Who can swear in a Mississippi sheriff, and can a sheriff swear in his own deputies?

Plain-English summary

Stone County had a practical problem. The newly elected sheriff needed to be sworn in. Local logistics suggested asking a Gulfport municipal judge (who is also Gulfport's chief magistrate) to do it, even though Gulfport is in Harrison County, not Stone County. The county attorney asked the AG seven questions about who exactly is authorized to administer the oath of office in Mississippi, whether geography matters, and whether the sheriff can then swear in his own deputies.

The answers turn on a single statute: Mississippi Code Annotated Section 11-1-1. That statute lists who is authorized to administer oaths:

A judge of any court of record, clerk of such court, court reporter of such court, master, member of the board of supervisors, justice court judge, notary public, mayor, or police justice of a city, town or village, clerk of a municipality, and any officer of any other state, or of the United States, authorized by the law thereof to administer oaths, the judge of any court of record, or the mayor or chief magistrate of any city, borough or corporation of a foreign country; may administer oaths and take and certify affidavits . . . .

Section 21-23-1 ties the dated terminology to modern practice: "police justice" means municipal judge, "police court" means municipal court. So municipal judges are on the § 11-1-1 list.

The sheriff is not on the list.

The AG's seven answers, in order:

1. Yes, a municipal judge can administer the oath of office to elected officials. Municipal judges fall within § 11-1-1.

2. Yes, a municipal judge can administer the oath even if the official is from an adjoining county. Section 11-1-1 has no geographic restriction. The AG cited the 1993 Greenlee opinion confirming this.

3. Yes, the Gulfport judge (who is also chief magistrate) can swear in the Stone County sheriff. Both municipal judges and chief magistrates are on the § 11-1-1 list, and the cross-county point is settled by answer 2.

4. Yes, a municipal judge of an adjoining county can swear in the sheriff if that judge is also a notary public. Either authority alone (municipal judge or notary) would suffice.

5. Yes, a municipal judge from Harrison County (Gulfport "police justice") can swear in the Stone County sheriff. "Police justice" is the older name for municipal judge under § 21-23-1, so this is the same authority as in answers 1 and 3.

6. No, the sheriff cannot administer the oath of office to his own deputies. Section 19-25-19 requires deputies to take an oath but does not give the sheriff the power to administer it. Sheriffs are not on the § 11-1-1 list.

7. No, the sheriff is not authorized under § 11-1-1 to administer oaths just because he holds office. Same answer as 6.

The bottom line: the list in § 11-1-1 is what controls. If you are on the list, you can administer oaths anywhere in Mississippi. If you are not on the list, you cannot, regardless of what other authority you hold.

What this means for you

If you are a newly elected Mississippi official looking for someone to swear you in

Your options are wide. Any of the following can administer your oath of office, anywhere in Mississippi:

• Any judge of a court of record (chancery, circuit, county, justice, municipal)
• Court clerks and court reporters of those courts
• Members of the board of supervisors
• Justice court judges
• Notaries public
• Mayors
• Municipal judges (and "police justices," same thing)
• Municipal clerks
• Federal or other-state officers authorized by their own law to administer oaths

You do not need to find someone in your home county. You do not need a special form. You just need any one of these people to administer the oath. Many notaries public are easy to find at banks, real estate offices, and courthouses.

If you are a newly elected sheriff with deputies to swear in

The opinion holds that although § 19-25-19 "grants sheriffs the power to appoint deputy sheriffs and further requires deputy sheriffs to take an oath of office," that statute "does not confer on the sheriff the authority to administer the oath," and "[a] sheriff is not listed in Section 11-1-1." So "a sheriff does not have the authority to personally swear in his or her deputies."

If you are a sheriff asking whether holding office lets you administer oaths

The opinion answers no to both Questions 6 and 7: "A sheriff is not authorized by Section 11-1-1 to administer oaths." It does not address the validity of any oath a sheriff may already have administered.

If you are a court clerk, justice court judge, or notary

The opinion holds "[t]here is nothing in Section 11-1-1 restricting its application within the same county or municipality," so "a person authorized to administer oaths may swear in a public official from another county or municipality" (citing Greenlee).

If you are a county attorney advising local officials

The opinion treats § 11-1-1 as the controlling list for who may administer an oath of office, read together with § 25-1-9 (oath "may be taken . . . before any person authorized by law to administer an oath") and § 21-23-1 ("police justice" means municipal judge). It holds officials on the list may swear in elected officials anywhere in the state.

Common questions

Q: Does the geographic location of the official matter?
A: No. The opinion holds "[t]here is nothing in Section 11-1-1 restricting its application within the same county or municipality," so a person authorized to administer oaths "may swear in a public official from another county or municipality."

Q: Can a chief magistrate administer the oath?
A: Yes. The opinion's Answer 3 holds "[b]oth municipal judges and chief magistrates of a city are authorized by Section 11-1-1 to administer oaths of office or swear in elected officials no matter where they are located."

Q: Does a "police justice" count as a municipal judge?
A: Yes. The opinion applies § 21-23-1: "Wherever the words 'police court' or 'police justice' appear in the laws of this state, they shall mean municipal court or municipal judge, respectively."

Q: What does Section 25-1-9 add?
A: The opinion cites it for the general rule that "[t]he oath of office may be taken by all officers before any person authorized by law to administer an oath," which points to the § 11-1-1 list of authorized administrators.

