Mississippi Advisory Opinions June 14, 1985: AGO 000004701 (June 14, 1985)

AGO 000004701.

Dear Mr. Gwin:

Attorney General Edwin Lloyd Pittman has received your request for an official opinion from this office dated May 31, 1985, and has assigned it to me for research and response.

In your request you state:

"I am the regularly employed attorney for the Board of Supervisors of Adams County, Mississippi, and have been instructed to formally request an opinion from your office on the matter of the assessment of certain attorney's fees and costs which may be awarded to the Lawyers' Committee for Civil Rights Under Law in their successful prosecution for the plaintiffs of the suit styled Jesse Williams, et al, vs. The Adams County Board of Election Commissioners, et al."

Initially the lawsuit contested the constitutionality of the residency requirement and the freeholder requirement as qualifications of candidates offering for election to the office of county supervisor. The portion of the lawsuit attacking the residency requirement was dismissed, and the Adams County Election Commission, with the concurrence of the office of the Attorney General, confessed the charge of unconstitutionality of the freeholder requirement.

Up to that point it appears clear that the defendant Adams County Board of Election Commissioners is liable for the plaintiff's reasonable attorney's fees and costs in the prosecution of the suit. After the Election Commission and the Attorney General's Office confessed the unconstitutionality of the freeholder requirement, the plaintiffs continued in the prosecution of the suit in order to gain the publication of a written opinion and incurred substantial time and therefore additional attorney's fees.

The plaintiff's attorneys filed a motion for assessment of attorney's fees and costs, claiming a total of $3,676.25, of which amount as above set out the Election Commissioners are apparently responsible for $1,522.28.

As you know, the Election Commission has no source of funds other than those appropriated by the Adams County Board of Supervisors. I cannot find any statutory authority either requiring the Board of Supervisors to fund this kind of assessment of attorney's fees and costs for a successful plaintiff suing the Election Commission, nor can I find statutory authority making such assessment from the Board of Supervisors discretionary with the Board. I would therefore appreciate your advice as to whether the Board of Supervisors of Adams County is required by law to pay an assessment of the successful plaintiffs' costs and attorney's fees in this cause, and if not mandatory, whether the same is discretionary with the Board.

You should further be aware that neither the Adams County Board of Supervisors nor the State of Mississippi was a party to the lawsuit."

As a general rule, a plaintiff must join the county as a defendant before the county can become liable. Hart v. Walker v. Marshall County, 720 F 2d 1443. While the Adams County Election Commission was the named defendant, the real party in interest was Adams County. Therefore any order entered by the federal courts or any other court of competent jurisdiction awarding attorney's fees to successful attorneys for plaintiffs against the Adams County Election Commission should be paid by the Board of Supervisors of Adams County where the board finds that the election commissioners were the final authority or ultimate repository of county power in the areas contested in the legal action.

If we may be of further assistance to you, please let us know.

Yours very truly,

Robert S. Reeves Special Assistant Attorney General

RSR/lcm