author: WALLER, CHIEF JUSTICE, KING, JUSTICE,

text:
    MISSISSIPPI RURAL WATER ASSOCIATION, INC. v. MISSISSIPPI PUBLIC SERVICE COMMISSION, Brandon Presley, in his official capacity, Cecil Brown, in his official capacity and Samuel F. Britton, in his official capacity
    NO. 2015-CC-01249-SCT
    Supreme Court of Mississippi.
    06/08/2017

      HINDS COUNTY CHANCERY COURT, HON. PATRICIA D. WISE
    ATTORNEY FOR APPELLANT: JAMES H. HERRING.
    ATTORNEYS . FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: FRANK. F. FARMER LAURA H. DIXON
   WALLER, CHIEF JUSTICE,

FOR THE COURT:

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn and these opinions are substituted therefor,

¶ 2. The Mississippi Public Service Commission (MPSC) adopted a rule requiring utilities to waive utility deposits for certified domestic violence victims for a period of sixty days. The rule also required the utilities to keep the information regarding the domestic violence victims confidential and established penalties for violating that confidentiality. The Mississippi Rural Water Association, Inc. (“Water Association”) appealed to the Hinds County Chancery Court objecting to the promulgation of the new rule, but the chancery court affirmed the MPSC’s decision. We find that the MPSC lacks statutory authority to adopt any rule regulating the rates of nonprofit water utility associations and corporations. Accordingly, we reverse the order adopting the new rule and remand this case to the MPSC for proceedings consistent with this opinion.

PACTS AND PROCEDURAL HISTORY

¶ 3. In June 2013, the MPSC declared its intent to consider the adoption of a Rule of Practice and Procedure regarding the waiver of initial utility deposits for domestic violence victims. The original proposed rule stated:

A customer or applicant that has been determined to be a victim of domestic violence by a domestic violence program, by law enforcement personnel, by the office of a District Attorney, or by the office of the Attorney General, shall be exempt from public utilities’ initial deposit requirements as established in that utility’s tariff. This determination shall be evidenced by submission of a certification letter to the utility. The certification letter must be printed on the letterhead of the certifying agency or accompanied by a letter on agency letterhead identifying the certifying individual. The utility shall deem the certification letter and the contents thereof as confidential. The certification letter expires after ninety (90) days.

By its terms, this rule applies to all public providers of water service, both for-profit and nonprofit. Because the proposed rule would affect the MPSC’s existing rules governing public utility service, the MPSC sought comment on the rule from all interested parties and public utilities. In October 2013, the MPSC filed a scheduling order regarding the due date for further comments or testimony regarding the proposed rule, set a public hearing for December 2013, and attached an Economic Impact Statement (EIS).

¶ 4. The Water Association is a Mississippi nonprofit corporation and operates as a trade association representing more than 500 water and/or sewage disposal companies, most of which are nonprofit corporations. The Water Association moved to intervene on behalf of its nonprofit members and submitted multiple comments to the proposed rule, including expert affidavits by engineer James A. Elliott. In its comments, the Water Association argued, among other things, that Section 77-3-5 of the Mississippi Code prohibited the MPSC from regulating nonprofit utilities’ rates or internal affairs. It also argued that the MPSC had failed to comply with the requirements of the Mississippi Administrative Procedures Act because the EIS filed with the proposed rule was deficient.

¶ 5. The public hearing on the proposed rule ultimately was scheduled for August 5, 2014. On July 28, 2014, the MPSC sent counsel for the Water Association a draft of the new proposed rule, which included substantial changes from the original proposal:

A customer or applicant that has been determined to be a victim of domestic violence by a domestic violence program shall be exempt from public utilities’ initial deposit requirements, as established in that utility’s tariff, for a period of sixty (60) days. This determination shall be evidenced by submission of a certification letter to the utility. The certification letter must be printed on the letterhead of the certifying agency or accompanied by a letter on agency letterhead identifying the certifying individual. The certification letter expires after ninety (90) days.
The utility shall deem the certification letter and the contents thereof as confidential. Any employee, contractor, volunteer or agent of a public utility in possession of information which would tend' to identify a victim of domestic violence, who discloses any information that is exempt from disclosure under the Mississippi Public Records Act of 1983, or makes any observation or comment about the identity or condition of any person admitted to a shelter or receiving services of a shelter, unless directed to do so by an order of a court of competent jurisdiction, shall be subject to all applicable penalties imposed by Mississippi law for violation of Commission rules and, in addition, shall be civilly liable to the person whose personal information was disclosed in the amount of Ten Thousand Dollars ($10,000.00), plus any compensatory damages that the individual may have suffered as the result of the disclosure and any penalties imposed.

In addition to adding a penalty to the confidentiality provision, the new language changed the complete deposit exemption to a temporary, sixty-day waiver. After reviewing the new language, the Water Association submitted additional comments and a new affidavit by Elliot analyzing the new language in the proposed rule.

¶ 6. The public hearing was held on August 5, 2014. The Water Association and several other utility associations appeared at the hearing and opposed the new rule. On September 9, 2014, the MPSC unanimously passed a final order adopting the rule temporarily waiving deposits for domestic violence victims. The final rule, which applies to nonprofit water associations, states:

1. TEMPORARY WAIVER OF DEPOSIT A customer or applicant that has been determined to be a victim of domestic violence by a domestic violence shelter, .as defined in Miss. Code Ann. § 93-21-101 (2014), shall be exempt from public utilities’ initial deposit requirements, as established in that utility’s tariff for new accounts at existing service locations, for a period of sixty (60) days. This determination shall be evidenced by submission of a certification letter to the utility. The certification letter must be printed on the letterheád of the certifying agency or accompanied by a letter on agency letterhead identifying the certifying individual. The certification letter expires after ninety (90) days.
2. CONFIDENTIALITY OF CERTIFICATION LETTER The utility shall deem the certification letter and the contents thereof as confidential. Any employee, contractor, volunteer or agent of a public utility in possession of information which would tend to identify a victim of domestic violence, who discloses any information that is exempt from disclosure under the Mississippi Public Records Act of 1983, or makes any observation or comment about the identity or condition of any person admitted to a shelter or receiving services of a shelter, unless directed to do so by an order of a court of competent jurisdiction, shall be subject to all applicable penalties imposed by Mississippi law for violation of Commission rules, and in addition, shall be civilly liable to the person whose personal information was disclosed in the amount of Ten Thousand Dollars ($10,000.00), plus any compensatory damages that the individual may have suffered as the result of the disclosure and any penalties imposed.

The Water Association applied for rehearing, which the MPSC denied.

¶ 7. The Water Association then appealed the MPSC’s decision to the Hinds County Chancery Court on behalf of its nonprofit members, arguing that: (1) the MPSC lacks jurisdiction over the governance, management, or other internal affairs of the members of the Water Association and thus lacked jurisdiction to apply the rule to them; (2) the MPSC lacks authority to regulate the rates and rate-collection procedures, including deposit procedures, of the members of the Water Association and thus lacked authority to apply the rule to' them; (3) the MPSC violated the Administrative Procedures Act by adopting a final rule that differed from the proposed rule in a manner not allowed under the Act; (4) the MPSC violated the Administrative Procedures Act’s provisions governing consideration of the economic impact of a rule; and (5) the MPSC erred by allowing the members of the Water Association and their employees to become subject to civil and criminal liability for violation of the rule.

¶8. The chancery court affirmed the MPSC’s adoption of the rule, reasoning that a deposit is not included in the definition of “rate” or “rate structure,” remains the property of the customer unless a debt is incurred, and is within the utility company’s discretion to impose. The chancery court also found no violation of the Administrative Procedures Act. It concluded that the final rule was the logical result of comments filed by. interveners and simply incorporates existing Mississippi law. The chancery court declined to find the EIS insufficient as a matter of law.

¶ 9. On appeal to this Court, the Water Association raises. nineteen issues which essentially track, the- issues raised' in its appeal to the chancery court. We find one issue to be dispositive: whether the MPSC lacked statutory authority to adopt the rule in question because nonprofit.corporations, and associations are not subject to MPSC regulation of rates. Accordingly, it is .unnecessary to address the remaining issues.

