Mississippi Advisory Opinions May 21, 1987: 19870521 (May 21, 1987)

Advisory Opinion Text

Honorable Kenneth L. Thomas

City Attorney

Post Office Box 66

Rosedale, Mississippi 38769

Dear Mr. Thomas:

Attorney General Pittman has received your letter of request and has assigned it to me for research and reply. Your letter states:

“I am a candidate for the position of County Attorney for Bolivar County, Mississippi. Presently, I serve, through appointment, as City Attorney of Rosedale and Municipal Judge of Shaw and Gunnison, and all said cities are in Bolivar County. Please give me your opinion as to whether I may legally serve as County Attorney as well as City Attorney and Municipal Judge under the aforesaid circumstances.”

In your letter, you indicate that your inquiry concerns the scope of the separation of powers provisions of the Mississippi Constitution.

First, there is no prohibition per se against a city attorney and municipal judge qualifying and running as a candidate for the office of county prosecuting attorney.

As to separation of powers, Article 1, Section 1 of the Mississippi Constitution of 1890, provides:

The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

Article 1, Section 2 of the Mississippi Constitution of 1890, provides:

No person or collection of persons, being one or 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.

The office of county prosecuting attorney is in the executive department of government. Dye v. State of Mississippi , __ So.2d __(Miss. No. 57, 895, dec. April 29, 1987) (not yet reported). Although not an office, the position of city attorney is also in the executive department. However, the office of municipal judge is in the judicial department of government. Therefore, serving as county prosecuting attorney and also serving as a municipal judge is a violation of Article 1, Section 2 of the Mississippi Constitution of 1890. Cf. In Re Anderson , 447 So.2d 1275 (Miss.1984) .

You may wish to contact the Mississippi State Bar for an opinion on your situation as governed by the Code of Professional Responsibility and the Mississippi Commission on Judicial Performance as to the application of the Code of Judicial Conduct.

Very truly yours,

Edwin Lloyd Pittman Attorney General.

Pete J. Cajoleas Assistant Attorney General.