Tuesday, January 2, 2024, 11:49 am News Flash Archive

Leflore County Chancery Court Judge Willie J. Perkins, Sr. has entered his written orders in the lawsuit filed by the Leflore County Board of Supervisors against Greenwood Fire Chief Marcus Banks and the city of Greenwood. That lawsuit seeks to eject Mr. Banks from the Board of Trustees of the Greenwood Leflore Hospital.

At a hearing held December 20, 2023, Perkins ruled from the bench that Banks is removed immediately, but these orders provide more detail into the court's reasoning and conclusions in the matter.

The Taxpayers Channel originally reported the county's lawsuit, and its request for an emergency injunction against Banks continuing to serve as a hospital trustee. Banks' term had expired in June 2023, but he had "held over" and continued to serve when the city and county could not agree on his replacement. See our previous reporting here: Leflore County supervisors sue city of Greenwood, fire chief over hospital board appointment

Banks and the city had asked Judge Perkins to recuse himself from the case, citing several instances in which Perkins had represented his wife and others against the city and its mayor, Carolyn McAdams.

But Judge Perkins denied the recusal request, and in his written order, provided several reasons explaining his decision.

The court begins by listing 4 lawsuits in which Judge Perkins, while he was a private attorney, represented his clients against the city and/or Mayor McAdams. Then the court points out:

Respondents [city and Banks] make a summary conclusion that due to the Court's involvement in these cases, the Court's impartiality is in issue toward Mayor Carolyn McAdams and that the above trials and subsequent appeals demonstrate a likelihood of personal bias and prejudice against Mayor McAdams. The Court will note from the outset the above cases ended within the periods of 6 years, 7 years, 11 years, and 12 years ago.

Next, Judge Perkins points out that he did recuse himself recently from the Marcus Banks divorce case, because he had previously consulted with Mrs. Banks in the matter.

Next, Judge Perkins points out that the motion for recusal did not have the mandatory affidavit attached as required by the chancery court rules:

Under Rule 1.11 a motion seeking recusal shall be filed with an affidavit of the party or the party's attorney setting forth the factual basis underlying the asserted grounds for recusal and declaring that the motion is filed in good faith and that the affiant truly believes the facts underlying the grounds stated to be true.

As noted earlier, Respondents failed to file an affidavit with their Motion to Recuse. . . .

Since Respondents have failed to meet the mandatory requirement of the Rule, their Motion to Recuse is hereby denied and dismissed.

The city and Mr. Banks had attempted to cure this fatal defect by filing an amended motion with the required affidavit just one day before the scheduled hearing.

Judge Perkins did address the claim that he should recuse himself due to possible bias or prejudice based upon his prior representation in other matters against some of the litigants:

Mississippi law presumes 'that a judge, sworn to administer impartial justice, is qualified and unbiased' . . . The challenger bears the burden of overcoming this presumption 'by evidence which produces a reasonable doubt about the validity of the presumption' . . . .

Respondents have failed to meet their burden to overcome this presumption. . . .

Respondents have assumed without any proof that personal bias or prejudice automatically flows from this Court's involvement in prior cases wherein Mayor McAdams may have been a party or person of interest. Other than the normal course of litigation, Respondents provide no evidence of conflict or bias or prejudice.

Further, Respondents failed to prove that any asserted bias or prejudice by this Court against Mayor McAdams somehow translate to any party before this Court.

The mere citing of some cases this Court has participated in during the past does not satisfy the burden Respondents must meet. The cases relied upon by Respondents are more than 6 years ago and are considered to be past history.

Respondents are requesting this Court to draw an inference or summary conclusion from the prior history of litigation with this Court's spouse with Mayor McAdams.

This Court declines to travel that road.

And so Judge Perkins denied the motion to recuse:

. . . the Motion To Recuse is denied because Respondents failed to meet their burden by a reasonable doubt to overcome the 'presumption of impartiality [that] exists that a judge, sworn to administer impartial justice, is qualified and unbiased.'

Judge Perkins' rejection of the call to recuse himself may be seen here: Order Denying Motion for Recusal

In the court's written order deposing Banks from the hospital board, Judge Perkins agreed with the county's argument that the Banks appointment is an appointment by a municipality, even though as a joint appointment, it also requires the concurrence and joint agreement from the county.

Therefore, according to the court, as a municipal appointment, the limit on holding over applies, and must be based upon "the authority given to him to hold over."

But the court could not find any such authority for Banks to hold over. It is not found in the section of the law providing for the appointment of hospital board appointments.

Ironically, Judge Perkins represented James Littleton when his term expired as city attorney back when Mayor McAdams took office. Littleton and Perkins had argued that Littleton could "hold over" until the city council approved Mayor McAdams' appointment of a new city attorney.

But as Judge Perkins recites, he and Littleton lost that case on appeal to the state Supreme Court:

James Littleton, City Attorney of Greenwood, was terminated at the end of his term by the incoming and new Mayor, Carolyn McAdams. Littleton announced to the Greenwood City Council that he was statutorily authorized to continue to serve as a holdover appointee until the mayor nominates and the council approves his replacement.