STANDARD OF REVIEW

¶ 10. When this Court reviews a chancellor’s ruling concerning an administrative agency decision, we apply the same standard of review as the chancellor. Miss. Comm’n on Envtl. Quality v. Chickasaw Cty. Bd. of Supervisors, 621 So.2d 1211, 1216 (Miss. 1993). This Court has the authority to reverse the decision of the PSC if we find that it (1) was not supported by substantial evidence, (2) is arbitrary or capricious, (3) was beyond the PSC’s power to adopt, or (4) violates of some constitutional or statutory provision. Town of Enterprise v. Miss. Pub. Serv. Comm’n, 782 So.2d 733, 735 (Miss. 2001). “It is clear under Mississippi law that an administrative agency cannot exceed the scope of authority which was granted to it by the legislature.” Miss. Bd. of Nursing v. Belk, 481 So.2d 826, 829 (Miss. 1985) (citations omitted). “Further, the Commission’s authority to interpret the statutes under which it operates may not supersede the requirements thereof, nor may it conflict with pertinent rules of law,” State ex rel. Pittman v. Miss. Public Serv. Comm’n, 520 So.2d 1355, 1358 (Miss. 1987) (citing Capital Electric Power Ass’n v. Miss. Power & Light Co., 240 Miss. 139, 125 So.2d 739, 744 (Miss. 1961)).

discussion'

¶ 11.: The Mississippi Legislature has vested the MPSC with “exclusive original jurisdiction over the intrastate business and property of public utilities.” Miss. Code Ann. § 77-3-5 (Rev. 2009). However, the MPSC does not have the authority “to regulate the rates for the sales and/or distribution ... [o]f water or sewage disposal service of nonprofit corporations or associations where the governing body ... is elected. by the consumers thereof or appointed by the county board of supervisors[.]” Id. at § 77-3-5(c) (emphasis added). Under the specific language of Section 77-3-5(c), the MPSC does not have the authority to adopt rules regulating the Water Association members’ rates for the sale and distribution of water and sewage disposal services. The Water Association argues that the rule in question violates Section 77-3-5 because customer deposits are included in the rate-setting process and the rule’s deposit-waiver requirement therefore has a direct impact on its members’ rates. Thus, the critical question before this Court is whether-customer deposits are included within .the definition of the term “rate” in Section 77-3-5.

¶ 12. The Legislature has specifically defined term “rate” as it is used in the Public Utilities Act:

The term “rate” means and includes every compensation, fare, toll, rental and classification, or the formula or method by which such may be determined, or any of them, demanded, observed, charged or collected by any public utility for any service, product or commodity described in this section, offered by it to the public, and any rules, regulations, practices or contracts relating to any such compensation, charge, fare, toll, rental or elassification[.]

Miss. Code Ann. § 77-3-3(e) (emphasis added). The MPSC admits that Section 77-3-3(e) “broadly defines ‘rate.’” Indeed, this definition encompasses not only the typical usage of the term “rate"—“the unit cost of a service supplied to the public by a utility”—but also includes the “formula or method” by which the compensation is determined, as well as “any rules,, regulations, practices or contracts relating to any such compensation^]” Id. When read in conjunction with this definition, Section 77-3-5 prohibits the PSC from regulating not only the amounts charged by nonprofit public utilities for their services, but also the formula used to calculate that amount and any rules or regulations related to this process.

¶-13. The MPSC attempts to create a distinction between a “rate” and a “deposit” by arguing that the former is compensation for a service rendered while the latter is a precondition or security to receiving service. The MPSC claims that because customer deposits are collected before any sales occur and before service is rendered, they do not constitute “rates for the sales and/or distribution” of water under Section 77-3-5. But this argument is belied by the broad language of Section 77-3-3(e) and the MPSC’s prior interpretations of the term “rate.” The Water Association presented evidence of a prior proceeding before the MPSC in which' a 1992 subdivision ordinance of the City of Meridian was challenged as violating the MPSC’s regulatory authority under the Public Utilities Act. The ordinance at issue required utility providers to install underground utility service at no cost to the owner or developer of land being subdivided, unless the utility provider could prove beyond a reasonable doubt that the cost of underground service was not economically feasible over a twenty-year time span. Citing Section 77-3-3(e), the MPSC found that the term “rate” is broadly defined to include not only the charge itself, but also the formula by which the charge is determined and any rules and regulations relating to the charge. The MPSC then determined that the ordinance “clearly attempts to establish both the method to determine the charge and the charge itself; i.e., at no cost.” The MPSC also found that “[t]he manner of service also directly affects the costs to the utility and thus the rates the utility will charge.” Accordingly, the MPSC concluded that the ordinance constituted a rate, which infringed on its exclusive authority over utility regulation.

¶ 14. At first glance, it would appear that the ordinance described above does not fit within the most narrow dictionary definition of the term “rate.” However, the MPSC found that the ordinance fit squarely within the definition provided in Section 77-3-3(e) because the requirement of providing underground utility service at no cost would have an obvious and substantial effect on the formula by which the utility provider determined the rates it would charge to its customers. The same is true here. As set forth in the affidavit of James Elliot, which was presented to the MPSC and the chancery court, a public utility’s tariff generally includes the utility’s rate and charges for service, including initial deposits, service extension policies, and regulations unique to each company. In addition, the Water Association presented evidence of another utility company’s application to the MPSC to increase its rates, the formula for which included customer deposits. As with the ordinance described above, the MPSC’s rule in this case has an obvious effect on utility companies’ rate-setting formulas. The critical distinction in this case, however, is that the MPSC does not have statutory authority to regulate tlje rates of nonprofit water associations, and the rule in question directly applies to them.

¶ 15. The MPSC also argues that the rule affects only the timing of the deposit payment. But the MPSC’s attempt to regulate the payment of customer deposits, which are embedded in the rate-making process, would do more than impact the timing of payment. As the Water Association sets out in its brief, collecting a timely deposit plays an integral role in a water association’s ability to (1) determine the amount of the deposit and protect against bad debts, (2) ensure that the deposit is paid since services already would be provided, and (3) protect itself against losses arising from customers’, especially transient customers’, failure to pay for services.

¶ 16. We find that Section 77-3-3(e) includes customer deposits in the definition of the term “rate” as it is used in the Public Utilities Act, and Section 77-3-5 prohibits the MPSC from making rules that regulate the rates of the Water Association’s members. Accordingly, the MPSC lacked authority to adopt the rule in question. Because the MPSC did not have authority to adopt this rule, it is unnecessary for us to address the Water Association’s arguments concerning the MPSC’s compliance with the Administrative Procedures Act.

CONCLUSION

¶ 17. For the foregoing reasons, we reverse the judgment of the chancery court and the order of the MPSC adopting the deposit-waiver rule, and we remand the matter to the MPSC for proceedings consistent with this opinion.

¶ 18. REVERSED AND REMANDED.

RANDOLPH, P.J., COLEMAN, MAXWELL AND BEAM, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KITCHENS, J. CHAMBERLIN, J., NOT PARTICIPATING.

KING, JUSTICE,

DISSENTING:

¶ 19. Because I believe that the Mississippi Public Service Commission (MPSC) clearly has the authority to enforce the regulation at issue on the rural water associations, I respectfully dissent. The deposits at issue are not within the statutory definition of “rates.” Furthermore, the Mississippi Rural Water Association’s other arguments that the rule does not apply to its members likewise fail.

1. The rule does not regulate “rates.”

¶20. “In all actions and proceedings arising under the provisions of this article or growing out of the exercise of the authority and powers herein granted to the commission, the burden of proof shall be on the party seeking to vacate an order of said commission.” Miss. Code Ann. § 77-3-77 (Rev. 2009).

¶ 21. In interpreting agency statutes, exceptions in statutes are ordinarily given a strict or narrow construction. Miss. Dep’t of Wildlife, Fisheries and Parks v. Miss. Wildlife Enforcement Officers’ Ass’n, Inc., 740 So.2d 925, 932 (Miss. 1999) (citing 73 Am. Jur. 2d Statutes § 313, at 463-64 (1974)). Moreover, the agency that administers or enforces a statute is entitled to deference to its interpretation of the statutes, “unless that interpretation is repugnant to the plain meaning of the statute ... or the best reading of the statute.” Miss. Gaming Comm’n v. Imperial Palace of Miss., Inc., 751 So.2d 1025, 1029 (Miss. 1999). Statutory exemptions to jurisdiction are to be construed narrowly, and in accordance with general principles of statutory interpretation. Miss. Dep’t of Wildlife, Fisheries and Parks v. Miss. Wildlife Enforcement Officers’ Ass’n, Inc., 740 So.2d 925, 932 (Miss. 1999).

¶ 22. The MPSC is empowered to regulate public utilities. Miss. Code Ann. § 77-3-2 (Rev. 2009). The MPSC has “exclusive original jurisdiction over the intrastate business and property of public utilities.” Miss. Code Ann. § 77-3-5 (Rev. 2009). However, the MPSC shall not “have jurisdiction to regulate the rates for the sales and/or distribution ... [o]f water or sewage disposal service by nonprofit corporations or associations where the governing body of such corporation or association is elected by the consumers thereof or appointed by the county board of supervisors.” Miss. Cpde Ann. § 77-3-5(c) (Rev. 2009) (emphasis added). Thus, as the specific statute covering the exemption states, the MPSC does not have jurisdiction to regulate the rates for the sales and/or distribution of water of the members of the Water Association. The question is therefore whether the domestic violence rule regulates the rates of the members of the Water Association and is thus beyond the MPSC’s jurisdiction. In making this determination, the Court must construe the exception to the MPSC’s jurisdiction narrowly and give deference to the MPSC’s interpretation of the statute, unless that interpretation is repugnant to the plain meaning or the best reading of the statute.

