What population threshold determines whether a Mississippi city must appoint a municipal judge who lives in the same county?

Plain-English summary

The City of Indianola asked five related questions about appointing its municipal judge, all triggered by Indianola's population near the 10,000-mark and the timing of the 2020 Census.

The AG's answers:

On census timing: The "latest available federal census" means the most recent census whose figures have been finalized and made official. Until 2020 figures are official, 2010 controls. Preliminary 2020 figures cannot be used. The Fratesi opinion (Sept. 3, 2021) had recently confirmed this rule.

On the qualifications threshold: The split is at 20,000 population, not 10,000. The 10,000-mark in Section 21-23-3 only triggers the requirement to appoint a judge at all (cities of 10,000+ must appoint; cities under 10,000 have discretion). The 20,000-mark in Section 21-23-5 triggers the in-county-elector requirement.

• Cities of 20,000+: must appoint a judge who is (1) an attorney and (2) a qualified elector of the county where the city is located. (Section 21-23-3.)
• Cities of 10,000-19,999: must appoint a judge, but the judge can be any attorney licensed in Mississippi, or a justice-court judge of the county. The qualified-elector-of-the-county requirement does not apply. (Section 21-23-5, which is an exception to the requirement in 21-23-3.)
• Cities under 10,000: judge appointment is discretionary. If a judge is appointed, the same flexibility (any Mississippi-licensed attorney, or county justice-court judge) applies.

On out-of-county appointments when the council deadlocks: No statutory authority lets a 20,000+ city appoint an out-of-county judge if the city council cannot agree on an in-county candidate. The qualified-elector-of-the-county requirement is a statutory minimum, and political stalemate does not override it.

The opinion read Section 21-23-3 and Section 21-23-5 together based on the recent Moak opinion (Sept. 30, 2021), which involved Brookhaven (population approximately 12,000). Brookhaven's municipal judge does not have to be a Lincoln County qualified elector; the judge needs only to be Mississippi-licensed or a Lincoln County justice-court judge.

What this means for you

For Mississippi city attorneys

The opinion sets the appointment rules by population, using the latest available federal census:

• 20,000 or more: under Section 21-23-3, the municipal judge must be an attorney at law and a qualified elector of the county where the city is located.
• Less than 20,000: under Section 21-23-5, the judge may be an attorney licensed in Mississippi or a justice court judge of the county; there is no qualified-elector-of-the-county requirement.
• Less than 10,000: appointment of a municipal judge is discretionary under Section 21-23-5; if one is appointed, the same flexible qualifications apply.

The opinion also notes Section 21-23-5's rule that "the mayor or mayor pro tempore shall not serve as a municipal judge." On census timing, it holds that finalized, official 2020 figures are the "latest available federal census," but "preliminary figures may not be used."

For mayors and aldermen of cities near the 20,000-population line

Under the opinion, the candidate pool depends on the population in the latest official census. Below 20,000, the city may appoint any Mississippi-licensed attorney (or a county justice court judge). At 20,000 or more, the judge must be both an attorney and a qualified elector of the city's county.

For city clerks tracking population data

The figure that controls is the latest finalized, official federal census. The opinion holds that preliminary census figures "may not be used as the latest available federal census," citing the Fratesi (2021) opinion.

For prospective municipal-judge candidates

Under the opinion, eligibility turns on the city's population. In a city of 20,000 or more, the judge must be a Mississippi attorney and a qualified elector of the county. In a smaller city, the judge must be a Mississippi-licensed attorney or a justice court judge of the county.

Common questions

Q: Does the 2020 or 2010 census control?
A: The opinion holds that once the 2020 figures "have been finalized and made official, they constitute the results of the 'latest available federal census,'" but that "preliminary figures may not be used." It cites the Fratesi opinion that the official 2010 figures controlled until the 2020 figures were finalized.

Q: When must a city appoint a judge who is a qualified elector of the county?
A: When the city has "a population of 20,000 or more." The opinion holds those cities must appoint a municipal judge "who is an attorney at law and is a qualified elector of the county in which the municipality is located."

