When a Mississippi statute says "latest available federal census," do you use the prior official census or the new one's preliminary numbers?

Plain-English summary

The City of Indianola was about to appoint a new municipal court judge in September 2021. The eligibility rules for municipal judges depend on the city's population: cities with 10,000 or more use Section 21-23-3's stricter rules; smaller cities use Section 21-23-5's more flexible rules. Both statutes refer to the "latest available federal census."

Indianola had a population of over 10,000 in the 2010 census but the 2020 estimates suggested it had dropped below 10,000. Which counted as the "latest available federal census" in September 2021, when the 2020 census was largely complete but not yet finalized?

The AG said use the 2010 numbers. The 2020 census remained "preliminary" until the Census Bureau formally finalized and published it. Until then, the 2010 official numbers were the controlling "latest available federal census."

The AG drew on Kelly v. City of Aberdeen (1996), a Mississippi Supreme Court case interpreting almost identical language ("latest federal census") in the alcoholic beverage statute (Section 67-1-14(2)(a)). The Court in Kelly held the city had to use the official 1980 census, not preliminary 1990 numbers, when deciding whether to hold a local-option election. The Court's reasoning:
- Statutes use census thresholds to provide "a definite benchmark"
- Preliminary numbers are subject to correction and revision
- Allowing preliminary numbers to control would create "intolerable inconvenience and confusion"
- Stability and uniformity require official numbers

Same logic applied to Section 21-23-3. Indianola, in September 2021, used the 2010 official numbers and treated itself as a 10,000+ city for purposes of the municipal judge appointment.

What this means for you

For Mississippi municipal officials at population thresholds

The opinion's rule for a statute that keys a consequence to the "latest available federal census" is that the most recent official census controls, and a newer census's preliminary or estimate figures do not, until that newer census is finalized and made official by the Census Bureau. In Indianola's case, that meant using the official 2010 count even though 2020 estimates pointed the other way.

For city attorneys advising on population-threshold statutes

The opinion reads "latest available federal census" the same way the Mississippi Supreme Court read "latest federal census" in Kelly v. City of Aberdeen: official results control, preliminary numbers do not. The opinion's reasoning is not tied to municipal-judge statutes specifically; it adopts Kelly's general principle that statutes use census thresholds to provide "a definite benchmark." How that applies to any particular population-keyed statute is a question to work through against that statute's own text.

For Mississippi judicial appointment authorities

Sections 21-23-3 and 21-23-5 set the eligibility rules by population tier, measured by the latest available federal census. Under this opinion, an appointing authority uses the current official census to decide which tier the city is in; it does not use a newer census's preliminary figures before that census is final.

For prospective municipal judges and prosecuting attorneys

The eligibility rules turn on the city's tier. Under Section 21-23-3 (cities of 10,000 or more), the municipal judge must be a qualified elector of the county and an attorney at law. Under Section 21-23-5 (cities under 10,000, and the special variant for cities under 20,000), the judge must be an attorney licensed in Mississippi or a justice court judge of the county. Which set applies depends on the latest official census, per this opinion.

Common questions

Q: Why does it matter whether you use the 2010 or 2020 census?
A: Population thresholds in statutes can flip a city from one regulatory regime to another. In Indianola's case, falling below 10,000 in 2020 would change the municipal judge eligibility rules. Whether the city was "above" or "below" 10,000 in September 2021 depended on which census you used.

Q: When did the 2020 census count as "final" for this opinion?
A: The opinion does not fix a date. Writing in September 2021, the AG treated the 2010 figures as controlling and said they would "remain such until the 2020 figures are finalized and made official by the Federal Census Bureau." The opinion leaves the moment of finalization to the Census Bureau's official publication rather than naming one.

Q: What if the city wants to act based on a preliminary number that everyone expects to be final?
A: The opinion's answer, drawn from Kelly, is no. The Court there reasoned that as long as a census "is subject to possible correction for miscounts," acting on preliminary numbers risks a later challenge, and that relying on preliminary figures would be "a source of intolerable inconvenience and confusion."

Q: Does this rule apply to other Mississippi statutes keyed to population?
A: The opinion does not list other statutes, but its reasoning comes from Kelly, which the Court framed as a general rule that municipalities "must rely on the official results of the latest federal census." Whether and how it applies elsewhere depends on the wording of the specific statute.

Q: Could the legislature change this rule?
A: The opinion does not say. It interprets the statutory phrase as written; what the legislature could do to change that phrase is outside the opinion.

Background and statutory framework

Section 21-23-3 governs municipal judges and prosecuting attorneys in Mississippi cities. The basic structure:

Cities with 10,000 or more population: Section 21-23-3 applies. Municipal judge must be:
- A qualified elector of the county where the municipality sits (with limited exceptions)
- An attorney at law

Cities with less than 10,000: Section 21-23-5 applies. Municipal judge appointment is discretionary (small cities can choose not to have a municipal judge). If they do appoint, the judge must be:
- An attorney licensed in Mississippi, OR
- A justice court judge of the county

There is also a special rule for cities over 10,000 located in a county over 935 square miles with a county court; those cities can opt to follow Section 21-23-5's rules.