¶ 23. “Rate” is defined as including

every compensation, charge, fare, toll, rental and classification, or the formulor method by which such may be determined, or any of them, demanded, observed, charged or collected by any public utility for any service, product, or commodity described in this section, offered by it to the public, and any rules, regulations, practices or contracts relating to any such compensation, charge, fare, toll, rental or classification!;.]

Miss. Code Ann. § 77-3-3(e) (Rev. 2009). The term “deposit” is not defined.

¶ 24. The Water Association argues that the definition of “rate” is sufficiently broad so as to include 'deposits.. It also claimá that a deposit is part of the rate structure, thus exempting a deposit from MPSC jurisdiction. The Water Association also points to a comment from the Lexis Nexis Accounting for Public Utilities publication that states that “deposits aré available to the utility for use in support of its rate base investment.” The MPSC argues that “rate” clearly does not encompass deposits, pointing to dictionary definitions of the two words.

¶ 25. It is clear from the statute defining rates that a difference exists between regulating rates or the formula to determine rates, and regulating something that may result in impacting rates. In this case, the MPSC is regulating something that impacts rates, i.e., a deposit, and it is not regulating the rates or rate formulas themselves. In terms- of the rate base, the statute defining “rate” indicates that the MPSC may not regulate certain practices related to rates, such as the rate formula. With the domestic violence rule, the MPSC is not doing so. The MPSC has not mandated that utilities remove deposits from their‘rate base formula. The utilities are free to use 'what formula they choose, including or not including deposits. The MPSC has simpler regulated one ofinumerous things that' can trickle down and impact rates, but it has not regulated the rate or the rate formula.

¶26. The dictionary definitions of the two terms support this notion. A “rate” is defined as “[a]n amount paid or charged for a good or service.” Rate, Black’s Law Dictionary (10th ed. 2014). A “deposit” is money or property given “to another who promises to preserve it or to use it and return it in kind.” Deposit, Black’s Law Dictionary (10th ed. 2014).

¶27. In addition to containing the domestic violence rule, the MPSC’s Rule 9 also provides' that utilities may require “a cash deposit to guarantee the payment of any such bills due or which may become due from such customer and safe return of all property belonging to the utility installed at the customer’s premises or elsewhere.” Miss. Admin. Code § 39-1-2:9. The rule specifies the- maximum amount the deposit may be: for residential customers, “an amount equivalent to a single estimated average bill.” Id. Additionally, any deposits held for more than one year must accrue interest payable to the customer or credited to the customer’s account. Id. Thus, the plain meaning of “deposit” designates a sum of money that ultimately belongs to the customer, unless the condition is met that the customer fails to pay his or her bill. This definition of deposit does not fit into the statutory definition of “rate.”

¶ 28. Last, exemptions to jurisdiction are to be construed narrowly. It is noteworthy that the specific statute exempting the wá-ter associations’ rates from MPSC jurisdiction specifically exempts regulation of “the rates for the sales and/or distribution ... [o]f water or sewage disposal service ..,. ” The specific language of the exemption contemplates only exempting regulation of “rates” in the typical sense, as in the rate for the sale of water. A deposit, based on its plain language definition, is not a rate for the sale of water.

¶ 29. The plain meaning of “rate” does not include a “deposit.” While the timing of a deposit may have the trickle-down effect of impacting the rates of some utilities, this does not transform the deposit into a “rate” that is beyond the MPSC’s jurisdiction.

2. Whether the rule regulates internal affairs.

¶ 30. The MPSC “shall not have jurisdiction over the governance, management or other internal affairs of nonprofit corporations or associations where the governing body of such corporation or association is elected by the consumers thereof or appointed by the county board of supervisors.” Miss. Code Ann. § 77-3-5(c) (Rev. 2009). Therefore, if the domestic violence rule regulates the internal affairs of the water associations, the MPSC does not have jurisdiction to apply it to the members of the Water Association.

¶ 31. The domestic violence rule regulates the timing, but not the amount, of deposits for a subset of customers.' The Water Association argues that such regulation amounts to improper regulation of its members’ government, management, or other internal affairs. The Water Association cites Mississippi Code Section 79-11-151, which outlines general corporate powers. The Water Association argues that setting the timing for deposits falls under conducting business in a manner that exempts the timing of deposits from MPSC jurisdiction.

¶ 32. The MPSC argues that “business regulation” in which it may. not engage includes matters such as hiring and-firing employees, setting salaries, or drafting corporate bylaws. But, it argues, this statutory exemption does not “preclude Commission jurisdiction over matters directly affecting the services the utility provides to its customers.” Citing cases from other jurisdictions, the MPSC argues that postponing a deposit does not usurp managerial prerogatives or invade the discretion of the corporation over internal governance matters. See, e.g., Lone Star Gas Co. v. Corp. Comm’n of Okla., 170 Okla. 292, 39 P.2d 547, 553 (1934) (“The powers of the Commission are to regulate, supervise, and control the public service companies in their services and rates, but these powers do not extend to an invasion of the discretion vested in the corporate management. It does not include the power to approve or disapprove contracts about to be entered into, nor to the approval or veto of expenditures proposed.”).

¶ 33. The MPSC is empowered to regulate public utilities because the Legislature determined “that the rates, services and operations of public utilities as defined in this title are affected with the public interest and that the availability of an adequate and reliable service by such public utilities to the people, economy and government of the State of Mississippi is a matter of public policy.” Miss. Code Ann. § 77-3-2(1) (Rev. 2009). Of course, Section 77-3-5 specifically exempts water associations from MPSC jurisdiction over their rates for the sales and/or distribution of water and over governance, management, or other internal affairs. Yet, construing such exemption narrowly, the MPSC still has jurisdiction over the other services and operations of the water associations. The Water Association’s interpretation of the internal affairs exemption would completely exempt its members from any and all MPSC jurisdiction. Simply because management has the capacity to decide something does not automatically render it an “internal affair.” The Legislature clearly did not intend to completely exempt the water associations from all MPSC regulation. When the Legislature intends to completely exempt entities from MPSC jurisdiction, it has done so explicitly. See, e.g., Miss. Code Ann. § 77-3-1 (Rev. 2009) (“[A]ny public utility ... owned or operated by a municipality shall not be subject to the provisions of this article .... ”). Therefore, the regulation of deposits regulates aspects of the utility services provided by the utility, and not its internal affairs.

3. The rule does not violate the APA because it differs from the proposed rule.

¶ 34. The Water Association argues that the domestic violence rule should be struck because it violates the Administrative Procedure Act’s (APA) provision regarding variances between the adopted rule and proposed rule. The APA provides that

(1) An agency shall not adopt a rule that differs from the rule proposed in the notice of proposed rule adoption on which the rule is based unless all of the following apply:
(a) The differences are within the scope of the matter announced in the notice of proposed rule adoption and are in character with the issues raised in that notice;
(b) The differences are a logical outgrowth of the contents of that notice of proposed rule adoption and the comments submitted in response thereto; and
(c) The notice of proposed rule adoption provided fair warning that the outcome of that rule-making proceeding could be the rule in question.
(2) In determining whether the notice of proposed rule adoption provided fair warning that the outcome of that rule-making proceeding could be the rule in question, an agency shall consider all of the following factors:
(a) The extent to which persons who will be affected by the rule should have understood that the rule-making proceeding on which it is based could affect their interests;
(b) The extent to which the subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the notice of proposed rule adoption; and
(c) the extent to which the effects of the rule differ from the effects of the proposed rule contained in the notice of proposed rule adoption.

Miss. Code Ann. § 25-43-3.107 (Rev. 2010). The Water Association’s primary complaint regarding the differences between the proposed and adopted rules lies with the penalties imposed for violation of the confidentiality provision.

¶35. This Court must first examine whether the differences between the two rules “are within the scope of the matter announced in the notice of proposed rule adoption and are in character with the issues raised in that notice.” Confidentiality was certainly announced in the notice of proposed rule adoption. Adding “teeth” to the confidentiality provision is within the scope of the matter announced, as it is still within the scope of keeping the information confidential.

¶ 36. Next, the Court examines whether the “differences are a logical outgrowth of the contents of that notice of proposed rule adoption and the comments submitted in response thereto.” Three separate comments, including those of the Attorney General’s office, raised concerns about confidentiality. The comments indicated that the confidentiality provision of the proposed rule was not stringent enough. A logical outgrowth of the proposed rule requiring confidentiality and the comments indicating that the confidentiality provision was not stringent enough is making the confidentiality provision more stringent, for example, by adding penalties.

