Does a Mississippi city judge in a city of 10,000 to 20,000 have to be a qualified elector of the county where the city sits?

Plain-English summary

Brookhaven, Mississippi (population about 12,200) was about to appoint a municipal court judge. Bobby Moak, the City Attorney, asked whether the candidate had to be a qualified elector (registered voter) of Lincoln County, where Brookhaven sits.

The AG said no.

Mississippi Code Section 21-23-3 generally says that in cities of 10,000 or more, a municipal judge "shall be a qualified elector of the county in which the municipality is located." But that same statute also says: "Except as otherwise provided in Section 21-23-5." Section 21-23-5 covers cities under 20,000 and sets different eligibility rules: the judge must be a Mississippi-licensed attorney or a justice court judge of the county. Section 21-23-5 does NOT require qualified-elector status.

So the structure is:
- Cities 20,000+: Section 21-23-3 only. Must be qualified elector of county AND attorney at law.
- Cities 10,000-19,999: Section 21-23-3's basic rules apply, BUT the elector requirement is excepted out by Section 21-23-5. So the judge must be a Mississippi-licensed attorney or county justice court judge, but does NOT need to be a county qualified elector.
- Cities under 10,000: Section 21-23-5 fully. Judge appointment is discretionary; if appointed, must be Mississippi-licensed attorney or county justice court judge.

Brookhaven, at 12,200, falls in the middle tier. Its judge needs to be Mississippi-licensed, but does not need to be from Lincoln County.

The opinion has a footnote about a special rule: cities over 10,000 located in counties over 935 square miles with a county court can opt to use Section 21-23-5's rules. Lincoln County is not one of those, so the analysis is straightforward for Brookhaven.

What this means for you

For Mississippi cities appointing a municipal judge

Identify which population tier your city is in based on the latest official federal census. Then apply the corresponding eligibility rules:

City of 20,000 or more:
- Mississippi-licensed attorney
- Qualified elector of the county where the city sits
- Mayor/mayor pro tem cannot serve

City of 10,000 to 19,999:
- Mississippi-licensed attorney OR justice court judge of the county
- NOT required to be a qualified elector of the county
- Mayor/mayor pro tem cannot serve

City under 10,000:
- Appointment is discretionary (city does not have to have a municipal judge)
- If appointed, must be Mississippi-licensed attorney OR justice court judge of the county
- NOT required to be a qualified elector
- Mayor/mayor pro tem cannot serve

The mid-tier (10,000-19,999) is the one many cities miss. They sometimes assume Section 21-23-3's elector requirement applies, but it does not, because of the cross-reference to Section 21-23-5.

For Mississippi attorneys considering municipal judge appointments

If you are a Mississippi-licensed attorney living elsewhere and a small or mid-sized city offers you a municipal judge appointment, eligibility may not require county residency:
- Cities 20,000+: yes, you need to be a qualified elector of the county
- Cities 10,000-19,999: no, you just need to be a Mississippi-licensed attorney
- Cities under 10,000: no, same as above

Confirm the city's population per the latest official federal census and consult Sections 21-23-3 and 21-23-5.

For city attorneys advising mayors and aldermen

Walk the appointing authorities through the population tiers and the cross-reference. The text of Section 21-23-3 says "Except as otherwise provided in Section 21-23-5," and that exception is what allows cities of 10,000-19,999 to skip the elector requirement. Document the population basis (which official census) and the eligibility tier on the appointment minutes.

For prospective candidates

Section 21-23-5's "Mississippi-licensed attorney" path is available for cities under 20,000. Section 21-23-3's "attorney at law" requirement is the same. Both effectively require active Mississippi bar membership.

The justice court judge alternative is also worth knowing. A current justice court judge of the county can be appointed as the municipal judge of a city in that county, even without being licensed as an attorney (since justice court judges are not required to be lawyers in Mississippi). This expands the candidate pool, especially in smaller cities and rural counties.

For Brookhaven and similarly-sized cities

Your eligibility analysis is settled by this opinion. The municipal judge can be any Mississippi-licensed attorney or any Lincoln County justice court judge. No need to be a qualified elector of Lincoln County. That gives you a wider candidate pool than a strict reading of Section 21-23-3 alone might suggest.

For Mississippi's largest cities

Cities over 20,000 face the stricter rule: Mississippi-licensed attorney AND qualified elector of the county. The qualified-elector requirement narrows the candidate pool to county residents who are registered to vote. That is a meaningful constraint in cities where qualified attorneys may live in surrounding counties.

