MS 2020-07-M-Wiggins-January-4-2020-Appointment-of-County-Prosecuting-Attorney-1 January 4, 2020

Does an appointed county prosecuting attorney in Mississippi have to live in the county and be a registered voter there?

Short answer: The AG concluded that an appointed Mississippi county prosecuting attorney is a contract employee, not an officeholder. Article 12, Section 250's qualified-elector rule and Section 19-23-9's residency rule applied only to elected county prosecutors, not appointees.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

Kemper County abolished the elected office of county prosecutor years ago, and the Board of Supervisors has been appointing one under Section 19-3-49 instead. With only one active Mississippi Bar member living in Kemper County, the Board considered hiring an attorney from outside the county. The sitting prosecutor, Marvin Wiggins, asked the AG to confirm that the Mississippi Constitution forced the Board to pick someone who lives in Kemper County and is a registered voter there.

The AG said no. The same day, the office issued a parallel opinion (to attorney J. Richard Barry on behalf of the Board) reaching the opposite of Mr. Wiggins's preferred answer. The AG read Section 19-3-49 as creating a contractual employment, not a constitutional or statutory "office." That distinction mattered because Article 12, Section 250 of the Mississippi Constitution and Section 19-23-9 (the qualified-elector and residency requirements that constrain elected county prosecutors) apply only to people who hold "office." The appointed county prosecutor's contract is automatically abrogated whenever the elected office is recreated and filled, which the AG read as proof that an appointee does not occupy a constitutional office.

The bottom line: Kemper County's Board of Supervisors could appoint any competent attorney as county prosecutor, including one who did not live in the county. The AG's earlier opinion to Judge J. Max Kilpatrick (Jan. 26, 2001), which had required residency, dealt with an elected county prosecutor and remained good law for that scenario. A 1981 opinion to Hon. Jones H. Hoskins was amended in conformity with the new opinion.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the difference between an "elected" and "appointed" county prosecuting attorney in Mississippi?

An elected county prosecuting attorney runs for the position under Sections 19-23-1 et seq. of the Mississippi Code, must satisfy Section 19-23-9 (which requires the prosecutor to be a regular licensed and practicing lawyer with the same qualifications as other county officers), and is treated as the holder of a constitutional "office." An appointed county prosecuting attorney is hired by the Board of Supervisors under Section 19-3-49 in counties that have no elected prosecutor. The appointee's job is governed by a contract, capped in length to the remainder of the appointing Board's term, and automatically ends if the elected office is later created and filled.

Why did the AG say the appointed prosecutor doesn't hold "office"?

Two reasons. First, the Mississippi Supreme Court has long defined an "office" as something distinct from contractual employment. Golding v. Armstrong, 231 Miss. 889, 97 So. 2d 379 (1957), said: "a duty or employment arising out of a contract, and dependent for its duration and extent upon the terms of such contract is never considered an office." Second, Section 19-3-49 itself ties the appointment to a contract that ends when an elected office is created. The AG read that provision as Mississippi's own admission that what Section 19-3-49 creates is not an office.

What about Article 12, Section 250 of the Constitution?

Section 250 says only qualified electors are eligible to hold "office," with carve-outs allowed elsewhere in the Constitution and additional qualifications allowed by the Legislature. Because the appointed county prosecutor under Section 19-3-49 is not an officeholder, Section 250 does not apply. The AG specifically said an appointed prosecutor was not required to be a qualified elector, even of any county.

Does the earlier Kilpatrick opinion still mean what it said?

Yes, but only on its own facts. Kilpatrick (Jan. 26, 2001) addressed an elected county prosecutor and said the residency requirement applied. The 2020 opinion confirms Kilpatrick is correct for elected prosecutors and simply does not control appointed ones.

Are there any limits on who the Board can pick?

The Board must pick a "competent attorney." The contract must run for the remainder of the Board's term, but it has to include a clause (expressly or by reference to Section 19-3-49) that ends the contract if the elected office is created and filled.

Background and statutory framework

Section 19-3-49(1) authorizes the Board of Supervisors of any county "wherein there is no elected county prosecuting attorney" to "employ a competent attorney to appear and prosecute" cases that need a county prosecutor. Compensation is paid from the county general fund and capped at the salary that would be paid to an elected county prosecutor in that county. The employment must be by contract, the salary cannot be reduced, increased, or terminated during the contract term, the term must run for the remainder of the appointing Board's term, and the contract must say (or reference Section 19-3-49 to say) that it is "abrogated upon the creation and filling of the office of elected county prosecuting attorney."

Article 12, Section 250 of the Mississippi Constitution provides that only qualified electors are eligible to hold "office." It allows the Legislature to add qualifications.

The AG's reasoning hinged on the textual signal in Section 19-3-49 itself: a contract that auto-terminates whenever an elected office appears is, almost by definition, not an office. The AG combined that with Golding v. Armstrong's rule that an employment defined by contract is not an office.

The Wiggins opinion (companion to the same-day Barry opinion) is signed by Special Assistant Attorney General Emiko Hemleben on behalf of Attorney General Jim Hood.

