Mississippi Advisory Opinions November 19, 2004: AGO 2004-0565 (November 19, 2004)

Advisory Opinion Text

Joseph A. Fernald, Jr., Esquire

Attorney for City of Brookhaven

Post Office Drawer 542

Brookhaven, Mississippi 39601

Re: Annexation / 2005 Elections

Dear Mr. Fernald:

Attorney General Jim Hood has received your letter of request and assigned it to me for research and reply. A memo attached to your letter sets forth the factual situation on which an opinion is sought.

In summary, the memo states that the population of the City of Brookhaven went from 10,243 according to the 1990 Census to 9,861 according to the 2000 Census. It further states that an annexation was approved that would increase the population to something in excess of 13,000. However, the memo notes that the annexation is currently on appeal in the Mississippi Supreme Court.

You point out that Mississippi Code Annotated Section 21-3-7 (Revised 2001) provides that a municipality with a population of more than 10,000 according to the latest available Federal Census, shall have seven (7) aldermen (6 wards and 1 alderman at large). A municipality with a population of less than 10,000 shall have five (5) aldermen (4 wards and 1 alderman at large).

The question presented is whether the City of Brookhaven can conduct next year's election based on the seven aldermen system currently in place rather than redistricting to a five aldermen system and then redistricting back to a seven aldermen system after the anticipated approval of the annexation by the Mississippi Supreme Court.

In response to your inquiry, Section 21-1-21 provides in part:

Any person who was a party to annexation proceedings in the chancery court, may prosecute an appeal therefrom to the supreme court within ten days from the date of such decree by furnishing an appeal bond in the sum of five hundred dollars with two good and sufficient sureties, conditioned to pay all costs of the appeal in event the decree is affirmed. Such appeal bond shall be subject to the approval of the chancery clerk and shall operate as a supersedeas . (Emphasis added)

Based on the above and since the annexation is now on appeal, said annexation has not yet become effective. Therefore the population of the City of Brookhaven currently is as documented in the 2000 Census which is less than ten thousand. This necessarily means that, according to state law the City of Brookhaven would be governed by a mayor and five member board of aldermen.

However, pursuant to Section 5 of the Voting Rights Act, a change from a seven member board of aldermen to a five member board of aldermen cannot be effectuated without such change being submitted to and approved by the U.S. Department of Justice.

The probability exists that if the City redistricts and submits a change from a seven member board to a five member board that upon the effectuation of the pending annexation, another redistricting and submission to change from a five member board back to a seven member board would be required.

Under the unique facts of the situation, we are of the opinion that the law allows you to proceed with the 2005 Elections under the current seven member system. See MS AG Op., Mitchell (Jan. 12, 2001).

If the Mississippi Supreme Court reverses the chancellor's ruling, the City would be required to immediately take all reasonable and appropriate steps to conduct an election based on a five member system.

Sincerely,

Jim Hood Attorney General.

Phil Carter Special Assistant Attorney General.