Mississippi Advisory Opinions May 25, 2007: AGO 2007-00218 (May 25, 2007)

Advisory Opinion Text

Honorable Joey Fillingane

Mississippi Senate

District 41

New Capitol

Post Office Box 1018

Jackson, Mississippi 39201

Re: Qualification Deadline for New County Court Judgeship Senate Bill 2966, 2007 Regular Legislative Session

Dear Senator Fillingane:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your letter states the following:

During the 2007 Regular Session, the Legislature passed Senate Bill 2966 which authorizes, but does not require, Lamar County to establish a county court. If this bill is effectuated under Section 5 of the Voting Rights Act of 1965 and Lamar County exercises this option, the bill calls for the election of the judge for the new county court at the November 2007 general election, with the judge so elected to take office in January, 2008. However, the bill does not specify a deadline for candidates to qualify to run in the special election.

Section 23-15-839 provides for qualification sixty (60) days before a regular special election. Is this the qualification deadline that would apply to the election of the county judge provided under Senate Bill 2966?

Subsection 1(c) of Mississippi Senate Bill 2966 of the 2007 Regular Session, as cited in your letter, allows any county having a population exceeding 39,000 inhabitants as shown by the latest federal decennial census in which Highways 589 and 98 intersect to establish a county court at the discretion of the board of supervisors. Senate Bill 2966 states in relevant part:

A county judge for a county electing to establish a county court under subsection (1)(c) of this section shall be elected by the qualified electors of the county in the same manner as provided for the election of circuit court judges at an election held at the November general election first occurring after the date when the board of supervisors spreads upon its minutes a resolution creating the county court. The term of the county court judge so elected shall begin on the first day of January following the November election, and shall end at the same time as for county court judges generally. Thereafter, the county court judge shall be elected and serve for a term as provided for county court judges generally.

The election of judicial offices in Mississippi is governed by the Nonpartisan Judicial Election Act of 1994. (Codified as Miss. Code Ann. Sections 23-15-974 through 23-15-985 (1972) ). The term “judicial office” includes the offices of “justice of the Supreme Court, judge of the Court of Appeals, circuit judge, chancellor, county court judge and family court judge.” ( MS Code Ann. Section 23-15-975) .

The qualifying deadline for these offices is provided in Section 23-15-977, which states in part:

(1) All candidates for judicial office as defined in Section 23-15-975 of this subarticle shall file their intent to be a candidate with the proper officials not later than 5:00 p.m. on the first Friday after the first Monday in May prior to the general election for judicial office…

We note that the qualifying deadline in Section 23-15-977 applies to elections for a full term of four years. Here, Senate Bill 2966 provides for a newly created judgeship, with the initial holder to serve less than a full term and the subsequent holder to serve a full term. Therefore, we opine that the qualifying deadline in Section 23-15-977 is inapplicable to the first election to fill the judgeship of the new county court created in Senate Bill 2966.

As guidance, in recent years, the Legislature created additional county judgeships in Rankin, Madison and Lauderdale counties.

Chapter 495 of the 2002 Laws of the Regular Session codified Section 9-9-18 of the Miss. Code Ann. (1972) to create an additional county court judgeship in Rankin County and Madison County.

Section 9-9-18 , which created an additional county court judgeship in Rankin County, states in part:

The initial holder of the additional judgeship created by this section *** shall be elected in the regular election of November 2002; candidates therefor shall qualify to run not later than forty-five (45) days before that election. The person elected shall begin the term of office in January of 2003 at the same time as county judges generally…

Section 9-9-18.1, which established an additional county court judgeship in Madison County, states in part:

The initial holder of the additional judgeship created by this section *** shall be elected in the regular election of November 2002; candidates therefor shall qualify to run not later than forty-five (45) days before that election. The person elected shall begin the term of office in January of 2003 at the same time as county judges generally…

Chapter 507 of the 2006 Laws of the Regular Session codified Section 9-9-18.3 to create an additional county court judgeship in Lauderdale County. Section 9-9-18.3 states in part:

The initial holder of the additional judgeship created by this section *** shall be elected in the regular election of November 2006; candidates therefor shall qualify to run not later than forty-five (45) days before that election. The person elected shall begin the term of office in January of 2007 at the same time as county judges generally…

The Mississippi Supreme Court has described the doctrine of in pari materia as the rule of statutory construction by which each section of the Mississippi Code dealing with the same or similar subject matter is read together so that the legislative intent can be determined. Miss. Public Service Comm'n v. Municipal Energy Agency of Miss ., 463 So.2d 1056, 1058 (Miss. 1985).

Sections 9-9-18 , 9-9-18.1 and 9-9-18.3 specifically provided that candidates for the initial office of the additional county court judgeships established in Rankin, Madison and Lauderdale counties shall qualify to run not later than forty-five (45) days before the November election in the same year that the statutes were enacted. It should be noted that no differences exist between the initial holder of an additional judgeship in an existing county court and the initial holder of a judgeship in a newly created county court. As a result, it follows that the legislative intent is that the next county court judges are to be elected at the November election of the same year that the statute is enacted. Likewise, we opine that Senate Bill 2966 provides clear legislative intent that the initial holder of the judgeship in the new county court be elected at the November 2007 election. Accordingly, we are of the opinion that the qualifying deadline for the initial office of the additional county court judgeships, pursuant to Sections 9-9-18 , 9-9-18.1 and 9-9-18.3, is a guideline for establishing the qualifying deadline of forty-five (45) days for the new county court judgeship as authorized in Senate Bill 2966.

Therefore, in response to your question, we opine that Section 23-15-839 is inapplicable to the special election to fill the judgeship for the new county court authorized in Senate Bill 2966. Section 23-15-839 provides special election procedures for filling vacancies in county and county district offices. The new county court judgeship created by Senate Bill 2966, however, cannot be considered a vacancy since it did not exist prior to the enactment of the statute.

Please contact our office if we can be of further assistance.

Sincerely,

Jim Hood Attorney General.

Margarette L. Meeks Special Assistant Attorney General.