¶37. Third, the proposed rule must have provided fair warning that the final rule could be the outcome of the rulemak-ing proceeding. In examining this factor, the Court examines first the “extent to which persons who will be affected by the rule should have understood that the rule-making proceeding on which it is based could affect their interests.” The Water Association moved to intervene, provided comments and evidence, and testified at the hearing. Clearly, the Water Association should have and did understand that the proceedings could affect its interests. Next, the Court examines the “extent to which the subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the notice of proposed rule adoption.” The subject matter, waiver of deposit for domestic violence victims and confidentiality of their information, is the same in the proposed and final rules. Last, the Court examines the “extent to which the effects of the rule differ from the effects of the proposed rule contained in the notice of proposed rule adoption.” The effects between the proposed and final rules are essentially the same. The penalty added mimics statutory law already in effect in Mississippi, which the original proposed rule would make applicable to members of the Water Association. Section 93-21-109 provides that records maintained by domestic violence shelters are exempt from public disclosure under the Mississippi Public Records Act. Miss. Code Ann. § 93-21-109(1) (Rev. 2013). It then provides that

Any employee, contractor, volunteer or agent of a domestic violence shelter, or of any other entity in possession of information which would tend to identify a victim of domestic violence, who discloses. any information that is exempt from disclosure under the Mississippi Public Records Act of 1983, or makes any observation or comment about the identity or condition of any person admitted to a shelter or receiving services of a shelter, unless directed to do so by an order óf a court of competent jurisdiction, shall be civilly liable to the person whose personal.information was disclosed in the amount of Ten Thousand Dollars ($10,000.00), plus any compensatory damages that the individual may have suffered as the result of the disclosure.

Miss. Code Ann. § 93-21-109(2) (Rev. 2013) (emphasis added). The original proposed rule exposed the water associations to this liability under Section 93-21-109(2), as it placed information regarding domestic violence victims in the hands of utilities. “It is a familiar rule that ignorance of the iaw excuses no one, or that every person is charged with knowledge of the law.” Hoskins v. Howard, 214 Miss. 481, 59 So.2d 263, 269 (1952). Thus, the actual effect of adding this language to the rule itself imposes no new liability on the water associations; it merely puts them on better notice that they are exposed to the liability.

¶ 38. Moreover, as the MPSC points out, the Water Association had actual notice of this proposed change before the hearing, made arguments regarding it, and had its expert examine it; thus the Water Association was heard on the issue.

¶ 39. In sum, the final rule is a logical outgrowth of the proposed rule, and does not have any different effects, thus the rule does not violate the APA.

4. The rule does not violate the APA because the Economic Impact Statement was legally insufficient.

¶ 40. The Water Association argues that the rule is invalid because the economic impact statement (EIS) filed by the MPSC was legally insufficient. Section 25—48— 3.105 provides that an economic impact statement- must be prepared, and that it must include eleven specific items. Miss. Code Ann. § 25-43-3.105(2) (Rev. 2010). The MPSC filed an EIS that contained all the statutory requirements.

¶ 41. The statute also provides that

(3). No rule or regulation shall be declared invalid based on a challenge to the economic impact statement for the rule unless the issue is raised in the agency proceeding. No person shall have standing to challenge a rule, based upon the economic impact statement or lack thereof, unless that person provided the agency vuth information sufficient to make the agency aware of specific concerns regarding the statement in an oral proceeding or in- written comments regarding the rule. The grounds for invalidation of an agency action, based upon the economic impact statement, are limited to the agency ’s failure to adhere to the procedure for preparation of the economic impact statement as provided in this section, or the agency’s failure to consider information submitted to the agency regarding specific concerns about the statement, if that failure substantially impairs the fairness of the rule-making proceeding.

Miss. Code Ann. § 25-43-3.105(3) (Rev. 2010) (emphasis added). The Water Association argues that the standard for invalidating the rule is met because it alleges that the MPSC failed to produce a “meaningful” EIS. It also questions, that a new EIS was not created considering the civil liability (and criminal liability, it argues, due to a statute providing that any person violating ;a MPSC rule is guilty of a misdemeanor) for breaching confidentiality.

¶ 42. The MPSC argues that the Water Association improperly demands that the EIS take the costs of violating the rule and/or violating contractual obligations into account. Any economic consequence to the utilities assumes that the domestic violence victim will breach his or her utility contract and fail to pay a deposit after the sixty day waiver is up, as well as fail to pay his or her utility bill. Other economic consequences the Water Association argues were not taken into account deal with the civil liability, which requires the assumption that the utility would violate the rule. Because of a lack of Mississippi case-law on this issue, the MPSC cites the District Court of Appeal of Florida, in a case in which a party challenged the economic impact statement of a Department of Health rule as insufficient because it failed to address the economic consequences of a failure to comply with the rule. Health Care & Ret. Corp. of Am. v. Dep’t of Health & Rehab. Servs., 463 So.2d 1175, 1178 (Fla. Dist. Ct. App. 1984). The court stated that

Nothing in [the EIS] statute specifically requires a determination of the economic impact of the failure to follow the rule, and we specifically decline to construe the statute as imposing such a requirement in the preparation of economic impact statements. A rule will not be declared invalid merely because the. economic impact statement may not be as complete as possible; any deficiency in the statement must be so grave as to have impaired the fairness of the proceedings. ... The statement accompanying this rule addressed all of the statutory criteria. Appellant has failed to show any deficiency in the economic impact statement that impaired the fairness of the rulemaking proceedings in this instance.

Id. Likewise, nothing in the Mississippi statute specifically requires that an EIS evaluate the economic impact of violating the rule. Such a requirement would be overly cumbersome and likely would have endless possibilities.

¶43. The MPSC also argues that the EIS was sufficient. It notes that “[a] rule adopted after July 1, 2005, is invalid unless adopted in substantial compliance with the provisions of Sections 25-43-3.102 through 25-43-3.110.” Miss. Code Ann. § 25-43-3.111 (Rev. 2010). Thus, the EIS must substantially comply with the provisions of a statute. The EIS author, the Director of Economics and Planning Division of the Public Utilities Staff, a Ph.D., checked with the public utilities of other states that had implemented similar rules to inquire about the effects. The EIS addressed every statutory factor and the MPSC complied with procedure. The EIS thus substantially complies with the statute, as any alleged deficiency was not, so grave as to interfere with the fairness of the proceedings.

¶ 44. Because I believe that the domestic violence rule does not regulate “rates” under the plain language of the statute, and certainly when we apply a deferential standard of review to the MPSC’s interpretation of its own statutes, and because the Water Association’s other arguments likewise are without merit, I respectfully dissent.

DICKINSON, P.J., AND KITCHENS, J., JOIN THIS OPINION.

      . Rate, Black’s Law Dictionary 1452 (10th ed. 2014). This narrow definition and the other dictionary definitions cited by the MPSC are irrelevant to the instant case, as the Legislature has defined the term “rate” .as used in the Public Utilities Act.

      . Notably, the majority seems to simply disagree with the MPSC’s interpretation of its own statute, and does not appear to employ the deferential standard of review that we are required to apply to administrative agencies. It fails to explain how the MPSC’s interpretation is repugnant to the plain language or best reading of the statute, and simply substitutes its opinion of the best reading of the statute for the MPSC's.

      . However, that same publication seems to define deposits as something other than some sort of charge collected for some service. It states that deposits “generally represent funds received from ratepayers as security against potential losses arising from failure to pay for services. ... [Deposits] represent a liability to repay the funds received either after a specified period or upon satisfaction of certain requirements,”

      . Incidentally, a "rate base” is defined as “[t]he investment amount or property value on which a company, esp. a public utility, is allowed to earn a particular rate of return.” Rata base, Black’s -Law Dictionary (10th ed. 2014).

      . Rule 9 regulates many aspects of deposits, including a provision that requires a return of deposits to customers over age sixty under certain provisions. Interestingly and confusingly, the Water Association and the majority do not explain why the MPSC has the authority to regulate aspects of the Water Association's members' deposits when it comes to customers of a certain age, yet magically does not have that same authority when it comes to domestic violence victims. Indeed, Rule 9 is the rule that allows utilities to collect a depos

        it in the first place. Miss. Admin. Code § 39-1-2:9 ("Each utility may require from any customer or prospective customer a cash deposit to guarantee the payment of any such bills due .... ”), And it regulates the maximum deposit amount and the return of deposits. Under the majority’s holding, are members of the Water Association now allowed to charge deposits in any amount they want without limit? May its members now decline to return deposits upon cancellation of service, even when a customer has paid his or her balance in full? The majority’s holding is .far reaching.

