If a Mississippi city cleans up a neglected perpetual care cemetery, can it lien the property or charge penalties to recover the cost?

Plain-English summary

The City of Pascagoula wanted to clean up a neglected perpetual care cemetery: vegetative overgrowth, rubbish and debris, deteriorating grave markers. The City wanted to know how to recover the cleanup costs. The standard menu for cleanup of neglected private property under § 21-19-11(1)-(4) includes:

• Lien on the property for actual cost.
• Judgment against the owner for actual cost.
• Penalties.

But § 21-19-11(7) treats perpetual care cemeteries differently. The Legislature crafted a separate, specific scheme. The AG walked through it:

Question 1: Lien on the land? No. Subsection (7) doesn't authorize liens for perpetual-care cleanup costs.

Question 2: Judgment against the owner? No, same reason. The exclusive recovery path is through the trust fund.

Question 3: Penalties? No, expressly prohibited. § 21-19-11(7)(a) bars assessing the penalties otherwise authorized in subsection (1) against perpetual care cemetery owners.

So how does the city get reimbursed? § 21-19-11(7)(b)-(d) sets up a three-step process through the Mississippi Secretary of State:

1. Adjudication. The municipality follows the procedure in subsection (1) (notice and an opportunity to be heard) to adjudicate the cemetery as not properly maintained and detrimental to public health and welfare. If the owner doesn't clean it, the municipality can.
2. Application to Secretary of State. The municipality applies for an order directing the perpetual-care trust fund's trustee to release accrued interest sufficient to reimburse actual costs.
3. Conditional release of principal. If accrued interest is insufficient or releasing it would threaten the fund's ability to provide for the cemetery's care and maintenance, the Secretary of State may consider an order releasing principal, but only if doing so won't threaten the trust fund's solvency.

§ 41-43-57(2) is the statutory cross-reference governing the perpetual-care trust fund. The Secretary of State is the regulator. The trust fund's existence and solvency are protected; cleanup costs come out of the fund's resources first, in the order interest-then-principal-only-if-necessary.

What this means for you

If you are a Mississippi city attorney facing a neglected perpetual care cemetery

The opinion holds the city may not "enroll the actual cost of cleaning as a lien on the land or . . . assess the actual cost of cleaning as a judgment against the cemetery's owner." Instead, "the governing authority of the municipality must follow the procedure provided in Section 21-19-11(7)": adjudicate under subsection (1), then apply to the Secretary of State for an order releasing trust-fund interest (or principal as a fallback).

If you are a perpetual care cemetery owner or trustee

The opinion holds reimbursement comes from the perpetual-care trust fund (accrued interest first, principal only as a fallback) through a Secretary of State order, and that penalties under subsection (1) are "expressly prohibited" against the owner of a perpetual care cemetery.

If you are at the Secretary of State's office

The opinion describes the office's role under § 21-19-11(7)(b)-(d): it may order release of accrued interest if doing so "would not threaten the ability of the fund to provide for the cemetery's care and maintenance," and may consider releasing principal only if interest is insufficient and "the solvency of the trust fund will not be threatened by such an order."

Common questions

Q: What is a "perpetual care cemetery"?
A: A cemetery where the owner has set aside funds in a trust fund to provide ongoing maintenance of the burial grounds. The opinion ties the reimbursement scheme to that perpetual care cemetery trust fund, cross-referencing § 41-43-57(2).

Q: Why does § 21-19-11 treat perpetual care cemeteries specially?
A: The opinion explains that while subsections (1)-(4) provide the lien-and-judgment scheme for ordinary property, "the Legislature has specifically provided a separate scheme to be followed for recouping costs associated with the cleanup of perpetual care cemeteries," routing recovery through the trust fund and the Secretary of State.

Q: What if the trust fund has no accrued interest and releasing principal would threaten solvency?
A: Under the opinion's reading of § 21-19-11(7)(d), the Secretary of State may order release of principal only "[i]f the Secretary of State determines that the solvency of the trust fund will not be threatened by such an order." Where that condition isn't met, the statute does not authorize the release.

