Mississippi Advisory Opinions August 02, 2005: AGO 2005-0227 (August 02, 2005)

Advisory Opinion Text

The Honorable Jon M. Barnwell

Chancellor, Seventh Chancery Court District

Post Office Box 1579

Greenwood, Mississippi 38935-1579

Re: Senate Bill 2339 (2005)

Dear Judge Barnwell:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. Your questions with regard to the aforementioned legislative enactment are as follows:

1. Does Senate Bill 2339 violate the Separation of Powers and Equal Protection Clauses of the Constitution as to the Chief Justice of the Mississippi Supreme Court's power to determine the need for family masters and special masters in the Seventh Chancery Court District?

2. Assuming that sub-district 1 and sub-district 2 of the Seventh Chancery Court District are essentially equal in population (which, from my last review of the census statistics, is fact), then would electing one Chancellor from one sub-district and two from the other sub-district be a violation of voting rights standards such as proportionality and vote dillution?

As we stated in our opinion to Miller, dated August 2, 2005, statutes enacted by the Legislature are presumed valid and constitutional unless declared otherwise by a Court of competent jurisdiction, and the constitutionality of statutes passed by the legislature is one of the strongest presumptions in law. Coleman v. Trunkline Gas Co. , 61 So.2d. 276 (Miss. 1952) ; Moore v. Board of Supervisors of Hinds County , 658 So.2d 883 (Miss. 1995) ; MS AG Op., Burnett (June 7, 2002). Only a court of competent jurisdiction may determine the constitutionality of a legislative act, and such is not the proper subject for an Attorney General's Opinion. However, the Mississippi Supreme Court has held in the past that the enactment by the Legislature of certain statutory provisions directing court proceedings impinged upon the doctrine of separation of powers and Section 144 of the Mississippi Constitution of 1890 . Matthews v. State , 288 So.2d 714 (Miss. 1974) ; Newell v. State , 308 S.2d 71 (Miss. 1975) . Whether the Court would make a similar finding in an analysis of Senate Bill 2339 is a matter upon which this office cannot opine.

The one-man, one-vote principle required by the Equal Protection Clause of the Fourteenth Amendment stands for the proposition that each person's vote should count as much as another person's. This principle was first recognized by the U.S. Supreme Court in the case of Gray v. Sanders , 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963) . This principle has been held to be inapplicable to the election of judges. Voter Information Project, Inc. , v. City of Baton Rouge , 612 F.2d 208 (5th Cir. 1980), Kirksey v. Mabus , 700 F.Supp. 327 (S.D. Miss. 1988) . The courts have drawn a distinction between legislative elections and judicial elections, in that while legislators are elected to represent people, judges are elected to serve people. Baton Rouge at 210, 211, citing Buchanan v. Rhodes , 249 F.Supp. 860 (N.D. Ohio 1960).

Whether the proposed election of one chancellor from sub-district 1 and two Chancellors from sub-district 2 would constitute a violation of the Voting Rights Act of 1965 ( 42 U.S.C.A. Section 1971 et seq.) is a determination properly made by a court of competent jurisdiction, and is not a proper subject for an Attorney General's Opinion. This office renders opinions on matters of state law only.

If our office may be of further assistance, please advise.

Sincerely,

Jim Hood Attorney General.

Heather P. Wagner Assistant Attorney General.