Common questions

Q: What does "qualified elector" mean?
A: A person who is registered to vote in Mississippi. The person must meet the constitutional voter eligibility requirements (citizen, age 18+, resident, registered) and be currently registered.

Q: Why does the elector requirement only apply to large cities?
A: The legislature drew the line at 20,000 with the implicit policy that larger cities have larger pools of locally-qualified attorneys. Smaller cities benefit from a wider candidate pool.

Q: What if Brookhaven's population drops below 10,000 in a future census?
A: The eligibility rules would shift to Section 21-23-5's purely discretionary framework. The city could still appoint a judge under the same eligibility rules (Mississippi attorney or county justice court judge), but the appointment itself would become discretionary rather than required.

Q: What about the special rule for cities in counties over 935 square miles?
A: Section 21-23-3 has a discretionary exception: cities over 10,000 in counties of 935+ square miles with a county court can opt to follow Section 21-23-5's rules. Lincoln County does not meet the size threshold, so this does not apply to Brookhaven. Some Mississippi counties (the larger ones) do qualify, and cities in those counties have an option.

Q: Can a justice court judge be appointed as the municipal judge?
A: Yes, for cities under 20,000. The justice court judge must be a justice court judge "of the county in which the municipality is located." A Lincoln County justice court judge could be appointed Brookhaven's municipal judge.

Q: Can the same person be the municipal judge of two cities at once?
A: The opinion does not address this. Practically, many Mississippi attorneys serve as municipal judges in multiple small cities. State ethics rules and conflict-of-interest principles apply. A judge cannot hear a case where they have a conflict.

Q: What about prosecuting attorney eligibility?
A: Section 21-23-3 also addresses prosecuting attorneys for cities of 10,000+. The opinion does not detail prosecutor eligibility, but the general structure is similar.

Q: Can an attorney from out of state serve as municipal judge?
A: No. Both statutes require Mississippi licensure. An attorney in good standing of another state's bar but not admitted to Mississippi cannot serve.

Q: What if a city has a special charter?
A: Special-charter cities follow general state law unless their charter says otherwise. McComb (the subject of a separate 2021 opinion in this batch) is an example of a special-charter city. The default for special-charter cities is to follow Sections 21-23-3 and 21-23-5 unless the charter specifies different rules.

Q: How are these municipal judges paid?
A: Section 21-23-3 lets the city pay the judge "as set by ordinance." There is no statewide salary schedule for municipal judges. Larger cities typically pay more.

Background and statutory framework

Mississippi's municipal court system uses a tiered framework keyed to population. The tiers reflect the legislature's judgment that larger cities benefit from stricter judicial eligibility requirements (and thus higher-quality judicial candidates from a residency-restricted pool), while smaller cities need flexibility to find qualified candidates.

Section 21-23-3 is the primary statute. It applies to cities of 10,000 or more. It mandates appointment of a municipal judge and prosecuting attorney. The judge must be a qualified elector of the county and an attorney at law, "except as otherwise provided in Section 21-23-5."

Section 21-23-5 addresses smaller cities. For cities under 10,000, appointment of a judge is discretionary. For cities under 20,000 that do appoint, the judge must be a Mississippi-licensed attorney or justice court judge of the county.

The interplay between the two statutes is the key:
- Section 21-23-3's mandatory framework applies to cities over 10,000.
- The "except as otherwise provided" clause in Section 21-23-3 imports Section 21-23-5's looser eligibility rules for cities under 20,000.
- Cities of exactly 20,000 or more are governed only by Section 21-23-3's strict rules.

Brookhaven, at 12,200, is in the 10,000-19,999 zone. The mandatory appointment requirement of Section 21-23-3 applies (Brookhaven must have a municipal judge). But the eligibility rules of Section 21-23-5 apply (judge must be Mississippi-licensed attorney or county justice court judge, and need NOT be a qualified elector).

The opinion's footnote on the 935-square-mile-county special rule is a different lane. Some larger Mississippi counties have county courts in addition to the regular court structure. The legislature gave municipalities in those large counties extra flexibility to use Section 21-23-5's rules even if they have over 10,000 population, presumably because the county court provides an alternative judicial resource. Lincoln County, not being in that category, does not get the extra flexibility, but Brookhaven still benefits from the standard "under 20,000" exception.

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

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/10/B.Moak-September-30-2021-Eligibility-Requirement-for-City-Judge.pdf

Original opinion text

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).

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.