Can a Mississippi district attorney investigate and rule on the merits of misdemeanor affidavits filed in justice court?

Plain-English summary

District Attorney Evans said an attorney for a county board of supervisors (not the county prosecutor) had asked him to investigate and make findings on the merits of misdemeanor affidavits filed in justice court. The affidavits would not go to a grand jury. Evans asked the AG two questions: was this within his authority as DA, and if he did it, would it cost the county or him the Tort Claims Act immunity?

The AG answered both narrowly:

On authority, no. The DA's duties are set out in Section 25-31-11. Making findings on the merits of a misdemeanor affidavit filed in justice court rests "within the sole province of the duly elected justice court judge." The DA is not the right person to investigate and rule on those affidavits. The judge handling the case is.

On Tort Claims Act immunity, no opinion. Whether the Mississippi Tort Claims Act applies to a particular claim is a factual determination, and the AG cannot answer factual questions in an official opinion. The AG cited a 2016 Sutton opinion: "Whether a claim is subject to defenses, including the applicability of the Tort Claims Act, is a determination that must be made by the local government based on the facts of the claim."

The opinion is short, and the holding is narrow: the merits of a misdemeanor affidavit filed in justice court are for the elected justice court judge to decide, not the district attorney. The AG did not reach the Tort Claims Act question, calling it a fact-specific determination outside the scope of an official opinion.

What this means for you

For Mississippi district attorneys

The opinion holds that "the ability to make findings on the merits of a misdemeanor affidavit filed in justice court rests within the sole province of the duly elected justice court judge." Section 25-31-11 sets out the DA's duties; investigating and ruling on the merits of such affidavits is not among them. On the second question, the opinion does not decide whether doing so would affect Tort Claims Act immunity, because that turns on facts an AG opinion cannot resolve.

For Mississippi justice court judges

The opinion confirms that the merits of a misdemeanor affidavit filed in justice court are for the elected justice court judge to decide, not for a district attorney to investigate and rule on.

For county boards of supervisors and their attorneys

The opinion responds to a request that came from "an attorney for a county board of supervisors, notably, not the county prosecutor," asking the DA to investigate and make merits findings on misdemeanor affidavits. The opinion holds the DA has no such authority; the merits belong to the justice court judge.

For criminal defense attorneys

Under the opinion, a district attorney has no authority to make merits findings on a misdemeanor affidavit filed in justice court. That determination is the elected justice court judge's.

Common questions

Q: Can a district attorney investigate and rule on the merits of a misdemeanor affidavit in justice court?
A: No. The opinion states that authority "rests within the sole province of the duly elected justice court judge."

Q: Where does the DA's authority come from?
A: The opinion points to Section 25-31-11, which "sets forth the duties and responsibilities of district attorneys." Making merits findings on justice-court misdemeanor affidavits is not within those duties.

Q: Did the AG decide whether this would affect Tort Claims Act immunity?
A: No. The opinion holds that "whether the Mississippi Tort Claims Act applies to a particular claim requires a factual determination," and that the office "cannot address questions of fact by way of an official opinion." It quotes the Sutton opinion that the applicability of the Act "is a determination that must be made by the local government based on the facts of the claim."

Q: Who asked for this opinion, and about what charges?
A: The request came from a district attorney who had been asked by "an attorney for a county board of supervisors, notably, not the county prosecutor," to investigate and make findings on misdemeanor affidavits that "would not be presented to a Grand Jury." The opinion notes the request "does not state which criminal offenses are alleged in the affidavits."

Background and statutory framework

Section 25-31-11 sets the statutory duties of Mississippi district attorneys. The first question here was whether those duties include investigating and making merits findings on misdemeanor affidavits filed in justice court; the opinion's answer is that the merits decision belongs to the elected justice court judge, not the DA.

The second question asked whether such an investigation would cost the county or the DA the liability exemptions in Section 11-46-9, the Mississippi Tort Claims Act. The opinion does not decide that, quoting the Sutton (2016) opinion that whether a claim is subject to the Act's defenses "is a determination that must be made by the local government based on the facts of the claim," and noting that under Section 7-5-25 the office cannot resolve questions of fact by official opinion.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25, AG opinions limited to prospective state law; cannot decide factual issues
• Miss. Code Ann. § 11-46-9, Mississippi Tort Claims Act immunity provisions
• Miss. Code Ann. § 25-31-11, duties and responsibilities of district attorneys

Prior AG opinion cited:

• MS AG Op., Sutton (Apr. 22, 2016), Tort Claims Act applicability is a factual determination

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/D.Evans-November-29-2021-Investigation-of-Misdemeanor-Affidavits.pdf

Original opinion text

November 29, 2021

The Honorable Doug Evans
District Attorney
Fifth Circuit Court District
Post Office Box 1262
Grenada, Mississippi 38902-1262

Re: Investigation of Misdemeanor Affidavits

Dear Mr. Evans:

The Office of the Attorney General has received your request for an official opinion.

Background Facts

You state that you have been requested by an attorney for a county board of supervisors, notably, not the county prosecutor, to investigate and make findings on the merits of misdemeanor affidavits filed in justice court. According to your request, these affidavits allege misdemeanor charges and would not be presented to a Grand Jury. However, your request does not state which criminal offenses are alleged in the affidavits.

Questions Presented

1. Is it within the scope of authority of a district attorney to investigate misdemeanor affidavits filed in justice courts and make findings on the merits?

2. Would such investigations result in loss of liability exemptions stated in Mississippi Code Annotated Section 11-46-9?

Brief Response

1. No. The ability to make findings on the merits of a misdemeanor affidavit filed in justice court rests within the sole province of the duly elected justice court judge.

2. Whether the Mississippi Tort Claims Act applies to a particular claim requires a factual determination, and this office cannot address questions of fact by official opinion.

Applicable Law

Section 25-31-11 sets forth the duties and responsibilities of district attorneys. Your first question asks whether the district attorney can, when requested, "investigate and then make a finding on the merits of" misdemeanor affidavits. The ability to make findings on the merits of a misdemeanor affidavit filed in justice court rests within the sole province of the duly elected justice court judge.

With respect to your second question, whether the Mississippi Tort Claims Act applies to a particular claim requires a factual determination. MS AG Op., Sutton at *3 (Apr. 22, 2016) ("Whether a claim is subject to defenses, including the applicability of the Tort Claims Act, is a determination that must be made by the local government based on the facts of the claim."). This office cannot address questions of fact by way of an official opinion. Miss. Code Ann. § 7-5-25.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Phil Carter
Phil Carter
Special Assistant Attorney General