Citations

Miss. Code Ann. Section 19-3-49 (appointed county prosecuting attorney)
Miss. Code Ann. Sections 19-23-1 et seq. (elected county prosecuting attorney)
Miss. Code Ann. Section 19-23-9 (qualifications of elected county prosecutor)
Mississippi Constitution Article 12, Section 250 (qualified elector requirement for office)
Golding v. Armstrong, 231 Miss. 889, 896, 97 So. 2d 379, 382 (1957)
MS AG Op., Barry (January 3, 2020)
MS AG Op., Kilpatrick (January 26, 2001)
MS AG Op., Hoskins (July 27, 1981) (amended to conform)

Source

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

STATE OF MISSISSIPPI

JIM HOOD
ATTORNEY GENERAL

OPINIONS DIVISION

January 4, 2020

Marvin E. Wiggins, Jr.
Prosecutor, Kemper County
Post Office Box 696
DeKalb, MS 39328

Re: Appointment of County Prosecuting Attorney

OFFICIAL OPINION

Attorney General Jim Hood is in receipt of your opinion request and has assigned it to me for research and reply.

Background and Issues Presented

You sent us an additional request in response to a request previously submitted to our office by J. Richard Barry dealing with the appointment of the county prosecutor in Kemper County. You ask us to opine on the same question as Mr. Barry as to whether or not the appointed prosecutor in Kemper County must be a qualified elector. You then cite Article 12, Section 250 of the Mississippi Constitution, Section 19-23-9 of the Mississippi Code Annotated, and our previous opinion to the Honorable J. Max Kilpatrick as support of your position that the county prosecutor must be a licensed attorney who lives in Kemper County.

Response and Legal Analysis

This office considered your request in conjunction with Mr. Barry's request and has opined that the Kemper County Board of Supervisors may appoint any person it deems competent to serve as county prosecutor pursuant to Section 19-3-49 of the Mississippi Code Annotated. Section 19-3-49 prescribes the method for appointing a county prosecutor. Sections 19-23-1 et seq. provide for the office of elected county prosecutor and do not apply to appointed county prosecutors.

You ask us to consider Article 12, Section 250 of the Mississippi Constitution of 1890 which states:

All qualified electors and no others shall be eligible to office, except as otherwise provided in this Constitution; provided, however, that as to an office where no other qualification than that of being a qualified elector is provided by this Constitution, the Legislature may, by law, fix additional qualifications for such office.

Ultimately, we opined in our letter to Mr. Barry that the appointed county prosecutor does not hold "office" as contemplated in Article 12, Section 250 of the Mississippi Constitution of 1890. Therefore, an appointed county prosecutor is not required to be a qualified elector.

Our opinion to Mr. Barry provides:

Section 19-3-49 importantly states that the only way the contract can end prior to the period of the remainder of the term of office of the board of supervisors is when it "shall be abrogated" by establishing the office of elected county prosecutor. The fact that a contract of an appointed county prosecutor is abrogated upon the creation of the office of the elected county prosecutor necessarily implies that the appointed county prosecutor does not hold "office." Therefore, the appointed county prosecutor would not be subject to the requirements of Article 12, Section 250.

MS AG Op., Barry (January 3, 2020).

You mention that the outgoing board "is considering appointing an attorney who is not a resident of Kemper County." Section 19-3-49 states, in relevant part:

(1) In all counties of this state wherein there is no elected county prosecuting attorney, the boards of supervisors shall have the power and authority to employ a competent attorney to appear and prosecute in cases requiring the services of the county prosecuting attorney. The compensation paid to the person so employed shall be paid from the general fund of such county and shall not exceed, during any calendar year, the amount authorized by law to be paid as salary to the county prosecuting attorney in such county. The employment of a county prosecuting attorney as authorized by this section shall be pursuant to a contract which shall provide that the salary of such county prosecuting attorney shall not be reduced, increased or terminated for the period of the contract. Such contract shall be for the period of the remainder of the term of office of the board of supervisors which employs the county prosecuting attorney; however, the contract shall provide expressly or by reference to this section that the contract shall be abrogated upon the creation and filling of the office of elected county prosecuting attorney. ...

(Emphasis added). We note in the opinion to Mr. Barry, and again here, that the contract for the appointed county prosecuting attorney shall be for the remainder of the term of office of the board of supervisors which employs the county prosecuting attorney.

You further ask us to uphold our prior opinion to the Honorable J. Max Kilpatrick. Our opinion to Judge Kilpatrick dealt with an elected prosecuting attorney. An elected county prosecutor holds "office," and would be subject not only to Article 12, Section 250, but also to Section 19-23-9 of the Mississippi Code Annotated. Both Article 12, Section 250 and Section 19-23-9 require elected prosecutors to be qualified electors, and this office believes that our opinion to Judge Kilpatrick is correct but does not apply to appointed county prosecutors.

We are attaching a copy of our response to Mr. Barry for your convenience. Our prior opinion to the Honorable Jones H. Hoskins, dated July 27, 1981, is amended in conformity with this opinion.

If we can be of further assistance, do not hesitate to call us.

Very truly yours,
JIM HOOD, ATTORNEY GENERAL

By: Emiko Hemleben
Special Assistant Attorney General

Attachment

[Footnote: We previously opined in regard to an elected county prosecutor to the Honorable J. Max Kilpatrick: "...[T]hat the appropriate method to fill a temporary vacancy in the office of county prosecuting attorney is to declare the vacancy, name a person to fill that vacancy on an interim basis and call a special election for the remainder of the term.... Section 19-23-9 requires a county prosecuting attorney to possess all the qualifications of other county officers in addition to being a regular licensed and practicing lawyer. That necessarily means that the person named to fill the vacancy must be a qualified elector of the county. Therefore, one who establishes residency in another county would not be eligible to hold the office in question even on an interim basis." MS AG Op., Kilpatrick (January 26, 2001)(emphasis added)(citation omitted).]

[Attached: Companion opinion of January 3, 2020 to J. Richard Barry, Esq., reaching the same conclusions for the Board of Supervisors and finding the appointed county prosecutor does not hold "office" within Article 12, Section 250.]