Mississippi Advisory Opinions April 29, 2016: AGO 2016-00138 (April 29, 2016)

Advisory Opinion Text

AUTH: Avery Mounger Lee

RQNM: Willie Bailey

SUBJ: Justice Court Judges

SBCD: 100

TEXT: Willie L. Bailey, Esquire

Humphreys County Board of Supervisors

Post Office Box 189

Greenville, Mississippi 38702-0189

Re: Authority to Compensate Justice Court Judge for Performing Additional Duties

Dear Mr. Bailey:

Attorney General Jim Hood is in receipt of your opinion request and has assigned it to me for research and reply.

In your letter, you provide the following information:

Humphreys County has only two (2) Justice court districts, a Northern District, and a Southern District. In January 2015, the Justice Court Judge for the Northern District resigned and qualified to run for the Office of Chancery Clerk of Humphreys County. That left the County with one Justice Court Judge. The County after being assured by the Judge for the Southern District that she could handle the case load for both districts, the Board decided not to fill the vacant Northern Judge Court position and allowed the same to be filled by the general election in November 2015. There was no discussion or agreement on any compensation for the Judge of the Southern District to handle matters for both districts until the Northern District was filled by the November general election.

In January 2016, the Justice Court Judge for the Southern District made a demand on the County for compensation for performing the duties of the former Justice Court Judge who resigned to run for another political office.

Question Presented

Whether the Board of Supervisors can compensate the Southern District Justice Court Judge for performing the duties of the former Judge of the Northern District?

Response

No. The Board of Supervisors may not compensate the Southern District Justice Court Judge for performing duties of the former Justice Court Judge who resigned.

Section 171, Mississippi Constitution of 1890 provides, in part:

“A competent number of justice court judges and constables shall be chosen in each county in the manner provided by law, but not less than two (2) such judges in any county, who shall hold their office for the term of four (4) years ..... ”

It is apparent that the Constitution contemplates that one individual may hold no more than one justice court judge office. Miss. Code Ann. Section 25–3–36 provides that justice court judges are to compensated on an annual salary basis. To say that one (1) individual may hold two separate justice court judge positions and draw two (2) salaries for doing so appears to be contrary to state law. MS AG Op., Vining (August 28, 1989). Thus, it is the opinion of this office that the Board of Supervisors may not compensate the Southern District Justice Court Judge for performing duties of the former Justice Court Judge who resigned. To do so would also constitute an unlawful donation in violation of Section 96, Mississippi Constitution of 1890.

This office does not opine on past actions, and our opinions cannot be used to either validate or invalidate past actions. However, please note Miss. Code Ann. Section 23–15–839 prescribes a specific method for filling vacancies in county and county district offices:

(1) When a vacancy shall occur in any county or county district office, the same shall be filled by appointment by the board of supervisors of the county, by order entered upon its minutes, where the vacancy occurs, or by appointment of the president of the board of supervisors, by and with the consent of the majority of the board of supervisors, if such vacancy occurs when said board is not in session, and the clerk of the board shall certify to the Secretary of State the fact of the appointment, and the person so appointed shall be commissioned by the Governor; and if the unexpired term be longer than six (6) months, such appointee shall serve until a successor is elected as hereinafter provided, unless the regular special election day on which the vacancy should be filled occurs in a year in which an election would normally be held for that office as provided by law, in which case the person so appointed shall serve the unexpired portion of the term. Such vacancies shall be filled for the unexpired term by the qualified electors at the next regular special election day occurring more than ninety (90) days after the occurrence of the vacancy. The board of supervisors of the county shall, within ten (10) days after the happening of the vacancy, make an order, in writing, directed to the commissioners of election, commanding an election to be held on the next regular special election day to fill the vacancy. The election commissioners shall require each candidate to qualify at least sixty (60) days before the date of the election, and shall give a certificate of election to the person elected, and shall return to the Secretary of State a copy of the order of holding the election, showing the results thereof, certified by the clerk of the board of supervisors. The person elected shall be commissioned by the Governor.

We are of the opinion that the above quoted statute requires the board of supervisors of the county in which a vacancy exists in a county or county district office to appoint a qualified individual to fill the office. MS AG Op., White (January 12, 2007). While we find no specific deadline by which such an appointment must be made, we are of the opinion that the above quoted statute contemplates that the appointment will be made without undue delay.

If this office may be of any further assistance to you, please let us know.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Avery Mounger Lee, Special Assistant Attorney General