Mississippi Advisory Opinions January 28, 2006: No. 2006-0018 (January 28, 2006)

No. 2006-0018.

DOCK 2006-0018

Dear Judge Loper:

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

During the 2005 Legislative Session, Senate Bill 2339, was adopted and is found in Chapter 501 of the Mississippi Session Laws for 2005. One of the provisions of the legislation was to eliminate candidates for judicial office in a number of circuit and chancery districts from running in the election method commonly referred to as the herd method. The legislation provided that candidates for judicial office in the affected districts were to henceforth run by posts or places as it is called in the legislation.

Section 22 of Chapter 501 of the session law states that the act shall take effect and be in force from and after January 1, 2007. I am therefore seeking an official opinion from your office as to how this applies to the judicial elections that are scheduled for November, 2006. Since the effective date of the legislation is not until January 1, 2007, will candidates that are running for judicial office this year run in the herd method or by places? More specifically, will candidates for circuit court judge in the Fifth Circuit Court District run this year in the herd method or by places?

Mississippi Code Annotated Section 9-7-20 (Supp.2005) currently provides that "(t)here shall be two (2) judges for the Fifth Circuit Court District.

As pointed out in your letter, effective January 1, 2007 that statute will provide:

(1) There shall be two (2) judges for the Fifth Circuit Court District.

(2) For purposes of appointment and election, the two (2) judgeships shall be separate and distinct and denominated for purposes of appointment and election only as "Place One" and "Place Two."

We note that in several chancery and circuit court districts, the new law establishes residency requirements. For example, Mississippi Code Annotated Section 9-7-7 (Supp. 2005) as of January 1, 2007 will provide that in the First Circuit Court District the judge that will fill the Place One position must be a resident of Alcorn, Prentiss or Tishomingo County while the judges that will fill the Place Two and Place Three positions must be residents of Itawamba, Lee, Monroe or Pontotoc County.

In order to insure that these residency requirements are met, and that all judges elected in November, 2006 are qualified to assume their offices in January, 2007 it is necessary that the 2006 judicial elections be conducted as prescribed in Chapter 501, Laws of 2005.

To say that the 2006 judicial elections in certain judicial districts are to be held under the "herd method" as provided in the statutes until January 1, 2007 would be to allow individuals to qualify as candidates for certain positions that they will not be qualified to assume when the new term begins. The Mississippi Supreme Court has on numerous occasions ruled that it will not ascribe an illogical, unreasonable, and irrational intent or purpose to the Legislature. Cole v. State, 608 So.2d 1313 (Miss. 1992); Drane v. State, 493 So. 2d 294 (Miss. 1986); Pope v. Brock, 912 So.2d 935 (Miss. 2005); Lewis v. State, 765 So.2d 493 (Miss. 2000).

In response to your specific question and based on the above, we are of the opinion that candidates for circuit court judge in the Fifth Circuit Court District must specify that they are a candidate for either "Place One" or "Place Two" on their statement of intent that is to be filed with the Secretary of State along with a fee of one hundred dollars ($100.00) not later than 5:00 p.m. on Friday, May 5, 2006 all in accordance with Section 9-7-20 as it will read on and after January 1, 2007 and Section 23-15-977.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter Special Assistant Attorney General