Mayor McAdams sought injunctive and declaratory relief against James Littleton to prevent him from serving as a holdover city attorney. The Chancery Judge granted the Mayor's Petition for relief and Littleton appealed to the Supreme Court. On appeal the Supreme Court held that Section 25-1-7 did not give James Littleton the right to holdover and stated as follows:

'Under its plain language, the statute applies only to positions that -- from some other source -- have been granted power to hold over. Littleton cites no authority or other source for his assertion that, when his term ended, he had the right to hold over.'

The instruction from Littleton supra is [that] one cannot hold over unless you can point to some statute giving you holdover authority or holding over authority 'from some other source.'

Littleton was unable to identify any statute or some other source granting him holdover authority and the Supreme Court affirmed the ruling of the trial Judge.

Judge Perkins pointed out that neither the city council resolution nor the county board order appointing Mr. Banks to the position back in 2018 granted him any authority to "hold over":

The City's Resolution appointed Mr. Banks to the Greenwood Leflore Hospital Commission as the joint appointment with . . . Leflore County for the term to be effective immediately and to expire on June 1, 2023. There is no language in the City's Resolution granting holdover authority to him.

Leflore County passed and entered an Order approving the recommendation by the City to appoint Mr. Banks to the Greenwood Leflore Hospital Board of Commissioners for a five-year period, beginning September 24, 2018.

Similar to the City's Resolution, the County's Order lacks any language granting holdover authority to Mr. Banks.

Consequently, Mr. Banks is unable to meet the Littleton's Test to holdover 'upon the authority given to him to hold over.'

Judge Perkins also addressed a different claim made by the city and Banks that he is serving as a "de facto" official. There are subtle differences between a "hold over" official and a "de facto" official, with a "de facto" official actually serving contrary to the law. Perkins cites an Attorney General opinion that indicates that such a person may be subject to liability for so serving. Quoting the AG opinion:

'If the Trustee is acting as a de facto officer, Miss. Code Ann. Section 25-1-37 is applicable, and the Trustee's actions on the board are valid and binding as official acts. While the Trustee's actions may be valid and binding, this same provision of law recognizes that the Trustee could also be liable for unlawfully holding office and exercising the functions thereof.'

But Judge Perkins noted that the city and Banks did not put on any factual evidence to show that Banks qualified as a "de facto" official. Though present at the hearing, Banks was never called as a witness.

The same AG's opinion also warned:

'We also note that we find no authority in Miss. Code Ann. Section 41-13-29 for a community hospital trustee to serve in a holdover capacity until a successor is appointed.'

Judge Perkins also addressed the issue whether the county and the citizens could suffer damage were Banks left in place as a hold over hospital trustee:

The County relies on Section 21-15-41(1) which states: 'No person shall serve in an interim or hold-over capacity for longer than ninety (90) days in a position that is required by law to be filled by appointment of the governing body of a municipality. . . ' This statute also provides that 'any action or vote taken by such person after the ninety-day period shall be invalid and without effect.'

It is general common knowledge that the Greenwood Leflore Hospital is a financially distressed hospital and is losing money.

As a joint owner of the Hospital, Leflore County is concerned that motions and/or seconds and votes taken by Mr. Banks are illegal and could jeopardize effort[s] of the Hospital Board and/or City and County to take appropriate actions and measure[s] to financially support the hospital.

The Court finds that the injunction is necessary to prevent irreparable harm.

For these and other reasons, the Court entered a preliminary injunction against Mr. Banks continuing to serve as a hospital trustee:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Mr. Marcus Banks is enjoined from serving as a holdover commissioner and is enjoined from serving in any capacity of the Greenwood Leflore Hospital effective immediately.

Judge Perkins' order may be seen here: Preliminary Injunction

Meanwhile, the city and Mr. Banks have filed their formal answer to the county's complaint. Because the court's order issuing an injunction is only temporary, the case is not yet concluded, and no doubt there will be additional filings and possibly hearings before the court will consider issuing a permanent injunction.

The city and Banks generally deny all the substantive allegations made by the county in its complaint.

In addition, the city and Banks plead the doctrine of clean hands, which is a defense in equity that bars the plaintiff from obtaining any relief from the court because of the plaintiff's own misconduct.

The answer doesn't specify the nature of the county's "unclean hands," but previous filings by the city and Banks suggest it relates to the county "holding over" some of its own appointees illegally, while accusing the city and Banks of doing the same thing.

Additionally, the city and Banks have complained of the county refusing to negotiate in good faith with the city regarding a suitable candidate for the joint appointment held by Banks.

The answer filed by the city and Banks may be seen here: Answer by Greenwood and Banks to the County Supervisors' Complaint

It will be interesting to see what additional pleadings and arguments are filed in this case before Judge Perkins rules on the request by the county for a permanent injunction against the city and Mr. Banks.

To review our reporting on GLH and its financial woes, please see here: Index of Greenwood Leflore Hospital news articles

 

John Pittman Hey
The Taxpayers Channel

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