Mississippi Advisory Opinions March 21, 2003: AGO 2003-0125 (March 21, 2003)

Advisory Opinion Text

Ms. Peggy W. Sanford

Municipal Clerk

City of Collins

Post Office Box 400

Collins, Mississippi 39428-0400

Re: Municipal Officials Seeking County Offices

Dear Ms. Sanford:

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

A Municipal Election Commissioner has qualified to seek the office of Justice Court Judge for Covington County. Must he resign from his appointment of Election Commissioner for the City of Collins?

Also, can a Municipal Deputy Court Clerk serve as the County Justice Court Judge for Covington County?

In response to your first question we have previously opined that the statutory restrictions on county election commissioners being candidates for another office during their current term would apply to municipal election commissioners who seek a municipal office. See MS AG Op. Keyes (December 13, 1991) (copy enclosed).

The duty of a municipal election commission to maintain the municipal voter rolls has no legal effect on the county voter rolls and therefore would have no bearing on who votes in county elections. Therefore, we are of the opinion that a municipal election commissioner may seek a county office without resigning. Since justice court judges serve in the judicial branch of government and election commissioners serve in the executive branch of government, a commissioner would vacate his or her office upon being elected and taking the oath of office as justice court judge based on the doctrine of separation of powers.

In response to your second question, we have previously opined that a justice court clerk does not exercise any core power of the judiciary and that one could simultaneously hold the office of mayor and justice court clerk. See MS AG Op. Ellis (October 1, 1999) (copy enclosed). We now add that the same would apply to a municipal court clerk. Therefore, we are of the opinion that a deputy municipal court clerk may simultaneously serve as justice court judge. However, situations may arise that would require recusal as judge in particular cases. Further, the individual may not perform Justice Court duties during times for which he is being paid as a deputy municipal court clerk; and, continued municipal employment is at the discretion of the municipal governing authorities.

Sincerely,

Mike Moore Attorney General

Phil Carter Special Assistant Attorney General