Q: When can a city appoint a judge who is only licensed in Mississippi or a county justice court judge?
A: When the city has "a population of less than 20,000." The opinion holds such a city "may appoint a municipal court judge who is a licensed attorney in the State of Mississippi or a justice court judge of the county in which the municipality is located."

Q: How do Sections 21-23-3 and 21-23-5 fit together?
A: The opinion reads them together, citing the Moak opinion: Section 21-23-3 requires a judge for cities of 10,000 or more and sets the qualified-elector requirement, but it provides "an exception to the qualified elector requirement for those municipalities within the purview of Section 21-23-5," so cities under 20,000 are not bound by the qualified-elector rule.

Q: If the council cannot agree on an in-county candidate, can a 20,000-plus city appoint an out-of-county judge?
A: No. The opinion states it found "no authority for the governing authority to deviate from the aforementioned statutes based on a failure of the governing authorities to agree on a candidate for municipal judge."

Q: Can the mayor serve as the municipal judge?
A: No. The opinion quotes Section 21-23-5: "The mayor or mayor pro tempore shall not serve as a municipal judge."

Background and statutory framework

Mississippi has a tiered approach to municipal courts. Small cities (under 10,000) can have a municipal court if they want one; mid-sized cities (10,000-19,999) must have one; larger cities (20,000+) must have one with a more restrictive judge-selection rule.

The qualifications hierarchy:

• Under 10,000: optional court; if appointed, judge is a Mississippi-licensed attorney or a justice-court judge of the county
• 10,000-19,999: required court; same flexibility on judge
• 20,000+: required court; judge must be a Mississippi attorney and a qualified elector of the county

The practical effect is that the qualified-elector-of-the-county requirement applies only to cities of 20,000 or more; cities below that line may appoint any Mississippi-licensed attorney or a county justice court judge.

The Moak opinion (Sept. 30, 2021), discussing Brookhaven, was the recent precedent the AG built on. Brookhaven was just over 10,000 but well under 20,000, so Section 21-23-5's flexibility applied, and its municipal judge did not have to be a qualified elector of Lincoln County.

On the census question, the opinion reaffirms that preliminary census figures do not count; only finalized, official figures constitute the "latest available federal census" under Section 21-23-2.

The fourth and fifth questions asked whether a deadlocked city council could appoint an out-of-county judge as a workaround. The AG said no, finding "no authority for the governing authority to deviate from the aforementioned statutes based on a failure of the governing authorities to agree on a candidate for municipal judge."

Citations and references

Statutes:

• Miss. Code Ann. § 21-23-2, latest available federal census provision (as referenced)
• Miss. Code Ann. § 21-23-3, municipal judge requirement and qualifications for cities of 10,000+
• Miss. Code Ann. § 21-23-5, municipal judge qualifications for cities under 20,000; mayor cannot serve

Prior AG opinions cited:

• MS AG Op., Fratesi (Sept. 3, 2021), official 2010 figures controlled until 2020 figures finalized
• MS AG Op., Moak (Sept. 30, 2021), Brookhaven (population ~12,000) judge not required to be qualified elector of Lincoln County

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/K.Merchant-November-23-2021-Appointment-of-Municipal-Judge.pdf

Original opinion text

November 23, 2021

Kimberly Jones Merchant, Esq.
Attorney for the City of Indianola
549 South Washington Avenue
Greenville, Mississippi 38701

Re: Appointment of Municipal Judge

Dear Ms. Merchant:

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

Questions Presented

1. When determining the latest available federal census, should the Board of Aldermen use the 2010 or the 2020 Census?

2. Under what condition is a governing authority required to appoint a municipal judge who is a qualified elector of the county in which the municipality is located and an attorney at law?

3. Under what condition is a governing authority allowed to appoint a municipal court judge who is only licensed in the State of Mississippi or a justice court judge of the county in which the municipality is located?

4. If the governing authority is required to appoint a municipal judge who is a qualified elector of the county in which the municipality is located, but cannot agree on a candidate within the county to serve as the municipal court judge, is there any event that will allow the governing authority to appoint a municipal judge who is a resident of a county other than the county in which the municipality is located?