Background and statutory framework

Section 11-1-1 is the master list of oath-administration officers. The list is detailed and inclusive of judicial, executive, and notarial officers. The relevant text:

A judge of any court of record, clerk of such court, court reporter of such court, master, member of the board of supervisors, justice court judge, notary public, mayor, or police justice of a city, town or village, clerk of a municipality, and any officer of any other state, or of the United States, authorized by the law thereof to administer oaths, the judge of any court of record, or the mayor or chief magistrate of any city, borough or corporation of a foreign country; may administer oaths and take and certify affidavits whenever the same may be necessary or proper in a proceeding in any court or under any law of this state, or for the purpose of taking depositions of any party of interest, or witnesses of any suit pending before any such court, or for the perpetuation of testimony, as provided in Section 13-1-57, Mississippi Code of 1972.

Section 21-23-1 modernizes the dated terms: "Wherever the words 'police court' or 'police justice' appear in the laws of this state, they shall mean municipal court or municipal judge, respectively." So everywhere § 11-1-1 says "police justice," read "municipal judge."

Section 25-1-9 states the general rule for office oaths: "The oath of office may be taken by all officers before any person authorized by law to administer an oath." That cross-references back to § 11-1-1.

Section 19-25-19 grants sheriffs authority to appoint deputy sheriffs and requires deputies to take an oath, but does not give the sheriff the power to administer that oath.

Citations

• Miss. Code Ann. § 11-1-1
• Miss. Code Ann. § 21-23-1
• Miss. Code Ann. § 19-25-19
• Miss. Code Ann. § 25-1-9
• Miss. Code Ann. § 13-1-57
• MS AG Op., Greenlee (Aug. 18, 1993)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/05/A.HopkinsJr.-May-10-2024-Administration-of-Oath-of-Office.pdf

Original opinion text

May 10, 2024
A. Norris Hopkins, Jr., Esq.
Attorney, Stone County Board of Supervisors
Post Office Box 1510
Gulfport, Mississippi 39502-1510
Re: Administration of Oath of Office

Dear Mr. Hopkins:
The Office of the Attorney General has received your request for an official opinion.

Questions Presented

1. Is a presiding municipal court judge considered one that may administer oaths to elected officials pursuant to Mississippi Code Annotated Section 11-1-1?
2. If the answer to question number one is yes, would the answer be different if the municipal court judge presided over a court in the adjoining county?
3. May the city of Gulfport judge, who is also the chief magistrate, swear in the newly elected sheriff of Stone County?
4. May a municipal court judge of an adjoining county swear in the newly elected sheriff of Stone County if that municipal court judge is a notary public?
5. May a municipal court judge from Harrison County, who is also the police justice for the city of Gulfport, swear in the newly elected sheriff of Stone County?
6. May the newly elected sheriff of Stone County, after being administered the oath of office pursuant to Section 11-1-1, administer the oath to his deputies in keeping with Section 19-25-19?
7. Is the sheriff of Stone County, after receiving the oath of office pursuant to Section 11-1-1, considered an individual authorized under Section 11-1-1 to administer oaths under Section 11-1-1?

Brief Response

1. Yes. A municipal judge is authorized to administer oaths pursuant to Section 11-1-1.
2. A municipal judge may administer an oath to an elected official from an adjoining county.
3. Yes. Both municipal judges and chief magistrates of a city are authorized by Section 11-1-1 to administer oaths of office or swear in elected officials no matter where they are located.
4. Yes. Both municipal judges and notaries public are authorized by Section 11-1-1 to administer oaths of office or swear in elected officials.
5. Yes. See Response 2 as well as Section 21-23-1 (stating that "police justice" means municipal judge).
6. No. A sheriff is not authorized by Section 11-1-1 to administer oaths.
7. No. A sheriff is not authorized by Section 11-1-1 to administer oaths.

Applicable Law and Discussion
Pursuant to Section 25-1-9, "[t]he oath of office may be taken by all officers before any person authorized by law to administer an oath." With respect to who is authorized to administer oaths, Section 11-1-1 provides:

A judge of any court of record, clerk of such court, court reporter of such court, master, member of the board of supervisors, justice court judge, notary public, mayor, or police justice of a city, town or village, clerk of a municipality, and any officer of any other state, or of the United States, authorized by the law thereof to administer oaths, the judge of any court of record, or the mayor or chief magistrate of any city, borough or corporation of a foreign country; may administer oaths and take and certify affidavits whenever the same may be necessary or proper in a proceeding in any court or under any law of this state, or for the purpose of taking depositions of any party of interest, or witnesses of any suit pending before any such court, or for the perpetuation of testimony, as provided in Section 13-1-57, Mississippi Code of 1972.

Further, "[w]herever the words 'police court' or 'police justice' appear in the laws of this state, they shall mean municipal court or municipal judge, respectively." Miss. Code Ann. § 21-23-1. Thus, a municipal judge may administer oaths of office to elected officials pursuant to Section 11-1-1.

You ask several questions regarding the ability of an individual to administer the oath of office or swear in a public official from an adjoining county. There is nothing in Section 11-1-1 restricting its application within the same county or municipality. It is, therefore, the opinion of this office that a person authorized to administer oaths may swear in a public official from another county or municipality. See MS AG Op., Greenlee at *1 (Aug. 18, 1993) (stating "that a criminal affidavit can be acknowledged by any person authorized by law to administer oaths. This would include, in our opinion, the court clerk from another jurisdiction or a notary public.").

In your request, you also cite Section 19-25-19, which grants sheriffs the power to appoint deputy sheriffs and further requires deputy sheriffs to take an oath of office. Notably, this statute does not confer on the sheriff the authority to administer the oath. A sheriff is not listed in Section 11-1-1 as an individual authorized to administer oaths. Thus, a sheriff does not have the authority to personally swear in his or her deputies.

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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General