      . If the MPSC cannot regulate the timing of a deposit because it is an internal affair, the decision about which must be made by the Water Association members, then can it regulate the quality of water service the Water Association members provide? If the management decides to provide subpar service in order to save money, that would be a management decision, as well, under the Water Association’s urged interpretation.


source: Caselaw Access Project

author: COLEMAN, JUSTICE,

license: Public Domain

text:
    Alvin BROWN v. STATE of Mississippi
    NO. 2014-CT-00331-SCT
    Supreme Court of Mississippi.
    05/04/2017

      HINDS COUNTY CIRCUIT COURT, HON. WILLIAM A. GOWAN, JR., J.
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN GEORGE T. HOLMES ALVIN BROWN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
   ON WRIT OF CERTIORARI

COLEMAN, JUSTICE,

FOR THE COURT:

¶ 1. A Hinds County jury found Alvin Brown guilty of manslaughter and four counts of aggravated assault. The circuit court sentenced Brown to twenty years in the custody of the Mississippi Department of Corrections for manslaughter and ten years for each aggravated assault conviction, with the aggravated assault sentences to run concurrently with each other and consecutively to the manslaughter sentence.

¶ 2. Brown appealed and we assigned his case to the Mississippi Court of Appeals. The Court of Appeals reversed and remanded for a new trial as to only the aggravated assault convictions due to a variance between the indictment and the jury instructions. Brown v. State, - So.3d -, -, 2016 WL 3512493, at *9 (¶ 41) (Miss. Ct. App. June 28, 2016). The Court of Appeals held that Brown’s remaining assignments of error were without merit and affirmed his manslaughter conviction. Id. at ---, 2016 WL 3512493, at **5-7, 10 (¶¶ 26, 29, 31, 42-44).

¶ 3. On November 16, 2016, Brown filed a pro se petition for writ of certiorari. On November 22, 2016, Brown filed another petition for writ of certiorari through counsel. On January 20, 2017, the Court granted the petitions for writ of certiorari to consider the issue of whether the trial court had erred in giving an imperfect self-defense jury instruction. Because the Court of Appeals’ affirmance of the trial court’s decision to give the State’s imperfect self-defense instruction conflicts with our earlier cases affirming the refusal of imperfect self-defense instructions when requested by defendants, we also reverse Brown’s manslaughter conviction.

FACTUAL BACKGROUND

¶ 4. In the early morning hours of September 20, 2009, a shooting occurred at the Birdland nightclub on Farish Street in Jackson,. Mississippi. Yatasha Johnson died as a result of being shot that night. Four others, Anastasia Murdock, Malcolm Smoot, Latonya Hopson King and Derrick Walker, were shot but survived.

¶ 5, It is undisputed that Albert Coleman, better known as “Westside Al,” and Brown, while at the club that night, started fighting, with Coleman, a much larger man, throwing the first punch. However, the events immediately preceding the fight and during the fight, which culminated in several shots being fired in a crowded club, are largely disputed.

¶ 6. Brown was the sole witness for the defense. Brown, who was nineteen years old at the time, testified that he and his cousin, Malcolm Smoot, had gone to Bird-land that night to look for women. Brown testified that he had bought a drink for a woman named Eddwantya Epps, As Brown and Epps were speaking, Coleman interrupted and confronted Epps. Brown testified that' the music was loud and he could not hear the details of the confrontation between Coleman and Epps. Brown testified that Coleman appeared angry, so he turned to walk away and Coleman grabbed him. Brown tried to walk away again, but Coleman punched him and they began fighting.

¶7. Brown explained that he used his left hand to hold Coleman’s shirt to stay close so he could not be hit as hard and used his right hand to defend himself. During the fight, Brown testified that Coleman pulled a pistol from his crotch area. Brown testified that he wrestled with Goleman for the pistol. Meanwhile, Coleman was firing the pistol. Brown testified that his finger did not touch the trigger nor was it near the trigger while the two men were wrestling for the pistol. Brown recalled two or three shots being fired before he was shot in the head by Coleman. The next, thing Brown recalled was waking up in the hospital several days later. Brown denied possessing a weapon while in the club and claimed that he did not own a weapon.

¶8. The State offered evidence- that Coleman had initiated the fight with Brown, Brown had pulled the pistol, and Brown had fired the pistol in the club.

¶ 9. Coleman, who lived in Little Rock, Arkansas, at the time, testified that he had gone to Birdland that night with several of his friends to celebrate his birthday. Upon arrival, Coleman was greeted by a group of men he knew from his old neighborhood in Jackson. Coleman testified that they were happy to see him and he shook their hands. However, Coleman testified that when he reached out to shake Brown’s hand, Brown screamed, “Westside, you know I don’t f*** with you.” Brown continued, “Man, you just don’t know. I ain’t no little boy no more, you know.” Coleman testified that he knew Brown only as a child from- Coleman’s old neighborhood, and that Brown had been around fourteen years old when Coleman had moved from Jackson to Little Rock. Coleman claimed he did not know what had prompted Brown’s reaction and that he did not have a problem with him. Coleman told Brown just to leave him alone and Brown walked away. Coleman told his friends, “Man, I don’t know what’s up with [Brown]. He just really got something on his mind about me.”

¶ 10, Coleman testified that, sometime later, Brown returned and got in Coleman’s face trying to intimidate him. Coleman set his drink down and asked Brown, “Man, what’s really on your mind[?]” Brown then turned his head, and Coleman punched him. Coleman claimed he first heard a shot when he punched Brown. Coleman testified that he looked down and saw Brown had a pistol in his hand. Coleman testified that he pushed Brown’s hand down while Brown was trying to' shoot. After Brown had fired several shots, Coleman testified he was able to wrestle the gun from Brown. Once Coleman gained control of the gun, he placed it on the bar. Brown tried to run, and Brown said, “[Yja’ll need to catch him,” and then several people started beating Brown. Coleman immediately left the scene and went back to Little Rock in the early morning hours. Coleman claimed he spoke to a Jackson Police Department detective and gave a statement to police in Little Rock the next day.

¶ 11. Antonio Moore, a bartender at Birdland, testified that he saw Coleman punch Brown, and that Brown had pulled a gun. Moore then observed Coleman and Brown struggling over the gun. Moore testified that Coleman ultimately gained control of the gun and put it on the bar.

¶ 12. John Greer, a DJ at Birdland, testified that he did not see who pulled the gun, but he saw Brown and Coleman struggling over the gun, with each having their hands on it. Greer testified that, when the struggling was over, he saw Coleman with the gun.

¶ 13. Epps, who was near Brown and Coleman at that time, testified that she saw Brown and Coleman arguing and beginning to fight. Epps testified that she observed Brown with a gun at his side, that he.pulled the gun, and he and Coleman began wrestling over the gun. During the struggle, Epps testified that shots were going off rapidly. Epps also testified that she saw Brown point the gun at Coleman’s chest at some point. Epps saw Coleman eventually place the-gun on the bar.

¶ 14. Jacob Burchfield, a gunshot residue analyst, testified that Brown’s 'right palm and the back of his left hand tested positive for gunshot residue, meaning that Brown had fired the gun or handled something with gunshot residue on its surface such as the gun, or that Brown’s hands were in close proximity at the time the gun was discharged. Coleman never was tested, because he immediately left Jackson for Little Rock after the shooting.

¶ 15. Dr. John Porter, a surgeon at the University of Mississippi Medical Center, testified that he treated Brown. Dr. Porter determined that Brown had not been shot. Dr. Porter diagnosed his injuries as being blunt assault and a laceration, .

Jury Instructions

¶ 16. Brown did not argue self defense at trial. Brown maintained as his defense that he was hot the person who discharged a weapon on September 20, 2009. The trial court duly instructed the jury as to Brown’s theory of his defense. The State requested an imperfect self-defense jury instruction. Over the objection of Brown, the trial court granted and gave the State’s requested instruction. With, respect to murder and the lesser included offense of manslaughter, i.e., imperfect self-defense, the trial court instructed the jury as follows:

The Court instructs the jury that the defendant Alvin Brown has been charged in the indictment with the offense of murder. The Court instructs the jury that if you find from the evidence in this case that the . defendant Alvin Brown on or about September 20, 2009 in the First Judicial District of Hinds County, Mississippi did purposefully and knowingly and feloniously kill Yatasha Johnson while in the commission of an act imminently dangerous evidencing a depraved heart without the authority of law and not in necessary self-defense, then you shall find the defendant Alvin Brown guilty of murder. If the State has failed to prove any one or more of the elements beyond a reasonable doubt, then it shall do defendant [sic]—then you shall find the defendant not guilty of murder.
The Court instructs the jury that if you unanimously find that the State has failed to prove all the elements of the crime of murder, you may then proceed in your deliberations to consider the lesser charge of manslaughter. However, it is your duty to accept the law given to you by the Court, and if the facts and the law warrant a conviction of the crime of murder, then it is your duty to make such finding and not be influenced by your power to find the lesser offense. This provision is not designed to relieve you from the performance of an unpleasant duty.. It is included to prevent a failure of justice if the evidence fails to prove the original charge, but it does justify a verdict of a lesser crime. The Court instructs the jury that if a person kills another under the actual bona fide belief that such a killing is necessary in order to protect themselves from great bodily harm or death but that such belief is not reasonable under the circumstances, then there is no malice aforethought, and the killing is not murder but at most is the crime of manslaughter. Therefore, if you find from the evidence in this case that on September 20, 2009 the defendant Alvin Brown did shoot and take the life of Yatasha Johnson acting in his actual and bona fide belief that such was necessary to protect himself from great bodily harm or death at the hands of Albert Coleman but that such belief by the defendant was not a reasonable belief under the circumstances, then you may find the defendant guilty of the lesser included offense of manslaughter. (Emphasis added to show the instruction at issue.)