Q: Can the city decline to clean and let the cemetery stay neglected?
A: § 21-19-11(7)(a) is permissive ("may adjudicate" and "may clean"). The city is not required to act, just authorized. Some municipalities may decide that without reliable reimbursement, the cleanup isn't a priority.

Q: What about cemeteries that aren't perpetual care?
A: Subsections (1)-(4) of § 21-19-11 still apply. A non-perpetual-care cemetery (e.g., a small private plot) can be cleaned by the city with cleanup costs and penalties enrolled as a lien or judgment in the standard manner.

Q: How does the opinion describe the Secretary of State's principal-release decision?
A: Per § 21-19-11(7)(d) as quoted in the opinion, the Secretary may consider releasing principal if the accrued interest is insufficient or releasing it would threaten the fund's care and maintenance, and may order it only if the trust fund's solvency "will not be threatened by such an order."

Q: Can owners be heard before the cemetery is adjudicated?
A: The opinion states the governing authority acts "[u]pon notice and an opportunity to be heard" before adjudicating a perpetual care cemetery as not properly maintained under § 21-19-11(7)(a).

Background and statutory framework

§ 21-19-11 is Mississippi's general municipal authority to clean up neglected property. The bulk of the statute (subsections (1)-(4)) addresses ordinary neglected lots: notice, opportunity to be heard, adjudication as a menace to public health, cleanup if the owner doesn't, and recovery of actual costs and penalties as liens and judgments.

Subsection (7) creates a separate scheme for perpetual care cemeteries. The structure:

• § 21-19-11(7)(a): Authority to adjudicate a perpetual care cemetery as not properly maintained and detrimental to public health and welfare. Notice and hearing required. If the owner doesn't clean, the municipality may. Penalties under subsection (1) cannot be assessed.

• § 21-19-11(7)(b): Recovery of actual cost is by application to the Mississippi Secretary of State for an order directing the trustee of the perpetual care trust fund to release accrued interest or principal sufficient to reimburse the municipality. § 41-43-57(2) governs the trust fund.

• § 21-19-11(7)(c): If notice and hearing requirements are met and the application would not threaten the fund's care-and-maintenance ability, the Secretary may order release of accrued interest.

• § 21-19-11(7)(d): If accrued interest is insufficient or releasing it would threaten the fund's care-and-maintenance ability, the Secretary may consider an order to release principal, but only if the fund's solvency would not be threatened.

The hierarchy is interest first, principal only as a fallback. The principle: the trust fund must continue to provide ongoing care.

The statute creates a closed system. There's no path to lien the cemetery property or to sue the owner for cleanup costs. The Legislature funneled the entire recovery through the Secretary of State and the trust fund. This protects the cemetery's underlying property from being foreclosed (which would have implications for grave plots) and aligns with the perpetual-care funding model.

The opinion is a textual reading of the statute. Where § 21-19-11(7) provides a specific procedure, it controls; where it expressly prohibits something (penalties), the prohibition is binding.

Citations and references

Statutes:

• Miss. Code Ann. § 21-19-11 (general municipal authority to address property as menace to public health and welfare)
• Miss. Code Ann. § 21-19-11(7)(a) (perpetual care cemetery adjudication; cleanup authority; no penalties)
• Miss. Code Ann. § 21-19-11(7)(b) (Secretary of State application for trust fund reimbursement)
• Miss. Code Ann. § 21-19-11(7)(c) (release of accrued interest)
• Miss. Code Ann. § 21-19-11(7)(d) (conditional release of principal)
• Miss. Code Ann. § 41-43-57(2) (perpetual care trust fund cross-reference)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/03/M.Moore-February-29-2024-Cost-of-Cleaning-Perpetual-Care-Cemeteries.pdf

Original opinion text

February 29, 2024

Michael R. Moore, Esq.
Attorney, City of Pascagoula
Post Office Box 1529
Pascagoula, Mississippi 39568-1529

Re: Cost of Cleaning Perpetual Care Cemeteries

Dear Mr. Moore:

The Office of the Attorney General has received your request for an official opinion.

