The Honorable Ashby Foote, 2015 WL 9264842 (2015)

2015 WL 9264842 (Miss.A.G.)

Office of the Attorney General

State of Mississippi
Opinion No. 2015-00405
November 6, 2015

Re: Council Votes - Abstentions

*1 The Honorable Ashby Foote

Councilman
Ward 1
City of Jackson
Post Office Box 17
Jackson, Mississippi 39205-0017

Dear Councilman Foote:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Issue Presented

You cite Mississippi Code Section 21-8-11 (Revised 2015) which provides that a majority of the members of the City Council
constitutes a quorum and requires the affirmative vote of a majority of the quorum to pass any measure.

You then state your understanding that an abstention is neither a vote in favor nor against a measure and, therefore, should not
be considered “an affirmative vote” under Section 21-8-11 and ask if your understanding is correct.

Response

Yes, your understanding is correct.

Applicable Law and Discussion

The general rule is that abstentions are counted with the prevailing side. See MS AG Ops. Montgomery (June 29, 2012) and
Kramer (April 11, 2008). However, there are exceptions to the general rule when a statute or a lawfully adopted rule of procedure
directs otherwise. The Mississippi Supreme Court in Ezell v. City of Pascagoula, 240 So. 2d 700 (Miss. 1970) rejected the
argument that an abstention should be counted as an affirmative vote pursuant to a statute that required an affirmative vote of
a majority of all the members of the council.

In Ezell, the vote on a particular measure by a six (6) member voting council was three (3) for, one (1) against, one (1) absent
and one (1) abstention. A majority of all the members of that council is, obviously, four (4). The Court said:

Mississippi Code 1942 Annotated Section 3825.5-28 (1956) provides:

At all meetings of the council, a majority of the members thereof shall constitute a quorum, and the affirmative vote of a
majority of all of the members of the council shall be necessary to adopt any motion, resolution or ordinance, or to pass
any measure whatever, unless a greater number is provided in this act. Upon every vote taken by the council, the yeas and
nays shall be called and recorded * * *. (Emphasis added).

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The Honorable Ashby Foote, 2015 WL 9264842 (2015)

Mississippi Code 1942 Annotated Section 3825.5-28 (1956) is in nowise ambiguous as to its requirement that the affirmative
vote of a majority of all of the members of the council shall be necessary to adopt any motion, resolution, ordinance, or to pass
any measure whatsoever. The requirement is mandatory and is so clear as to be incapable of being misunderstood.

The Legislature, for reasons which it must have considered sufficient, has provided that the affirmative vote of a majority of
all of the members of the council shall be required. There is no ambiguity in this provision and it must be construed as written.
In the present case, the affirmative vote of at least four members of the six member council were required to adopt the motion.
Other courts, construing similar statutes, have reached the same conclusion. Steers Sand & Gravel Corp. v. Village Board of
Village of Northport, Sup., 129 N.Y.S.2d 403 (1954); Van Cleve v. Wallace, 216 Minn. 500, 13 N.W.2d 467 (1944); Hopkins
v. MacCulloch, 35 Cal.App.2d 442, 95 P.2d 950 (1939); Ross v. Miller, 115 N.J.L. 61, 178 A. 771 (1935); McCormick v. Bay
City, 23 Mich. 457 (1871).

*2 Section 21-8-11(2) contains language substantially similar to the statute addressed in Ezell:
... At any and all meetings of the council, a majority of the members thereof shall constitute a quorum and the affirmative vote
of a majority of the quorum at any meeting shall be necessary to adopt any motion, resolution or ordinance, or to pass any
measure whatever unless otherwise provided in this chapter ...

Conclusion

Based on the above cited and quoted authorities, we are of the opinion that an abstention does not count as an affirmative vote
when the applicable statute requires “the affirmative vote of a majority of the quorum.”
Sincerely,

Jim Hood
Attorney General
By: Phil Carter
Special Assistant Attorney General

2015 WL 9264842 (Miss.A.G.)

End of Document © 2021 Thomson Reuters. No claim to original U.S. Government Works.

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