If a Mississippi justice court judge retires through PERS but stays on the bench, can they still collect $25 wedding fees on top of the 25% compensation cap?

Plain-English summary

Mississippi PERS lets retirees continue (or be elected to) municipal or county elective office without losing their pension, but only if they limit their compensation for the office to 25% of their average compensation under § 25-11-127(6).

The statute carves out one exclusion from "compensation": "office expense allowance, mileage or travel expense authorized by a statute of the State of Mississippi."

Section 25-7-25(3) lets a justice court judge collect a fee of up to $25 for each marriage ceremony performed in the courtroom or office.

Judge Ladner asked: if I'm collecting 25% of my average compensation as my judicial salary, can I additionally collect the $25 wedding fee, or does the wedding fee count toward the 25% cap?

The AG said it counts toward the cap. The $25 wedding fee is a "fee" (a fixed charge for a service), not an "office expense allowance" (a reimbursement or bounty for expenses). The statute's exclusion is narrow; only office expense allowances, mileage, and travel expenses are excluded from the 25% cap. Wedding fees are compensation.

Practical effect: a retired judge who has reached the 25% ceiling cannot add wedding fees on top. The judge would have to either (a) decline the wedding fee, (b) absorb the wedding fee into the 25% allotment, or (c) decline to perform weddings.

What this means for you

If you're a retired Mississippi justice court judge still serving

Under this opinion, a judge who retired through PERS and continues serving is limited to 25% of his or her average compensation under § 25-11-127(6). The AG holds that the § 25-7-25(3) wedding fee counts toward that 25% cap, because it is a "fee" for a service, not an "office expense allowance." Section 25-11-127's only exclusions from "compensation" are office expense allowance, mileage, and travel expense authorized by statute. Collecting the wedding fee on top of 25% of average compensation would, in the AG's words, violate § 25-11-127.

If you're a PERS administrator

The opinion reaches the same conclusion it had drawn for retired circuit and chancery clerks in the Pickering opinion: a violation of § 25-11-127 occurs when a retiree receives compensation, including fees, in excess of 25% of average compensation. The wedding fee is treated as compensation, not an excluded expense allowance.

If you're a county payroll clerk

Under this opinion, the § 25-7-25(3) wedding fees a retired-and-serving justice court judge collects count toward the judge's 25% compensation cap under § 25-11-127(6). The AG concludes a retired judge already at the 25% level is not entitled to additionally receive the wedding fee.

If you're a county supervisor

The opinion holds that a retired-and-serving justice court judge is capped at 25% of average compensation, and that the § 25-7-25(3) wedding fee counts toward that cap rather than being excluded as an office expense allowance.

Common questions

Q: What's the 25% cap based on?
A: The opinion ties it to the retiree's "average compensation" as used in § 25-11-127(6). The opinion does not spell out how PERS calculates that average.

Q: Why is the wedding fee considered "compensation" and not an "expense allowance"?
A: The AG distinguished "fee" (a fixed charge or sum paid for a service) from "allowance" (a reimbursement or bounty for expenses). The wedding fee is paid for performing a service, not to reimburse expenses. City of Tchula and Kerr-McGee support using dictionary definitions when statutes don't define the terms.

Q: Can I just stop performing weddings?
A: Yes. Performing weddings is permitted, not required. A judge who declines to perform them avoids the cap issue.

Q: What happens if a retired judge exceeds the cap?
A: The opinion states that receiving the wedding fee on top of 25% of average compensation "would violate Section 25-11-127." It does not specify the remedy for a violation.

Q: Does this apply to other PERS retirees holding elective office?
A: The 25% cap is set by § 25-11-127(6) for retirees who continue in or are elected to municipal or county elective office. The opinion reaches the same result it had for retired circuit and chancery clerks in the Pickering opinion.

Q: Why isn't the $25 wedding fee treated as covering paperwork costs?
A: The AG distinguished a "fee" (a fixed charge or sum paid for a service) from an "allowance" (a sum granted as a reimbursement or bounty or for expenses), using dictionary definitions per City of Tchula and Kerr-McGee. The flat $25 charge for performing a ceremony is a fee, so it is not the excluded office expense allowance.

Background and statutory framework

PERS allows retirees to continue in, or be elected to, municipal or county elective office under § 25-11-127(6) provided they elect to receive compensation for that office not exceeding 25% of the retiree's average compensation.

Section 25-11-127(6)(c) provides that, as used in that subsection, "compensation" does not include office expense allowance, mileage, or travel expense authorized by a statute of the State of Mississippi. The AG read that exclusion narrowly, so other forms of compensation, including fees, count toward the cap.

Section 25-7-25(3) authorizes justice court judges to collect a fee of up to $25 per marriage ceremony performed in the courtroom or office. The fee is paid through the claims docket by the board of supervisors.

The AG's analysis: a "fee" for performing a service is compensation, not an expense allowance. The 25% cap reaches it.

