David D. O'Donnell

Office of the Attorney GeneralOctober 2, 2017

2017 WL 5558441 (Miss.A.G.)
Office of the Attorney General
State of Mississippi
*1 Opinion No. 2017-00275
*1 October 2, 2017

Re: Relocation of Confederate Statue

*1 David D. O'Donnell
*1 Lafayette County Board Attorney
*1 Clayton O'Donnell, PLLC
*1 P.O. Box 676
*1 Oxford, MS 38655
Dear Mr. O'Donnell:
*1 Attorney General Hood is in receipt of your request for an official opinion, and it has been assigned to me for research and reply.
Background and Questions Presented
*1 Your letter states:
*1 On behalf of the Lafayette County Board of Supervisors, I request an opinion on whether, pursuant to Miss. Code Ann. Section 55-15-81, the Board has the discretion to relocate a statue, erected on the courthouse grounds in 1907 in honor of those who served in the military on the side of the Confederacy, at a location outside Lafayette County in the event the Board determined, in its discretion, the other location was more appropriate in displaying the statue.
*1 Section 55-15-81 generally prohibits the removal, relocation, alteration, renaming and rededication of any statue, monument, memorial or nameplates ““which have been erected on public property of the state or any of its political subdivisions, such as local, municipal or county owned public areas ....” However, subsection 2 of this provision also provides that “the governing body may move the memorial to a more suitable location if it is determined that the location is more appropriate to displaying the monument.”
*1 In determining whether another location is “more suitable” as being “more appropriate to displaying the monument,” is the Board necessarily limited to considering locations within the County or may it also consider locations outside the county for potential relocation of the Confederate statute?
*1 Also, in the event the Board determines, in its discretion, to relocate the memorial to a more suitable location, must the location be on public land?
Applicable Law and Analysis
*1 In response, the Mississippi Military Memorial Protection Act, 2004 Mississippi Laws, Ch. 463, codified at Section 55-15-81 of the Mississippi Code, prohibits the relocation, removal, or alteration of certain memorials and monuments and states, in relevant part:
*1 (1) None of the following items, structures or areas may be relocated, removed, disturbed, altered, renamed or rededicated: Any Revolutionary War, War of 1812, Mexican-American War, War Between the States, Spanish-American War, World War I, World War II, Korean War, Vietnam War, Persian Gulf War, War in Iraq or Native American War's statues, monuments, memorials or nameplates (plaques), which have been erected on public property of the state or any of its political subdivisions, such as local, municipal or county owned public areas, and any statues, monuments, memorials, nameplates (plaques), schools, streets, bridges, buildings, parks preserves, reserves or other public items, structure or areas of the state or any of its political subdivisions, such as, local, municipal or county owned public areas, which have been dedicated in memory of, or named for, any historical military figure, historical military event, military organization or military unit.
*2 (2) No person may prevent the public body responsible for maintaining any of the items, structures or areas described above from taking proper measures and exercising proper means for the protection, preservation, care, repair or restoration of those items, structures or areas. The governing body may move the memorial to a more suitable location if it is determined that the location is more appropriate to displaying the monument.
*2 (Emphasis added).
*2 Your questions require this office to examine the intent of the language found in Section 55-15-81. Rules of statutory construction are applied when a statute is ambiguous, has conflicting provisions within it, or conflicts with another statute. Mississippi Gaming Comm'n v. Imperial Palace of Mississippi, Inc., 751 So.2d 1025 (Miss. 1999). Here, the ambiguity arises from a simultaneous proscription against “removal” of monuments along with an express authorization to “move” those same monuments.
*2 A well-established legal principle of statutory construction is that in construing a statute, the courts must seek to ascertain the legislative intent of the statute in question as a whole, taking into consideration each provision of the statute. McCaffrey's Food Market, Inc. v. Mississippi Milk Commission, 227 So.2d 459 (Miss. 1969). Further, all parts of a statute are to be given effect if possible. Mississippi Public Service Commission v. City of Jackson, 328 So.2d 656 (Miss. 1976). Legislative intent should be sought from the statute as a whole and not from a segregated portion considered apart from the rest of the statute. McCluskey v. Thompson, 363 So.2d 256 (Miss. 1978); Broadhead v. Monaghan, 238 Miss. 239, 117 So.2d 881 (1960). “It is the general rule that in construing statutes this Court will not only interpret the words used, but will consider the purpose and policy which the legislature had in view of enacting the law. The Court will then give effect to the intent of the legislature.” Roberts v. Mississippi Republican Party State Exec. Comm., 465 So.2d 1050, 1052 (Miss. 1985); Aikerson v. State, 274 So.2d 124, 127 (Miss. 1973). “In construing statutes, all statutes in pari materia are taken into consideration, and a legislative intent deduced from a consideration as a whole.” Roberts at 1052. See also, Brady v. John Hancock Mutual Life Ins. Co., 342 So.2d 295, 298 (Miss. 1977)(“[T]he legislature's intention must be determined by the total language of the statute and not from a segment considered apart from the remainder that the overall intention may be decided without adjudicating which of two provisions prevail.”); and, Coker v. Wilkinson, 142 Miss. 1, 106 So. 886, 887 (1926)(“[A] statute must receive such a construction that it will, if possible, make all of its parts harmonize with each other and render them consistent with its purpose and scope.”).
*2 Reading the entire statute as a whole and giving effect to all of its provisions, it is our opinion that a monument may be “moved” pursuant to its second subsection only to the extent that such movement does not amount to a prohibited “removal” or “relocation” under the first subsection. In the case of the county, for example, a monument may be “moved” within the county jurisdictional limits to some other more suitable location on county property; this may be done upon a finding by the board of supervisors that such location is more appropriate for displaying the monument. A monument may not be ““removed” from the county or from public property. Applying the statute in this manner gives effect to all of its provisions without negating any of them.
*3 We also point out that any alteration of the monument in question requires authorization by the Board of Trustees of the Mississippi Department of Archives and History pursuant to the Mississippi Antiquities Law, Miss. Code Ann. Section 39-7-1, et seq.
*3 Please let us know if this office may be of further assistance.
*3 Jim Hood
*3 Attorney General
*3 By: Mike Lanford
*3 Deputy Attorney General
2017 WL 5558441 (Miss.A.G.)
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