Mississippi Advisory Opinions June 29, 1983: 19830629 (June 29, 1983)

Advisory Opinion Text

Honorable Jerry D. Heitzmann

Circuit Clerk

Hancock County

Post Office Box 249

Bay Saint Louis, 39520

Dear Mr. Heitzmann:

Attorney General Bill Allain has received your request for opinion and has referred it to the undersigned for research and reply.

On behalf of the Democratic Executive Committee of Hancock County, Mississippi you, as Circuit Clerk, present the question for opinion as to “ . . . whether an individual who was removed from the office of Justice of the Peace for malfeasance by order of the State Supreme Court is eligible to qualify to run for the office of Board of Supervisors?”

You refer to “ . . . the statute prohibiting such a person from being a candidate for a judicial office . . . ” and inquire as to whether said statute prohibits such person from being a candidate for the office of Member of the Board of Supervisors.

The statute to which you refer appears to be § 9-19-17, Mississippi Code of 1972, Annotated & Amended, which provides:

“A justice or judge removed by the supreme court or the seven-member tribunal is ineligible for judicial office , . . . ” (Emphasis added)

Said statute is a part of new Chapter 19, Ibid , being § 9-19-1, et seq., Ibid , enacted pursuant to § 177A of the Mississippi Constitution of 1890 providing for the formation of a Commission on Judicial Performance of this State and providing for the removal from office of any justice or judge of this State upon the grounds therein specified.

It is assumed, therefore, that the Justice Court Judge to whom you refer was removed from office in conformance with said constitutional amendment and statutes implementing the same, so that the provision of § 9-19-17, Supra , is fully applicable.

The precise question, therefore, becomes one of whether the office of Member of the County Board of Supervisors is a judicial office within the meaning and intent of § 9-19-17, Supra , and § 177A of the Mississippi Constitution.

It is necessary, therefore, that said statute and constitutional provision be considered in the light of the scope of its intended applicability.

While it is true that the office of Member of the County Board of Supervisor by § 170 of the Mississippi Constitution was placed in the Judicial Department of the State Government and so held by the Mississippi Supreme Court in the landmark case of Haley v. State Ex Rel. Mortimer, District Attorney (1914) 108 Miss 899 67 So. 498 to be “ . . . a part of the judicial department of the state.” the question is whether such office was intended to be included in the scope of constitutional § 177A and new Chapter 19, Supra .

It is clear from the language of constitutional § 177A that it is intended to actuate upon “ . . . any justice or judge of this state . . . ” falling within the several categories enumerated therein.

A reading of the statutes contained in new Chapter 19, Supra , reveals that they, likewise, actuate upon a justice or judge.

§ 9-19-27, Ibid , pertaining to the Annual Statistical Report of the Commission on Judicial Performance requires that such report contain the number of complaints filed and the disposition thereof involving “ . . . the supreme court, circuit courts, chancery courts, county courts, municipal courts and all other courts in existence in Mississippi.” The Board of Supervisors is not enumerated therein.

From a thorough and careful reading of the cited constitutional provisions and statutes, it is the opinion of this office that the office of Member of the County Board of Supervisors is not included within the scope of the intended application of the constitutional provisions and statutes implementing the same.

It necessarily follows, therefore, that it is the opinion of this office that the term “judicial office” contained in § 9-19-17, Supra , refers to the office of a justice or judge as enumerated in § 9-19-27, Supra , which enumeration, as above stated, does not include the office of Member of the County Board of Supervisors.

To construe the term “judicial office” to include the office of Member of the County Board of Supervisors would, in the opinion of this office, be expanding the operation and effect of the constitutional provisions and statutes beyond their intended scope.

It, therefore, is the opinion of this office that a Justice Court Judge having been removed from office, where such removal is not predicated upon a conviction of a crime which would either disqualify such person as an elector or to hold such office and where such person has not had such disabilities removed by either executive or legislative clemency, that such removal from such office would not prohibit the placing of the name of such person, if otherwise qualified, upon the ballot in the primary election for the office of Member of the County Board of Supervisors.

Very truly yours,

Bill Allain, Attorney General