The key population threshold (10,000) is determined by "the latest available federal census."

The Kelly v. City of Aberdeen (1996) precedent gave the Mississippi Supreme Court's authoritative reading of similar language. Kelly involved Section 67-1-14(2)(a), which governs whether municipalities can hold local-option elections to legalize alcoholic beverage sales. The statute keyed to "the latest federal census" with a 7,000 threshold. Aberdeen had 7,064 in 1980 (above threshold) but preliminary 1990 figures suggested it might be below. Aberdeen relied on the 1980 numbers and held the election. The Court approved that approach:
- "The legislature obviously included the words 'according to the latest federal census' in order to avoid confusion and provide a definite benchmark"
- "As long as the census is subject to possible correction for miscounts...there is the danger that a city would have to later declare the local option election invalid"
- "Future election results based on preliminary numbers would merely be a source of intolerable inconvenience and confusion"
- "To promote stability, uniformity, and the avoidance of confusion and duplicate efforts, municipalities must rely on the official results of the latest federal census"

The Fratesi opinion applies the same reasoning to Section 21-23-3: official numbers, not preliminary estimates, until the new census is finalized and made official by the Census Bureau.

Citations and references

Statutes:
- Miss. Code Ann. § 21-23-3, municipal judge in cities of 10,000+
- Miss. Code Ann. § 21-23-5, municipal judge in cities under 20,000 / under 10,000
- Miss. Code Ann. § 67-1-14(2)(a), local-option election population threshold (for Kelly comparison)

Cases:
- Kelly v. City of Aberdeen, 680 So. 2d 208 (Miss. 1996), official census, not preliminary, controls statutory thresholds

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/09/G.Fratesi-September-3-2021-Meaning-of-Latest-Available-Federal-Census-as-Used-in-Section-21-23-3.pdf

Original opinion text

September 3, 2021

The Honorable Gary Fratesi
Alderman, City of Indianola
Post Office Box 269
Indianola, Mississippi 38751

Re: Meaning of "Latest Available Federal Census" as Used in Section 21-23-3

Dear Mr. Fratesi:

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

Background

The City of Indianola (the "City") is in the process of appointing a new municipal court judge. According to your request, the official 2010 census showed the City having a population over 10,000, but the 2020 census estimates set that number at less than 10,000. The residency requirements for a municipal court judge under Mississippi Code Annotated Sections 21-23-3 and 21-23-5 vary based on population according to the "latest available federal census."

Question Presented

Do the 2010 official census results or the 2020 census estimates constitute the "latest available federal census" as contemplated by Section 21-23-3?

Brief Response

Until 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 21-23-3.

Applicable Law and Discussion

Section 21-23-3 provides, in relevant 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.

…

Provided, however the governing authorities of any municipality having a population in excess of ten thousand (10,000) persons according to the latest available federal census and situated in a county having an area in excess of nine hundred thirty-five (935) square miles and having a county court may, in their discretion, follow the provisions as set out in Section 21-23-5 for municipalities having a population of less than ten thousand (10,000).

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.

In a case of first impression, the Mississippi Supreme Court was faced with a question regarding similar language, "according to the latest federal census," as it pertained to Section 67-1-14(2)(a), which, at that time, provided that a municipality with a population of "not less than seven thousand (7,000), according to the latest federal census" conduct an election related to whether such municipality could legalize the use, possession, and sale of alcohol within its corporate boundaries. Kelly v. City of Aberdeen, 680 So. 2d 208, 208–9 (Miss. 1996). The City of Aberdeen held such an election. The population the city used to justify holding the special election came from the official census figures of 1980 rather than the preliminary figures for the 1990 census.

The supreme court ruled that the 1980 figures were in fact the controlling figures by reason that:

[t]he legislature obviously included the words "according to the latest federal census" in order to avoid confusion and provide a definite benchmark for determining whether a municipality located in a dry county could legally conduct a local option election. As long as the census is subject to possible correction for miscounts, which would have been the case had Aberdeen relied on [the preliminary figures], then there is the danger that a city would have to later declare the local option election invalid. Future election results based on preliminary numbers would merely be a source of intolerable inconvenience and confusion. To promote stability, uniformity, and the avoidance of confusion and duplicate efforts, municipalities must rely on the official results of the latest federal census . . . .

Kelly, 680 So. 2d at 209–10.

Consistent with the court's reasoning and ruling in Kelly, it is our opinion that the official figures from the 2010 census constitute those of the "latest available federal census," as contemplated by Section 21-3-3 and will remain such until the 2020 figures are finalized and made official by the Federal Census Bureau.

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