the Mississippi Charter Schools Act of 2013 (the Act),
a charter school receives funds from two sources: (1) local
ad valorem taxes paid from the school district
within which the charter school is located and (2) per-pupil
funds paid from the Mississippi Department of Education.
Miss. Code Ann. § 37-28-55 (Supp. 2018). In chancery
court, the Plaintiffs challenged both sources of funding as
unconstitutional under Article 8, Sections 206 and 208, of
the Mississippi Constitution. Also, one of the charter-school
intervenors maintained that the Plaintiffs lacked standing to
bring the suit. The chancellor held that the Plaintiffs did
have standing to sue and that they did not prove that either
source of funding was unconstitutional. Before this Court,
the Plaintiffs have concentrated their efforts under Article
8, Section 206, of the Mississippi Constitution, alleging
that a charter school's ad valorem funding is
unconstitutional. They did not appeal the chancellor's
ruling concerning per-pupil funds. Further, the Jackson
Public School District (JPS) maintains that the chancellor
erred in denying its motion to be dismissed from the suit.
After review, we affirm the judgment of the chancery court.
We agree that the Plaintiffs do have standing to sue. We also
agree with the chancery court that the Plaintiffs did not
meet their burden to demonstrate that Section 37-28-55 is
unconstitutional. Last, we find that JPS's arguments
concerning its motion to dismiss are waived on appeal for
failure to raise the issue in a cross-appeal.
AND PROCEDURAL HISTORY
On July 11, 2016, Charles Araujo, Evelyn S. Garner Araujo,
Casandra Overton- Welchin, John Sewell, Kimberly Sewell,
Lutaya Stewart and Arthur Brown (collectively, the
Plaintiffs), on their own behalf as taxpayers and as next
friends of their minor children, sued Governor Phil Bryant,
the Mississippi Department of Education (MDE) and JPS in the
Chancery Court of Hinds County. The Plaintiffs were ad
valorem taxpayers in Jackson with minor children who
attend school in JPS. The ad valorem taxes at issue
that were paid by the Plaintiffs were designated as
"Separate School District" taxes.
In their first amended complaint, the Plaintiffs maintained
that the Act's funding scheme for charter schools was
unconstitutional. Specifically, they challenged Section
37-28-55(2), which mandates that when a student attends
a charter school located in the school district in which the
student resides, the school district in which a charter
school is located shall pay directly to the charter school an
amount for each student enrolled in the charter school equal
to the ad valorem tax receipts and in-lieu payments received
per pupil for the support of the local school district in
which the student resides.
Miss. Code Ann. § 37-28-55(2) (Supp.
2018). The Plaintiffs asserted that Section
37-28-55(2) unconstitutionally diverted public funds to
charter schools. They relied on the language of Article 8,
Section 206, of the Mississippi Constitution. It reads,
There shall be a state common-school fund, to be taken from
the General Fund in the State Treasury, which shall be used
for the maintenance and support of the common schools.
Any county or separate school district may levy an
additional tax, as prescribed by general law, to maintain its
schools. The state common-school fund shall be
distributed among the several counties and separate school
districts in proportion to the number of educable children in
each, to be determined by data collected through the office
of the State Superintendent of Education in the manner to be
prescribed by law.
Miss. Const. art. 8, § 206 (emphasis added).
As the case progressed in chancery court, Gladys Overton,
Andrew Overton, Sr., Ella Mae James and Tiffany Minor-parents
of children enrolled in charter schools-intervened as
Defendants. The Mississippi Charter Schools Association,
Midtown Partners, Inc., and Midtown Public Charter School
intervened as Defendants as well. Also, JPS filed a motion to
dismiss arguing that it was not a necessary party to the
suit. The chancery court denied JPS's motion.
Throughout the litigation, all parties filed motions for
summary judgment. The Plaintiffs filed a superseding motion
for summary judgment. Governor Bryant and MDE filed a
combined motion. Also, all the Intervenor-Defendants filed
motions for summary judgment. In their summary-judgment
motion, Midtown Partners, Inc., and Midtown Public Charter
School (collectively, Midtown) raised the issue of the
Plaintiffs' standing to challenge the constitutionality
of the statute. In the alternative, Midtown argued that
Section 37-28-55(2) was constitutional.
