Mississippi Advisory Opinions September 09, 1988: 19880909 (September 09, 1988)

Advisory Opinion Text

Mr. Thomas C. Perrone

Director of Administration

Office of the Governor

State Capitol

Jackson, Mississippi

Dear Mr. Perrone:

Attorney General Mike Moore has received your opinion request and has assigned it to me for research and reply. You basically inquire if the ongoing litigation in Martin v. Allain , Civil Action No. J84-0708(B) (S.D.Miss.) (Consolidated with) Kirksey v. Allain , Civil Action No. J85-0960(B) (S.D.Miss.) has altered the state statutory method of filling the judicial vacancy for Place 1 of the Fourth Circuit Court District of the State of Mississippi.

The federal courts have addressed the issue of filling Mississippi judicial vacancies. A three-judge court on April 3, 1986, in Kirksey v. Allain, supra , enjoined the use of certain Mississippi judicial statutes for election purposes, until these statutes had been precleared under Section 5 of the Voting Rights Act. This Court, however, specifically addressed the issue of vacancies in judicial office and stated:

“That this Order shall not be construed to create any vacancies in any judicial office. Further, in the event of any vacancy in a judicial office, the Governor of the State of Mississippi may make appointments to any vacant judicial office as authorized by the laws of the State of Mississippi; however, any elections to fill judicial vacancies are subject to the terms of this Order ...” (Emphasis supplied.)

Further, on May 28, 1986, United States District Judge William H. Barbour, Jr., enjoined the state from conducting any elections for circuit or chancery judgeships until further order. On July 25, 1986, the Court clarified its May 28, 1986, Order and, inter alia, addressed the issue of judicial vacancy. The Court ordered:

“That in the event of any vacancy, by death, resignation or otherwise, or any Mississippi chancery or circuit judgeship or any county court judgeship for Hinds, Harrison or Jackson Counties, Mississippi, the Governor of the State of Mississippi may make appointments to any such vacant judicial office as authorized by the laws of the State of Mississippi ...” (Emphasis supplied.)

Beyond peradventure, the State has been directed by the federal courts to “make appointments to any vacant judicial office as authorized by the laws of the State of Mississippi.

Section 9-9-17, Miss.Code Ann. (Supp.1987) provides specifically how appointments for Place 1 of the Fourth Circuit Court District of Mississippi shall be made, and provides, inter alia:

“For the purpose of appointment ... of the judge to fill the judgeship herein created ...”

(i) Place One shall be a resident of Sunflower County or Humphreys County ...”

Accordingly, it is the opinion of this office that the vacancy created by the death of Circuit Court Judge Arthur B. Clark, Jr., of Place 1 of the Fourth Circuit Court District of the State of Mississippi may be filled, pursuant to § 9-9-17, supra, by the Governor appointing an individual to fill such vacancy who is a resident of Sunflower County or Humphreys County.

Yours very truly,

Stephen J. Kirchmayr Deputy Attorney General.