Mississippi Advisory Opinions March 14, 1991: 19910314 (March 14, 1991)

Advisory Opinion Text

Robert M. Logan, Esquire

Attorney for City of Newton

Post Office Box 380

Newton, Mississippi 39345-0380

Dear Mr. Logan:

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

“Newton is a Code Chapter municipality, governed by a Mayor and five aldermen. Until the year 1987 aldermen were elected at-large. The year prior to that, after a class-action lawsuit was filed, the City adopted the ward system of electing aldermen. An Agreed Judgment was entered on February 4, 1986.

At the time the Agreed Judgment was entered all the parties desired a system of five wards, with no ‘at-large’ aldermen. The resulting ordinance was approved without objection by the U.S. District Court. The Justice Department reviewed the proceedings and entered no objections. A number of other municipalities took similar action.

The number of aldermen and their election in a Code Charter municipality are ostensibly governed by Section 21-3-7, Miss. Code Ann. (1972) . Municipalities such as Newton, having a population under ten thousand, may elect aldermen thereunder at-large or in a system of four wards with one alderman at-large. This statute was struck down in 1975 in the U.S. District Court ruling in Stewart v. Waller , 404 F.Supp. 206 (N.D. Miss) in which the Court stated:

Because unconstitutional, the void 1962 statute cannot have repealed or amended a valid prior enactment, and the pre - 1962 statutory law governing aldermanic elections remains in effect as if Section 21-3-7 had never been enacted. Id. at 215.

The objection to 21-3-7 was that it provided that all aldermen would be elected by vote of the entire electorate.

The ruling in Stewart v. Waller rejuvenated Section 3374-36, Miss Code of 1942, which authorizes either at-large election of aldermen or a system of four wards, with one at-large alderman. At the time Newton's case was in court the four-ward, one-at-large system was also under judicial attack. Houston v. Haley , 663 F.Supp. 346 (N.D. Miss. 1987); 859 F.2d 341 (5th Cir. 1988) . There, the Courts ruled that the Plaintiffs failed to meet the burden of proof to show that system violated the Voting Rights Act. The City of Newton opted for the five-ward system in hopes of avoiding further litigation. City officials were told by the State Attorney General's staff that any system with an at-large alderman would probably be subject to objection by the Justice Department at that time.

With the 1991 census completed, the City is under an affirmative duty to reapportion. This would be the proper time for the City to adjust its system for election of aldermen to comply with the strictures of state law if it is necessary to do so.

We find no statutory authority for the system we now have in place.

QUESTION: Under current state and federal law, can a Code Charter municipality in Mississippi continue to operate with a five-ward system for electing aldermen?”

In response to your inquiry we are enclosing a copy of an opinion addressed to Honorable R.K. Houston, dated May 29, 1984 in which this office concluded that there is no basis in State law for electing aldermen pursuant to a five-ward system. As indicated in your letter, Section 3374-36, Mississippi Code Annotated (1942), which authorizes a four-ward, one at-large system for electing aldermen in municipalities with a population of less than ten thousand remains in effect. As to the continuation of the current system it is the view of this office that the Agreed Judgment of the U.S. District Court is, in effect, a continuing injunction with which you are required to comply as long as it is in force.

If the Agreed Judgment is dissolved thereby removing the legal basis for having a five ward system, the City of Newton would, in our opinion, be legally obligated to comply with State law. However, in light of the decisions of the Supreme Court of the United States in Perkins v. Matthews 400 U.S. 379 (1971) and Lockhart v. United States 460 U.S. 125 (1983), when the municipal governing authorities act to adopt a four-ward, one at-large system in order to comply with State law, the relevant starting point for making the Section 5 analysis of such change would be the actual practice the municipality had in place, regardless of what is required by State law.

Sincerely,

Mike Moore Attorney General.

Phil Carter Special Assistant Attorney General.