Background

You provide in your request that you are seeking guidance on the applicability of Mississippi Code Annotated Section 21-19-11 to perpetual care cemeteries. The city of Pascagoula ("City") desires to clean a neglected perpetual care cemetery. The perpetual care cemetery shows signs of unchecked vegetative overgrowth, excess rubbish and debris, the disintegration of grave markers and other signs of improper maintenance. The City is exploring options to clean the cemetery and desires to recover the costs related to cleaning the same.

Questions Presented

1. May the City clean a perpetual care cemetery and enroll the actual cost of cleaning as a lien on the land?

2. May the City clean a perpetual care cemetery and assess the actual cost of cleaning as a judgment against the cemetery's owner?

3. May the City clean a perpetual care cemetery and assess penalties that are enrolled as a lien on the land?

Brief Response

1. No. To recover the actual cost of cleaning a perpetual care cemetery, the governing authority of the municipality must follow the procedure provided in Section 21-19-11(7).

2. See response to question 1.

3. The assessment of penalties against the cemetery's owner is expressly prohibited.

Applicable Law and Discussion

Section 21-19-11 authorizes the governing authority of a municipality to adjudicate property or a parcel of land as a menace to the public health, safety, and welfare of a community and to go in and clean the property if the owner fails to do so. Subsections (1) through (4) provide the scheme for recouping actual cleaning costs and assessing penalties when the municipality proceeds with cleanup and contemplates the enrolling of those costs and penalties as liens and judgments. However, the Legislature has specifically provided a separate scheme to be followed for recouping costs associated with the cleanup of perpetual care cemeteries.

Section 21-19-11(7)(a) authorizes the governing authority of a municipality to determine, using the procedure provided in subsection (1), whether a perpetual care cemetery and all structures on the cemetery are not being properly maintained and are detrimental to the public health and welfare. Upon notice and an opportunity to be heard, the governing authority may adjudicate the property or parcel of land as such, and once adjudicated, the municipality may clean the property if the owner does not do so himself. Id.

The actual cost of cleaning the property may be reimbursed to the municipality by making application to the Mississippi Secretary of State "for an order directing the trustee of the perpetual care cemetery trust fund to release accrued interest or principal of the trust fund sufficient to reimburse the municipality." Miss. Code Ann. § 21-19-11(7)(b). See also Miss. Code Ann. § 41-43-57(2). If the notice and hearing requirements are met, and the application to release accrued interest from the perpetual care cemetery trust fund would not threaten the ability of the fund to provide for the cemetery's care and maintenance, the Secretary of State may order the trustee to release accrued interest sufficient to reimburse the actual costs of cleanup. Miss. Code Ann. § 21-19-11(7)(c). If the Secretary of State determines that the accrued interest is not sufficient to reimburse the municipality for the actual costs of cleanup or that releasing the accrued interest would threaten the fund's ability to provide for the care and maintenance of the cemetery, then the Secretary of State may consider an order directing the release of principal of the trust fund to reimburse the municipality. Miss. Code Ann. § 21-19-11(d). If the Secretary of State determines that the solvency of the trust fund will not be threatened by such an order to release principal, then the release of principal in the amount sufficient to reimburse the actual costs of cleanup may be ordered. Id. We find no authority for the City to enroll the actual cost of cleaning as a lien on the land or to assess the actual cost of cleaning as a judgment against the cemetery's owner in order to recoup the actual costs of cleaning a perpetual care cemetery. This answer is also responsive to your second question.

In response to your third question, Section 21-19-11(7)(a) specifically prohibits penalties authorized in subsection (1) from being assessed against the owner of a perpetual care cemetery, and we find no statute elsewhere that authorizes a municipality to assess a penalty for the cleanup of perpetual care cemeteries. Therefore, the City may not assess a cleanup penalty and enroll it as a lien on the land.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General