¶ 17. The imperfect self-defense instruction was the only manslaughter instruction given by the trial court. Thus, it is not disputed that Brown was found guilty under the theory of imperfect self-defense manslaughter!

Whether the trial court erred in giving the imperfect self-defense jury instruction.

¶ 18. Brown argues that the trial court erred in giving the imperfect self-defense jury instruction because there was no evidence to support the lesser offense and he never requested a self defense jury instruction. Brown did not argue self defense. Rather, he maintained throughout trial that he did not fire the weapon. The trial court instructed the jury on Brown’s defense theory, but the trial court also instructed the jury that it could find Brown guilty of manslaughter under the theory of imperfect self-defense. As more fully set forth below, we agree that the evidence did not support giving the imperfect self-defense instruction because our cases require direct proof of the subjective belief, held by the defendant, that his life was in danger or that he might suffer great bodily harm.

¶ 19. The Court reviews the grant or denial of proposed jury instructions for an abuse of discretion, and no one instruction should be singled out. Quinn v. State, 191 So.3d 1227, 1231-32 (¶ 18) (Miss. 2016). “In determining whether error exists in granting or refusing jury instructions, the instructions must be read as a whole; if the instructions fairly announce the law anil create no injustice, no reversible error will be found.” Jones v. State, 962 So.2d 1263, 1272 (¶ 33) (Miss. 2007).

II20. Self defense or justifiable homicide is a defense to a criminal act. Ronk v. State, 172 So.3d 1112, 1126 (¶ 22) (Miss. 2015). “Self-defense is codified at Mississippi Code Section 97-3-15(f), which provides that the killing of a human being is justifiable ‘[wjhen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.’ ” Byrd v. State, 158 So.3d 1146, 1151 (¶ 16) (Miss. 2015) (quoting Miss. Code Ann. § 97-3-15(f)). “The apprehension or fear that will justify killing another in self-defense must appear objectively real to a reasonable person of average prudence.” Batiste v. State, 121 So.3d 808, 845 (¶ 74) (Miss. 2013). Stated another way, “[t]he actor’s apprehension must be objectively reasonable before his homicide is justified.” Cook v. State, 467 So.2d 203, 207 (Miss. 1985).

¶ 21. “Unlike true self-defense, imperfect self-defense is not a defense to a criminal act.” Ronk v. State, 172 So.3d 1112, 1126 (¶ 22) (Miss. 2015). “Rather, under the theory of imperfect self-defense, an intentional killing may be considered manslaughter if done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent death or great bodily harm.” Id. Contrary to the objective reasonableness of an actor engaged in true self-defense constituting a justifiable homicide, “[wjhere [an] actor’s apprehension is only subjectively, in his or her own mind, reasonable, the homicide is Section 97-3-35 [heat of passion] manslaughter.” Cook, 467 So.2d at 207. Thus, “the homicide is manslaughter where the defendant acted under the bona fide belief of necessity, without objectively reasonable cause therefor[.]” Id.

¶22. Brown was indicted for one count of depraved heart murder. Depraved heart murder is defined as “[t]he killing of a human being without the authority of law by any means or in any manner ... [w]hen done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.” Hawkins v. State, 101 So.3d 638, 642 (¶ 12) (Miss. 2012) (quoting Miss. Code Ann. § 97-3-19(1)(b)). “Malicious intent can be inferred from the circumstances if the actions involved a very high degree of carelessness evincing a reckless indifference to the danger to human life.” Id.

¶ 23. “An indictment for murder includes the lesser-included charge of manslaughter.” Anderson v. State, 79 So.3d 501, 505 (¶ 17) (Miss. 2012); see also Miss. Code § 97-3-19(3) (Rev. 2014) (“An indictment for murder or capital murder shall serve as notice to the defendant that the indictment may include any and all lesser included offenses thereof, including, but not limited to, manslaughter.”). The Court consistently has held that manslaughter is a lesser included offense of murder. State v. Shaw, 880 So.2d 296, 303 (¶ 25) (Miss. 2004); see also Batiste, 121 So.3d at 844 (¶ 69). Mississippi Code Section 99-19-6(2) provides, in part, that “manslaughter shall be considered a lesser included offense of murder and capital murder, and the jury may be properly instructed thereon, upon request by either party or upon the court’s own motion, in any case in which the giving of such instruction would be justified by the proof, consistent with the wording of the. applicable manslaughter statute.” Miss. Code Ann. § 99-19-5(2) (Rev. 2015).

¶ 24. “A lesser-included offense instruction should be granted unless the trial judge-and ultimately this Court-can say, taking the evidence in the light most favorable to the accused, and considering all favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of the principal charge).” Goodnite v. State, 799 So.2d 64, 68 (¶ 20) (Miss. 2001).

¶25. In Harveston v. State, 493 So.2d 365, 375 (Miss. 1986), the Court explained the standard in determining whether a lesser included offense instruction should be given:

We recognize in certain cases, as a matter of trial strategy, defense counsel may wish to have the case put to the jury on an all or nothing basis, the jury’s alternatives being to find the defendant guilty as charged in the indictment or acquitted. Our law, howfever, allows the prosecution to request and obtain lesser-included offense instructions, as it does the defense. The test for whether such an instruction should be granted is the same: is it warranted by the evidence? Where the answer is affirmative, the defendant has no right to complain of the circuit court’s submission to the jury of a properly phrased lesser-included offense instruction, either at the request of the prosecution or on its own motion.

Harveston v. State, 493 So.2d 365, 375 (Miss. 1986). Simply put, “[t]here must be an evidentiary basis in the record to support a lesserrincluded-offense instruction,” Batiste, 121 So.3d at 844 (¶ 69).

¶ 26. The question is whether, pursuant to the Harveston standard, the jury could have found that Brown acted with a subject belief, albeit not reasonable under the circumstances, that he was in danger of losing his life or sustaining bodily harm. A review of our earlier pronouncements on the quantum of proof required for giving an' imperfect self-defense instruction produces a negative answer,

¶ 27. In Morgan v. State, 117 So.3d 619 (Miss. 2013), the defendant, Joe Morgan, was convicted of murder of Damien Talbert and manslaughter of Ricky Thomas. Id, at 620 (¶ 1). The facts were strikingly similar to the present case in .that the victims, Talbert and Thomas, were killed by gunshots fired in the culmination of a large fight at a night club. Id. at 620 (¶ 2).

¶ 28. The Court addressed whether the trial court had abused its discretion by refusing ' Morgan’s requested imperfect self-defense jury instruction. Id. at 622-23 (¶ 13). One witness observed Talbert fighting Thomas, with Talbert on top of Thomas, Id. at 621 (¶ 7). Another witness testified that Morgan was on friendly terms with Thomas, and the two had known each other for about seven years. Id. at 621 (¶ 8). A police officer testified that Morgan and Talbert- were associated with rival gangs. Id. at 622 (¶ 10).

1129. On appeal, Morgan argued that testimony showed that the club was generally chaotic and dangerous that night; Morgan was on friendly'terms with Thomas; Talbert, who was much larger than Thomas, was on top of Thomas when the two shots were fired. Id. at 622-23 (¶ 13). Morgan argued that, based on the evidence, the jury could have found that he shot Talbert in defense of Thomas with a real, but unreasonable, belief that it was necessary to save Thomas’s life. Id. The Court disagreed and held that the trial court did not abuse its discretion by refusing to instruct the jury on imperfect self-defense, because the instruction was without foundation in the evidence. Id. at 623 (¶ 14).

¶ 30. The Court held that the defendant, Morgan, did not present evidence to support an imperfect self-defense 'theory through witness testimony, nor did he introduce evidence that a jury could “infer” that Morgan feared for Thomas’s life that night. Id. at 623 (¶ 15). The Court stated that “[n]ot one witness testified or implied that Morgan killed Talbert to protect Thomas that night.” Id. at 623 (¶ 16). The Court stated that the “only theory presented through witnesses called by the defense was that Morgan was not the shooter.” Id. at 623 (¶ 16). And “Morgan presented no evidence that Morgan feared Talbert or believed Talbert to be a threat to Thomas, or, for that matter, that Morgan even was aware that Talbert was prevailing in a fight with Thomas, to provide a foundation for the requested [imperfect self-defense] instruction.” Id. at 623-24 (¶ 16). In other words, the Morgan Court upheld the rejection of a lesser-included offense, imperfect self-defense instruction in a case with similar facts, e.g., that the victim was larger, because the facts were not such that the juiy could find the requisite subjective belief. The record of the case sub judice likewise lacks evidence that Brown maintained the requisite subjective belief, and the Morgan Court rejected the State’s position—that such belief could be inferred from the circumstances. The underlying facts and defense theories in today’s case and Morgan are simply too similar to uphold the State’s requested imperfect self-defense instruction.

