Mississippi Advisory Opinions December 21, 2001: AGO 2001-0770 (December 21, 2001)

Advisory Opinion Text

Mr. Lester Walker

14 Tyler Street

eland, MS 38756

Re: Separation of Powers

Dear Alderman Walker:

Attorney General Mike Moore has received your request for an official opinion and has assigned it to me for research and response. You have previously corresponded with this office regarding the same questions, however, this office was not advised of your current elective position, and did not provide an official opinion. Thank you for bringing to our attention your service as a municipal alderman.

Your questions to this office upon which you request an official opinion are as follows: (1) whether you may continue to serve as a bailiff for the county court system if elected to the position of supervisor during the upcoming elections, and (2) whether you will be required to resign from your position as alderman should you be elected as county supervisor.

In response, Article 1, Section 2 of the Mississippi Constitution of 1890 prohibits simultaneous service in more than one branch of government, the three branches being executive, legislative and judicial. Whether your actions will be in violation of the Mississippi Constitution depends upon into which branch of government each of your positions falls.

With respect to your dual service as a bailiff of the county court and a county supervisor, our office has opined in separate opinions that the position of bailiff is not a “core power” office. See MS AG Op., Straughter (July 31, 1998) and MS AG Op., Ellis (October 1, 1999). Thus, no separation of powers problem exists.

Turning to your second question, a municipal alderman is a member of the legislative branch of government. MS AG Op., Ellis (October 1, 1999). Service as a municipal alderman and as a county supervisor (in the judicial branch of government) would constitute a violation of Section 2 of the Mississippi Constitution. That section reads as follows:

No person or collection of persons, being one or more belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

Continuation of service as a municipal alderman once elected as a county supervisor violates this provision, and acceptance of the position of supervisor would automatically vacate your position as alderman.

If our office may be of further assistance, please advise.

Sincerely,

Mike Moore Attorney General.

Heather P. Wagner Assistant Attorney General.