5. If it is determined that the population is ten thousand or more, is there any circumstance wherein the City can appoint a judge outside of Sunflower County?

Brief Response

1. To the extent the 2020 census figures have been finalized and made official, they constitute the results of the "latest available federal census." However, preliminary figures may not be used as the latest available federal census.

2. Municipalities that have a population of 20,000 or more are required to appoint a municipal judge who is an attorney at law and is a qualified elector of the county in which the municipality is located.

3. Municipalities that have a population of less than 20,000 may appoint a municipal court judge who is a licensed attorney in the State of Mississippi or a justice court judge of the county in which the municipality is located.

4. We find no authority for the governing authority to appoint an attorney who resides outside the county in which the municipality is located as described in your request based on a failure of the governing authorities to agree on which attorney within the county should be appointed.

5. See our response to questions 2 and 3.

Applicable Law

With respect to your first question, relying upon a Mississippi Supreme Court decision, we recently opined that "[u]ntil the preliminary figures of the 2020 census become finalized and official, the official results from the 2010 census constitute the 'latest available federal census' as contemplated by Section 21-23-2." MS AG Op., Fratesi at *1 (Sept. 3, 2021). To the extent the 2020 census figures have been finalized and made official, they constitute the results of the "latest available federal census."

Turning to your second and third questions, Section 21-23-3 provides, in part:

In all municipalities having a population of ten thousand (10,000) or more, according to the latest available federal census, there shall be a municipal judge and a prosecuting attorney, who shall be appointed by the governing authorities of the municipality at the time provided for the appointment of other officers . . . Except as otherwise provided in Section 21-23-5, a municipal judge shall be a qualified elector of the county in which the municipality is located and shall be an attorney at law.

Miss. Code Ann. § 21-23-3 (emphasis added). Section 21-23-5 provides:

In any municipality having a population of less than ten thousand (10,000) according to the latest available federal census, it shall be discretionary with the governing authorities of the municipality as to whether or not a municipal judge or a prosecuting attorney, or both, shall be appointed. If the authorities of any municipality having a population of less than twenty thousand (20,000) according to the latest available federal census appoint a municipal judge, he shall be an attorney licensed in the State of Mississippi or a justice court judge of the county in which the municipality is located. The mayor or mayor pro tempore shall not serve as a municipal judge.

Miss. Code Ann. § 21-23-5 (emphasis added).

This office recently opined that municipalities with a population of 10,000 or more but less than 20,000, must meet the eligibility requirements of both Sections 21-23-3 and 21-23-5. MS AG Op., Moak at *2 (Sept. 30, 2021). Reading those statutes together, we found that the municipal judge for the City of Brookhaven, with a population of approximately 12,000, did not have to be a qualified elector of the county in which Brookhaven is located:

Because Section 21-23-3 provides an exception to the qualified elector requirement for those municipalities within the purview of Section 21-23-5, the municipal judge in Brookhaven must be an attorney who is licensed in the State of Mississippi or a justice court judge of the county in which Brookhaven is located, Lincoln County. Section 21-23-5, unlike Section 21-23-3, contains no requirement that the municipal judge be a qualified elector of the county in which the municipality is located. Thus, Brookhaven's municipal judge is not required to be a qualified elector of Lincoln County.

Id. Accordingly, a municipal judge for a municipality with a population, according to the latest available federal census, of less than 20,000 does not have to be a qualified elector of the county in which the municipality is located. Such judges must merely be an attorney who is licensed to practice law in Mississippi or a justice court judge of the county in which the municipality is located. Id.

However, a municipal judge for a municipality with a population of 20,000 or more must be a qualified elector of the county in which the municipality is located and shall be an attorney at law. Miss. Code Ann. § 21-23-3.

With respect to your fourth question, we find no authority for the governing authority to deviate from the aforementioned statutes based on a failure of the governing authorities to agree on a candidate for municipal judge.

Your fifth question is answered by our combined responses to questions two and three.

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