Harper v. Board of Supervisors of Warren County, Mississippi et al
ORDER granting 3 Motion for Preliminary Injunction. Signed by District Judge Carlton W. Reeves on 7/16/21. (AC)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
KENNETH M. HARPER
CAUSE NO. 3:21-CV-60-CWR-FKB
BOARD OF SUPERVISORS OF
WARREN COUNTY, MISSISSIPPI, et al.
Before the Court is the plaintiff’s motion for preliminary injunction. Docket No. 3. On
review, the motion will be granted.
Factual and Procedural History
The facts are drawn from the verified complaint and the documentary record.
In November 2019, Kenneth M. Harper was elected by the voters of Warren County,
Mississippi, to serve as the County Prosecuting Attorney.
On September 14, 2020, frustrated with ongoing salary negotiations, Harper sent a letter
to the Warren County Board of Supervisors resigning his position effective at 5:00 P.M. that day.
Three days later, he sent a letter to the Board “withdrawing and rescinding” his resignation letter.
Harper claims he was encouraged to withdraw his resignation by a local Judge and the Board
President. The Board subsequently removed his resignation from its September 21 meeting
On October 20, 2020, the Board met in executive session to consider Harper’s resignation
and withdrawal of resignation. No further action was taken that day. Harper contends that the
Board’s renewed interest in removing him was due to pressure from the same local Judge. She
told the Board that she now believed Harper was serving illegally in light of his resignation letter
and that the Board members could be individually liable for any money the County paid Harper.
At some point, the Board stopped paying Harper for his work.
On December 21, 2020, the Board met again to consider Harper’s situation. The meeting
minutes state that the Board accepted his resignation letter “for information,” while a Board
Order issued later that day stated that the resignation was “received and spread across the
minutes.” The Board ordered that a special election for the seat be held in 2021 and subsequently
appointed an Interim County Prosecuting Attorney.
This suit followed. Harper argues that as an elected official, he held and continues to hold
a property interest in his position, and was not lawfully removed by the Board. The Board’s
December 2020 “acceptance” of his resignation was invalid, Harper says, because at common
law officers were permitted to withdraw letters of resignation that had not yet been accepted by
the governing authority. Harper claims that he adhered to the common law by withdrawing his
letter of resignation prior to the Board taking any action.
Now before the Court is Harper’s motion for preliminary injunction, the Board’s
response, and supplemental letter briefs from each party.
To receive a preliminary injunction, the movant must show “(1) a substantial likelihood
of success on the merits; (2) a substantial threat of irreparable harm if the injunction is not
granted; (3) that the threatened injury outweighs any harm that the injunction might cause to the
defendant; and (4) that the injunction will not disserve the public interest.” Opulent Life Church
v. City of Holly Springs, Miss., 697 F.3d 279, 288 (5th Cir. 2012) (citation omitted). “Each of
these factors presents a mixed question of fact and law.” Id. (citation omitted).
“A preliminary injunction is an extraordinary remedy. It should only be granted if the
movant has clearly carried the burden of persuasion on all four . . . prerequisites.” Miss. Power &
Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
Harper has presented a strong case for injunctive relief. The Board acknowledges that
Harper has a property interest in his office. See Docket No. 13 at 7. “An elected . . . official who
is entitled to hold an office under state law has a property interest in his office which can be
taken from him only by procedures meeting the requirements of due process.” Crowe v. Lucas,
595 F.2d 985, 993 (5th Cir. 1979).
It also is undisputed that at common law, “a resignation must be accepted before it can be
regarded as complete.” Edwards v. United States, 103 U.S. 471, 475 (1880).
This acceptance may be manifested either by a formal declaration, or by the
appointment of a successor. ‘To complete a resignation,’ says Mr. Willcock, ‘it is
necessary that the corporation manifest their acceptance of the offer to resign,
which may be done by an entry in the public books, or electing another person to
fill the place, treating it as vacant.’ Willcock, Corporations, 239.
Id. at 474.
Here, the parties quibble about whether or not the Board formally accepted Harper’s
resignation in December 2020. But that is not the relevant question. The legal standard instead
asks us to compare the date of the resignation’s withdrawal with the date of its acceptance. And
here, no matter whether the December actions constituted “acceptance,” it is plain that Harper
withdrew his resignation three months beforehand. Under the ordinary operation of law,
therefore, he should have remained in office. See id. (“[W]e must assume that the common-law
rule prevails unless the contrary be shown.”).
The Board nevertheless presents three arguments against relief.
First, the Board claims that Harper’s letter of resignation was self-executing, as it said
that his resignation would be effective at 5:00 P.M. that day. The Board, however, has not
provided any Mississippi authority stating that the effective date of a resignation necessarily
controls or precludes its subsequent withdrawal. That is explicitly not the standard provided at
common law. See id.
Second, the Board argues that Harper’s suit is too late, citing the 10-day appeal time
provided in Mississippi Code § 11-51-75. While a state-court bill of exceptions action is indeed
due within 10 days, per § 11-51-75, a federal-court action claiming a federal constitutional
violation is instead bound by the usual § 1983 statute of limitations. Griggs v. Chickasaw Cty.,
Miss., 930 F.3d 696, 703 (5th Cir. 2019). It is undisputed that Harper’s federal claim was timely
filed under the § 1983 statute of limitations.
Finally, the Board argues that this action is moot because another attorney has been
appointed as Interim County Prosecuting Attorney. The Court respectfully disagrees. Harper’s
request for an injunction is not moot, as he remains separated from the public office to which he
The final three elements of the preliminary injunction standard are met. “When an alleged
deprivation of a constitutional right is involved, most courts hold that no further showing
of irreparable injury is necessary.” Opulent Life, 697 F.3d at 295 (quotation marks and citation
omitted). There is no harm to the Board from being required to restore Harper to his elective
office; “vague assertions” of harm are not enough. Denton v. City of El Paso, Texas, No. 2050702, 2021 WL 2815396, at *4 (5th Cir. July 6, 2021). And following the Constitution always
serves the public interest. See McDonald v. Longley, --- F.4th ---, 2021 WL 2767443, at *16 (5th
Cir. July 2, 2021).
The motion is granted. Pursuant to Federal Rule of Civil Procedure 65(a), the Warren
County Board of Supervisors shall restore plaintiff Kenneth M. Harper to the position of County
Prosecuting Attorney within 10 days.
Within seven days, the parties shall contact the chambers of the Magistrate Judge to
schedule a Telephonic Case Management Conference.
SO ORDERED, this the 16th day of July, 2021.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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