¶ 31. Moreover, given the facts of today’s case, we cannot agree that, if Brown had maintained the required subjective belief, it would have been an unreasonable one. In Young v. State, 99 So.3d 159, 160 (¶ 1) (Miss. 2012), Lonnie Young shot and killed his wife’s ex-lover, Otis Morgan. Young was convicted of murder. Id. Young testified that he had confronted Morgan at a family reunion. Id. at 161 (¶¶ 3—4). In response, Morgan had pulled a gun, which prompted Young to shoot and kill Morgan. Id. The State’s theory of the case was that Young had approached Morgan, who was unarmed, and shot and ..killed him. Id. Young requested a self defense instruction and an imperfect self-defense instruction. Id. at 162 (¶ 8). The trial court found that, while the facts in the case were sufficient to justify a self defense instruction, the facts did not justify imperfect self-defense. Id. The Court held that an imperfect self-defense instruction properly was refused. Id. at 165 (¶ 21). The Court reasoned:

Young’s own testimony was that Morgan had pulled a gun on him first; Morgan’s pulling a weapon on him was the only reason Young offered for killing Morgan. Taken as true, this showed that Young faced imminent danger and that his apprehension was objectively reasonable. This evidence did justify Young’s proffered self-defense jury instruction, which was properly granted. However, this evidence provides no evidentiary basis for the bona fide but unfounded belief required for an imperfect-self-defense instruction.

Young, 99 So.3d at 166 (¶ 22). The Court went on to name all of. the “facts that occurred [leading] up to the confrontation” that had to be “totally disregarded” by the trial court in order to approve the imperfect self-defense instruction:

Specifically, that Mr.. Young laid in wait and planned, waiting on Mr, Morgan, for him to arrive at this house for him to be confronted. He armed himself with a weapon. He knew there was going to be trouble. He testified that they had not had any argument, no dispute that day or any day prior to that. It was all based on something that happened three or four years earlier. So for [the trial court] to give, basically, [the imperfect-self-defense jury instruction] would be to totally disregard all of those facts.

Id. at 166 (¶ 23). The Court agreed and held that “based on the facts and testimony in the record, there [was] insufficient evidence to warrant an imperfect-self defense instruction.” Id.

¶ 32. While taking Young’s testimony as true, it was undisputed that he faced imminent danger and his apprehension was objectively reasonable. Id. at 166 (¶ 22). As a result, the Court held that “the evidence provided] no evidentiary basis for the bona fide but unfounded belief required for an imperfect-self-defense instruction.” Id. Because the victim was attacking Brown at the time of the shooting in the case sub judice, we cannot follow Young and hold that any belief Brown may have held regarding danger to himself would have been unreasonable in the face of the imminent danger confronting him.

¶ 33. The Court’s holdings in Young and Morgan conflict with the Court of Appeals’ opinion in the instant case. As in Young and Morgan, no evidentiary basis existed showing Brown had a bona fide but unfounded belief that shooting at Coleman was necessary to prevent death or great bodily harm. The trial court should have refused the State’s request for an imperfect self-defense instruction, as it did in Young and Morgan.

¶ 34. Because the imperfect self-defense instruction was without foundation in the evidence, we hold that the trial court abused its discretion in giving the instruction as a matter of law. No evidence was presented showing that Brown had an unfounded belief that he was facing imminent great bodily harm. Had evidence shown that Brown was winning the fight with Coleman or he had an opportunity to escape the fight, then an imperfect self-defense instruction might have been warranted.

CONCLUSION

¶ 35. The trial court erred in giving the imperfect self-defense instruction because there was no evidentiary basis in the record to support an imperfect self-defense instruction. Accordingly, the Court reverses the judgments of the Hinds County Circuit Court and the Court of Appeals and remands the case to the trial court for a new trial consistent with this opinion.

¶ 36. REVERSED AND REMANDED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      . Coleman was forty-five years old at the time of trial.

      . In Byrd, the Court described imperfect self-defense as a "defense theory.” Byrd, 158 So.3d at 1151 (¶ 16). Although imperfect self-defense often is raised by a defendant as a "defense theory,” imperfect self-defense is not a defense to a criminal act. Ronk, 172 So.3d at 1126 (¶ 22). Instead, imperfect self-defense constitutes the criminal offense of manslaughter. Cook, 467 So.2d at 207.

      . Whether imperfect self-defense manslaughter is a lesser included offense or a lesser nonincluded offense of depraved heart murder is not an issue raised by Brown or the State.


text:
    Clyde Delbert ESPLIN v. Rebecca Carol ESPLIN
    2015-CT-00727-COA
    Supreme Court of Mississippi.
    Filed: 04/25/2017
    Closed: 07/20/2017
   Motion Desc: Petition for Certiorari by Appellant Clyde Esplín

Certiorari—Denied


text:
    Bennie BEAL v. STATE of Mississippi
    2014-CT-01424-COA
    Supreme Court of Mississippi.
    Filed: 04/25/2017
    Closed: 07/20/2017
   Motion Desc: BEAL PETITION FOR WRIT OF CERTIORARI

Certiorari—Denied


text:
    Margaret MAGERS v. DIAMONDHEAD RESORT, LLC
    2015-CT-01330-COA
    Supreme Court of Mississippi.
    Filed: 04/26/2017
    Closed: 07/20/2017
   Motion Desc: Petition for Writ of Certiorari

Certiorari—Denied


text:
    James RATCLIFF v. STATE of Mississippi
    2014-CT-01698-COA
    Supreme Court of Mississippi.
    Filed: 05/08/2017
    Closed: 07/27/2017
   Motion Desc: Petition for Certiorari

Certiorari—Denied


text:
    Marvin Rerocukus Demond CARVER v. STATE of Mississippi
    2015-CT-00384-SCT
    Supreme Court of Mississippi.
    Filed: 5/10/2017
    Closed: 7/27/2017
   Motion Desc: Petition for Writ of Certiorari

Certiorari—Granted


text:
    CITY OF MERIDIAN, Mississippi v. Adam MEADORS
    2015-CT-00767-COA
    Supreme Court of Mississippi.
    Filed: 05/16/2017
    Closed: 07/20/2017
   Motion Desc: Appellees Motion For Writ of Certiorari

Certiorari—Denied


text:
    Sara Jane KOCH v. STATE of Mississippi
    2015-CT-01228-COA
    Supreme Court of Mississippi.
    Filed: 05/23/2017
    Closed: 07/27/2017
   Motion Desc: Petition for Writ of Certiorari

Certiorari—Denied


author: MICHAEL K. RANDOLPH,

text:
    Thomas Edwin LODEN, Jr. v. STATE of Mississippi
    No. 2016-DR-00962-SCT
    Supreme Court of Mississippi.
    May 23, 2017
    Rehearing Denied August 10, 2017

      TO AGREE: RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ.
   EN BANC ORDER

MICHAEL K. RANDOLPH,

PRESIDING JUSTICE FOR THE COURT

Before the Court, en banc, is Thomas Loden’s Successive Petition for Post-Conviction Relief, the State’s Response, and Loden’s Reply. Restated, Lo-den’s issue was whether the State’s use of midazolam as part of the three-drug, lethal-injection protocol violates Mississippi Code Section 99-19-51 (Supp. 2016) because it is not an “ultra-short acting barbiturate or other similar drug.” However, the Legislature has since amended Section 99-19-51. See 2017 Miss. Laws H.B. 638. The statute now requires an “appropriate anesthetic or sedative,” as defined by the new statute. The statute having been amended, Loden’s issue becomes moot. After due consideration, the Court finds that the successive petition should be dismissed as moot.

IT IS THEREFORE ORDERED that the Successive Petition for Post-Conviction Relief filed by Thomas Loden is dismissed as moot.

SO ORDERED.

DICKINSON, P.J., AGREES WITH ORDER WITH SEPARATE WRITTEN STATEMENT.

KITCHENS, J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY WALLER, C.J., AND KING, J.

DICKINSON, PRESIDING JUSTICE, AGREEING WITH ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 1. As a matter of fairness, this Court generally does not decide cases or dispose of motions for reasons the losing parties have had no opportunity to brief. Today we do so because Loden’s claim was based on a portion of Section 99-19-51 that was amended while his motion was pending before this Court. He now is subject to a new version of Section 99-19-51. The basis for today’s order is the mootness of his current claim, and in no way addresses whether midazolam is or is not a permissible drug under the statute now in effect.

KITCHENS, JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 2. In view of the statutory change, I would order supplemental briefing to allow the parties the opportunity to present arguments under the new statute.

WALLER, C.J., AND KING, J., JOIN THIS SEPARATE WRITTEN STATEMENT.