On February 13, 2018, the chancery court entered an order
denying the Plaintiffs' superseding motion for summary
judgment. The order also granted Governor Bryant and
MDE's combined motion for summary judgment and the
Intervenor-defendants' motions for summary judgment. That
same day, the Plaintiffs filed their notice of appeal in this
The standard of review for issues of standing is de novo.
Davis v. City of Jackson, 240 So.3d 381, 383 (Miss.
2018). "The existence of subject-matter jurisdiction . .
. turns on the well pleaded allegations of the complaint
which are taken as true." SASS Muni-V, LLC v. DeSoto
Cty., 170 So.3d 441, 445 (Miss. 2015) (internal
quotation marks omitted) (quoting Am. Fid. Fire Ins. Co.
v. Athens Stove Works, Inc., 481 So.2d 292, 296 (Miss.
"[U]nder Mississippi law a party challenging the
constitutionality of a statute must prove unconstitutionality
beyond a reasonable doubt." Cities of Oxford,
Carthage, Louisville, Starkville & Tupelo v. Ne.
Miss. Elec. Power Ass'n, 704 So.2d 59, 65 (Miss.
1997) (citing Sec'y of State v. Wiesenberg, 633
So.2d 983, 989 (Miss. 1994)). Thus,
one who assails a legislative enactment must overcome the
strong presumption of validity and such assailant must prove
his conclusions affirmatively, and clearly establish it
beyond a reasonable doubt. All doubts must be resolved in
favor of validity of a statute. If possible, a court should
construe statutes so as to render them constitutional rather
than unconstitutional if the statute under attack does not
clearly and apparently conflict with organic law after first
resolving all doubts in favor of validity.
State v. Bd. of Levee Comm'rs for Yazoo-Miss.
Delta, 932 So.2d 12, 19-20 (Miss. 2006) (quoting Ne.
Miss. Elec. Power Ass'n, 704 So.2d at 65).
In their initial brief, the Plaintiffs urge us to find that
the issue of standing has been waived, since Midtown did not
file a notice of cross-appeal on the issue of standing.
Midtown did not raise the issue on cross-appeal. Thus, the
Plaintiffs argue that the issue is waived.
For support, the Plaintiffs rely on Hill Brothers
Construction & Engineering Co. v. Mississippi
Transportation Commission, 909 So.2d 58, 60 (Miss.
2005). They argue that the Hill Brothers Court found
that a party had waived its right to challenge standing by
not raising the issue in a notice of cross-appeal. In
Hill Brothers, the Court did recognize that a party
had not filed a cross-appeal "but raised
'standing' in its appellate brief." Hill
Bros., 909 So.2d at 60. The Court also concluded,
"As this issue is not properly before the Court, we
decline to address this issue on the merits."
Id. This conclusion, though, did not mean that the
issue of standing had been waived. Instead, the Hill
Brothers Court simply recognized that standing had not
been properly raised before the Court and declined to address
the issue on the merits. Id.
Further, it is well established that standing is a
jurisdictional issue that may be raised by the parties or the
Court at any time. City of Madison v. Bryan, 763
So.2d 162, 166 (Miss. 2000); Davis, 240 So.3d at
383. Thus, Midtown did not waive its standing challenge.
Turning to the merits of Midtown's claim that standing
has been waived, we recently reviewed Mississippi's law
It is well settled that Mississippi's standing
requirements are quite liberal. This Court has explained that
while federal courts adhere to a stringent definition of
standing, limited by Art. 3, § 2 of the United States
Constitution to a review of actual cases and controversies,
the Mississippi Constitution contains no such restrictive
language. Therefore, this Court has been more permissive in
granting standing to parties who seek review of governmental
actions. In Mississippi, parties have standing to sue when
they assert a colorable interest ...