Mississippi Advisory Opinions September 08, 2017: AGO 2017-00272 (September 08, 2017)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: David Yarborough, et al .

SUBJ: Supervisors - Authority

SBCD: 220

TEXT: The Honorable David Yarborough, et al.

Hancock County Board of Supervisors

854 Highway 90, Suite A

Bay St. Louis, Mississippi 39520

Re: Selection of Judge for newly created County Court

Dear Mr. Yarborough:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Issue Presented

You state that the Hancock County Board of Supervisors is considering adopting a resolution in favor of the creation of a County Court in accordance with Mississippi Code Annotated Section 9-9-37 (Revised 2014).

You seek our opinion as to the proper procedure to select the County Court Judge if the resolution is adopted and the Governor issues his proclamation creating the Court effective January 1, 2018.

Response

It is the opinion of this office that upon the adoption of a resolution by the Hancock County Board of Supervisors and the subsequent issuance of a proclamation by the Governor creating a County Court, all in accordance with Section 9-9-37, the Governor will appoint an interim judge to serve until an election is conducted in the manner of a special election as provided in Section 23-15-849. Section 23-15-849 requires that the election be held at the next regular special election day occurring more than nine months from the date of the vacancy. The next regular special election day occurring more than nine (9) months after the vacancy, will be on November 6, 2018, provided the Board of Supervisors adopts the required resolution and the Governor issues his proclamation prior to nine months before that special election day. The person elected would begin a four year term on the first Monday in January, 2019.

Applicable Law and Discussion

Section 23-15-833 provides, in part:

Except as otherwise provided by law, the first Tuesday after the first Monday in November of each year shall be designated the regular special election day, and on that day an election shall be held to fill any vacancy in county, county district, and district attorney elective offices, and any vacancy in the office of circuit judge or chancellor.

Section 9-9-37(1) provides:

(1) From and after July 1, 2013, or the date this section is effectuated under Section 5 of the Voting Rights Act of 1965, whichever is later, in any county not brought within the provisions of this chapter by the terms of Sections 9-9-1 and 9-9-3, the board of supervisors is authorized to determine whether a county court shall be established in the county. If a majority of the board are in favor of a county court, then the board shall so certify to the Secretary of State and the Governor shall then issue a proclamation establishing the county court in the county; and thereafter at the next succeeding meeting of the board of supervisors the board shall call an election for the election of a county judge, and the election shall be conducted in the way and manner now provided by law for holding a special election. (Emphasis added.)

Section 9-1-103 provides:

Whenever a vacancy shall occur in any judicial office by reason of death of an incumbent, resignation or retirement of an incumbent, removal of an incumbent from office, or creation of a new judicial office in which there has not heretofore been an incumbent , the Governor shall have the authority to appoint a qualified person to fill such vacancy to serve for the unexpired term or until such vacancy is filled by election as provided in Section 23-15-849, Mississippi Code of 1972. When a vacancy shall occur for any of the reasons enumerated in this section, the clerk of the court shall notify the Governor of such vacancy immediately. (Emphasis added.)

Section 9-9-5(1) provides:

The county judge shall possess all of the qualifications of a circuit judge as prescribed by the Mississippi Constitution. In the event of the establishment of a county court by agreement between two (2) or more counties as provided in Section 9-9-3, the judge of said court may be a qualified elector of any one (1) of said counties, and shall have such other qualifications as provided for by law. The county judge shall be elected by the qualified electors of his county at the time and in the manner as circuit judges are elected and he shall hold office for the same term. Vacancies in the office of county judge shall be filled in the same manner as vacancies in the office of circuit judge. (Emphasis added)

Section 23-15-849(1) provides:

Vacancies in the office of circuit judge or chancellor shall be filled for the unexpired term by the qualified electors at the next regular special election occurring more than nine (9) months after the vacancy to be filled occurred, and the term of office of the person elected to fill a vacancy shall commence on the first Monday in January following the election. Upon the occurrence of a vacancy, the Governor shall appoint a qualified person from the district in which the vacancy exists to hold the office and discharge the duties thereof until the vacancy is filled by election as provided in this subsection.

We note that chancellors, circuit judges and county court judges elected at the regular nonpartisan judicial elections in November 2018 will begin their terms of office on January 1, 2019 as opposed to the first Monday in January 2019 in accordance with Sections 9-5-1, 9-7-1 and 9-9-5(1).

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Phil Carter, Special Assistant Attorney General