      . The purpose of judicial opinions and orders is to vet opposing views, determine which viewpoint best comports with the rule of law, and rule accordingly, We decline to advise Loden and/or his very experienced counsel on a way to proceed with any future claims for “[i]t is not within the province of this Court to render advisory opinions.” Hughes v. Hosemann, 68 So.3d 1260, 1263 (Miss. 2011). See also Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 93 (Miss. 2010) ("[T]his Court does not issue advisory opinions.").


author: WILSON, J.,

text:
    Shawn Richard O’HARA, Appellant v. CITY OF HATTIESBURG, Mississippi, Appellee
    NO. 2015-CP-00911-COA
    Court of Appeals of Mississippi.
    03/21/2017
    Rehearing Denied July 25, 2017

      FORREST COUNTY CIRCUIT COURT, HON. ROGER B. HELFRICH, J.
    ATTORNEY FOR APPELLANT: SHAWN RICHARD O’HARA (PRO SE)
    ATTORNEYS FOR APPELLEE: R. LANE DOSSETT, L. CLARK HICKS JR.
    BEFORE GRIFFIS, P.J., BARNES AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. On February 7, 2014, Shawn O’Hara was walking across South 28th Avenue in Hattiesburg when the street suddenly caved in and his left leg went under the street to his knee. O’Hara managed to avoid oncoming traffic and crawl out of the road, and an ambulance transported him to the emergency room. Almost a year later, O’Hara filed suit against the City of Hat-tiesburg in the Forrest County Circuit Court. He alleges that he is entitled to recover $300,000 in actual damages, including past and future medical expenses, pain and suffering damages, and $280,000 in lost earnings on his third motion picture, Dixie Lady, the film’s production apparently having been derailed by his injuries. O’Hara also demands $24,700,000 in punitive damages.

¶ 2. The circuit court dismissed O’Hara’s complaint without prejudice for insufficient service of process and failure to provide proper pre-suit notice under the Mississippi Tort Claims Act (MTCA). The court also denied O’Hara’s subsequent motion for reconsideration. For the reasons that follow, we affirm the dismissal of the action. Additional facts are discussed as necessary in the course of our analysis.

DISCUSSION

I. Insufficient Service of Process

¶ 3. Mississippi Rule of Civil Procedure 4(d)(7) provides that service of process on a municipal corporation shall be “by delivering a copy of the summons and complaint to the mayor or municipal clerk.” O’Hara initially served the city attorney’s wife and later served the city attorney. Neither attempt at service satisfied Rule 4(d)(7).

¶4. However, the circuit court dismissed the complaint for insufficient service of process on March 2, 2015, only a little over three week's after the complaint was filed. Rule 4(h) provides that a plaintiff has 120 days in which to serve the defendant. “[U]ntil that 120-day period has expired, any attempt to seek dismissal on the grounds of defective service clearly would be- premature.” McGinnis v. Shalala, 2 F.3d 548, 551 (5th Cir. 1993) (applying then-Federal Rule of Civil Procedure 4(j), subsequently relettered as Rule 4(m)); accord State Farm Fire & Cas. Co. v. Smith, 39 So.3d 1172, 1174 (Ala. Civ. App. 2009) (applying Alabama Rule of Civil Procedure 4(b) and holding that a trial court cannot dismiss a complaint for insufficient service within the 120-day period permitted for service).

¶ 5. The record indicates that O’Hara served both the mayor and the “acting city clerk” on April 30, 2015,'only eighty-three days after he filed suit. O’Hara thereby satisfied the requirements of Rule 4. Although he effected service after the' circuit court’s order dismissing the case, his motion for reconsideration was pending, and he was still well within the 120-day period allowed by Rule 4. The prior order dismissing the case was premature to the extent it was based on insufficient service of process. Therefore, we must determine whether dismissal was proper because O’Hara failed to provide proper pre-spit notice under the MTCA.

II. Insufficient Pre-Suit Notice

¶ 6. Under the MTCA, prior to filing suit against a municipality, a claimant must serve a notice of claim on the city clerk. Miss. Code Ann. § 11—46—11 (1)—(2) (Rev. 2012). The notice must:

(i) Be in writing;
(ii) Be delivered in person or by registered or certified United States mail; and
(iii) Contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought, and the residence of the person making the claim at the time of the injury arid at the time of filing the notice.

Id. § 11-46-11(2)(b). Mississippi law “requires substantial compliance with the notice requirements of Section 11-46-11(2).” Lee v. Mem’l Hosp. at Gulfport, 999 So.2d 1263, 1266 (¶ 9) (Miss. 2008).

'' ¶ 7. ''“Pursuant to [section] 11-46-11(2), there áre seven , required categories of information which must be included”:

(1) the circumstances which brought about the injury;
(2) •. the extent of the injury;
(3) the time and place the injury occurred;
(4) the names of all persons known to be involved;
(5) the amount of money damages sought;
(6) the residence of the person making the claim at the time of the injury; and
(7) the claimant’s residence at the time of filing the notice.

S. Cent. Reg’l Med. Ctr. v. Guffy, 930 So.2d 1252, 1257 (¶ 18) (Miss. 2006); accord Saul ex rel. Heirs of Cook v. S. Cent. Reg’l Med. Ctr. Inc., 25 So.3d 1037, 1041 (¶ 12) (Miss. 2010).

¶8. “The purpose of the [pre-suit notice requirement] is to insure that governmental [entities] ... are informed of claims against them.” Reaves ex rel. Rouse v. Randall, 729 So.2d 1237, 1240 (¶ 9) (Miss. 1998). “[T]he determination of substantial compliance is a legal, though fact-sensitive, question and is, therefore, necessarily decided on an ad hoc basis.” Marbly v. Manuel, 2014-CA-01171-COA, 210 So.3d 1033, 1036, 2015 WL 4741861, at *2 (¶ 7) (Miss. Ct. App. Aug. 11, 2015) (quoting Webster v. City of D’Iberville City Council, 6 So.3d 448, 451 (¶ 8) (Miss.Ct. App. 2009)).

¶ 9. At the hearing in the circuit court on the City’s motion to dismiss, counsel for the City informed the. court that after the motion .was filed, he received a handwritten note that O’Hara had submitted to the City at some point prior to filing suit. Counsel argued that the notice did not substantially comply with section 11-46-11. The circuit judge asked to see the notice, and it was handed to him, but it was never entered into evidence or otherwise included in-the record. In response, O’Hara asserted that he provided the City with a typed notice of claim in February 2014; however, he never produced a copy of any such document in the circuit court. O’Hara also claimed that he had talked to the City’s human resources director and its insurance company about his claim and provided his medical bills to them.

¶ 10. In its order dismissing the case, the circuit court stated that it had reviewed the handwritten notice and that it was “insufficient pursuant to [section] 11-46-11 because it failfed] to contain several of the seven required categories of information, and [was] therefore not in substantial compliance with [the] statute.” The court specifically stated that the notice “fail[ed] to include the extent of the injury, names of all persons involved, and the residence of the Plaintiff both at the time of the injury and at the time of the filing of the notice”’ For this reason, the circuit court concluded that the case should be dismissed for failure to comply with section 11-46-11.

¶ 11. O’Hara subsequently filed a motion for reconsideration and later filed additional untimely motions, but he never attempted to include a copy of any notice of claim in the record. Thus, the record does not include a copy of O’Hara’s handwritten notice of claim or any other alleged notice of claim.

¶ 12. “It is an appellant’s duty to justify his arguments of error with a proper record or the trial court will be considered correct. The record on appeal must show such portions of the record of the trial court as are necessary for a consideration of the questions presented.” Pennington v. Dillard Supply, Inc., 858 So.2d 902, 903 (¶ 5) (Miss.Ct.App.2003) (internal citation omitted). Here, the trial court reviewed O’Hara’s handwritten notice of claim and found that it was insufficient to satisfy section 11-46-11. O’Hara challenges that finding on appeal, but wé are unable to consider his argument because he failed to see that the record included a copy of the notice for this Court to review. Accordingly, the circuit court’s ruling that O’Hara failed to substantially comply with the MTCA’s pre-suit notice requirement “will be considered correct.” Pennington, 858 So.2d at 903 (¶ 5). If a plaintiff in an MTCA case fails to provide proper notice prior to filing suit, the complaint should be dismissed without prejudice. See Tallahatchie Gen. Hosp. v. Howe, 154 So.3d 29, 32 (¶¶ 11-13) (Miss. 2015). Therefore, we affirm.

¶ 13. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, GREENLEE AND WESTBROOKS, JJ., CONCUR. FAIR, J., NOT PARTICIPATING.

      . For purposes of this appeal from an order dismissing O’Hara's complaint, we accept the complaint's well-pled factual allegations as true. See, e.g., Penn Nat’l Gaming, Inc. v. Ratliff, 954 So.2d 427, 430-31 (¶ 6) (Miss. 2007).