Citations and references

Statutes:

• Miss. Code Ann. § 25-7-25(3) (justice court judge wedding fee authority)
• Miss. Code Ann. § 25-11-127 (PERS retirement compensation rules)
• Miss. Code Ann. § 25-11-127(6) (retiree-elected-officer 25% cap)

Cases:

• City of Tchula v. Mississippi Public Service Commission, 187 So. 3d 597, 600 (Miss. 2016)
• Kerr-McGee Chemical Corp. v. Buelow, 670 So. 3d 12, 19 (Miss. 1995)

Prior AG opinions referenced:

• MS AG Op., Pickering (Aug. 20, 2008), parallel rule for retired circuit/chancery clerks
• MS AG Op., Carter (May 4, 2001), wedding fees paid through claims docket
• MS AG Op., McWilliams (Nov. 25, 1998), AG cannot definitively define "office expense allowance"

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/L.Ladner-April-6-2023-Wedding-Fee-for-Justice-Court-Judges-Receiving-PERS-Retirement.pdf

Original opinion text

April 6, 2023

The Honorable Louise D. Ladner
Justice Court Judge, Harrison County
1st Judicial District
Post Office Box 1754
Gulfport, Mississippi 39502

Re: Wedding Fee for Justice Court Judges Receiving PERS Retirement

Dear Judge Ladner:

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

Question Presented

If a justice court judge has retired as part of the PERS retirement system and receives 25% of their salary because they are still working as a justice court judge, are they entitled to the $25 in-office fee for doing weddings as authorized in Mississippi Code Annotated Section 25-7-25(3)?

Brief Response

No. A retired justice court judge that receives 25% of his or her average compensation through the PERS retirement system due to continued work as a justice court judge is not entitled to additionally receive Section 25-7-25(3)'s $25 fee for performing courtroom or office wedding ceremonies.

Applicable Law and Discussion

Section 25-7-25(3) provides, in part, that "each justice court judge may receive a fee of not more than Twenty-five Dollars ($25.00) for each marriage ceremony he performs. . . ." The question arises, however, because Section 25-11-127(6) provides:

(a) A member may retire and continue in municipal or county elective office provided that the member has reached the age and/or service requirement that will not result in a prohibited in-service distribution as defined by the Internal Revenue Service, or a retiree may be elected to a municipal or county office, provided that the person:

...

(ii) Elects to receive compensation for that elective office in an amount not to exceed twenty-five percent (25%) of the retiree's average compensation.

...

(c) As used in this subsection, the term "compensation" does not include office expense allowance, mileage or travel expense authorized by a statute of the State of Mississippi.

Although this office has not opined on the specific question presented, it has issued a similar opinion in regard to retired circuit or chancery clerks. See MS AG Op., Pickering at *1 (Aug. 20, 2008) ("It is the opinion of this office that a violation of Section 25-11-127 occurs when a retired circuit or chancery clerk receives compensation, including fees and disallowed expenses, in excess of twenty-five percent (25%) of the retiree's average compensation.") (Emphasis added). We reach the same conclusion here.

The only exclusion to the 25% rule set forth in Section 25-11-127 is for the reimbursement of "office expense allowance, mileage or travel expense authorized by any applicable statute of the State of Mississippi."

As stated supra, Section 25-7-25(3) allows a justice court judge to receive a discretionary "fee of not more than [$25.00] for each marriage ceremony he performs in the courtroom or offices of the justice court at any time the courtroom or offices are open to the public." These fees are paid through the claims docket by the board of supervisors. MS AG Op., Carter at 1 (May 4, 2001). Although this office has stated that it is unable to definitively provide what items the term "office expense allowance" encompasses, see MS AG Op., McWilliams at 1 (Nov. 25, 1998), the terms "fee" and "office expense allowance" are not synonymous. While the terms "fee" and "allowance" are not defined by the relevant statute, "[i]n the absence of a legislative definition, reference to a dictionary is proper." City of Tchula v. Miss. Pub. Serv. Comm'n, 187 So. 3d 597, 600 (Miss. 2016) (citing Kerr-McGee Chem. Corp. v. Buelow, 670 So. 3d 12, 19 (Miss. 1995)). The Merriam-Webster dictionary defines "fee" as "a fixed charge; a sum paid or charged for a service." MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/fee (last visited Jan. 18, 2023). It defines "allowance" as "a sum granted as a reimbursement or bounty or for expenses." MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/allowance (last visited Jan. 18, 2023). Accordingly, the $25 fee set forth in Section 25-7-25(3) is not an office expense allowance excluded from Section 25-11-127's 25% limit.

In conclusion, it is the opinion of this office that a retired justice court judge that continues to serve in that position and receives 25% of his or her average compensation through the PERS retirement system is not entitled to receive Section 25-7-25(3)'s $25 fee for performing wedding ceremonies. To do so would violate Section 25-11-127.

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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General