MS 2021-10-B-Moak-September-30-2021-Eligibility-Requirement-for-City-Judge September 30, 2021

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?

Short answer: No. The 2021 opinion concluded that Brookhaven's municipal court judge does not need to be a qualified elector of Lincoln County. Section 21-23-3 generally requires city judges in cities of 10,000+ to be qualified electors of the county, but it carves out an exception for cities within Section 21-23-5's purview. Section 21-23-5 covers cities under 20,000 and requires only that the judge be a Mississippi-licensed attorney or a justice court judge of the county. Brookhaven, with about 12,200 residents, falls in the 10,000-20,000 range and gets the looser eligibility test.

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 AG opinions are persuasive authority but not binding precedent.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.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

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

The mechanism the opinion turns on is the text of Section 21-23-3: "Except as otherwise provided in Section 21-23-5." That exception is what lets a city of 10,000 to 19,999 use Section 21-23-5's eligibility rules and skip the qualified-elector requirement.

For prospective candidates

The opinion reads Section 21-23-5 as requiring, for a city under 20,000, that the judge be "an attorney licensed in the State of Mississippi or a justice court judge of the county in which the municipality is located." The justice court judge alternative is a distinct path from the licensed-attorney one. Neither path under Section 21-23-5 requires qualified-elector status.

For Brookhaven specifically

The opinion's holding is direct: Brookhaven's municipal judge "is not required to be a qualified elector of Lincoln County" and must instead be a Mississippi-licensed attorney or a Lincoln County justice court judge.

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: Where does the statute draw the elector line?
A: As the opinion reads the two statutes together, the qualified-elector requirement in Section 21-23-3 is excepted out for municipalities within Section 21-23-5's purview, which covers cities under 20,000. The opinion does not discuss why the legislature set the threshold there.

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 an attorney from out of state serve as municipal judge?
A: Not on the attorney path. Section 21-23-5, as the opinion quotes it, requires "an attorney licensed in the State of Mississippi." The opinion does not address admission to other states' bars.

Background and statutory framework

Mississippi's municipal court system uses a framework keyed to population, set by the two statutes the opinion construes.

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 addresses a separate special rule: under Section 21-23-3, a municipality in a county "in excess of nine hundred thirty-five (935) square miles and having a county court" may opt to follow Section 21-23-5's provisions for cities under 10,000. The opinion assumes Lincoln County does not meet that description, so the rule does not bear on Brookhaven, which reaches the same result through 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

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.