B.Moak - September 30, 2021 - Eligibility Requirement for City Judge

550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 September 30, 2021 Bobby Moak, Esq. Attorney, City of Brookhaven Post Office Box 560 Brookhaven, Mississippi 39602-0560 Re: Eligibility Requirement for City Judge Dear Mr. Moak: The Office of the Attorney General has received your request for an official opinion. Question Presented May an attorney, who is not a qualified elector of Lincoln County, serve as the City Judge for the City of Brookhaven? Brief Response Yes. Because Mississippi Code Annotated Section 21-23-3 provides an exception to the qualified elector requirement for municipalities within the purview of Section 21-23-5, Brookhaven’s municipal judge is not required to be a qualified elector of Lincoln County. Applicable Law and Discussion Section 21-23-3 provides, in pertinent 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). Bobby Moak, Esq. September 30, 2021 Page 2 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 Section 21-23-5 provides, in pertinent part: 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. Miss. Code Ann. § 21-23-5. In your request, you provide that the current population of Brookhaven, Mississippi is approximately 12,200 citizens. Assuming your provided figures are correct,1 the Brookhaven Municipal Judge must meet the eligibility requirements provided in Section 21-23-5, which governs municipalities with a population less than 20,000, and Section 21-23-3, which governs municipalities of 10,000 citizens or more. 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. 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/ Abby Cummings Abby Cummings Special Assistant Attorney General 1 This opinion assumes that Lincoln County is not “an area in excess of nine hundred thirty-five (935) square miles and having a county court,” which would entitle the governing authorities of municipalities therein to “follow the provisions as set out in Section 21-23-5 for municipalities having a population of less than ten thousand (10,000)” when appointing a municipal judge. Miss. Code Ann. § 21-23-3.