What population threshold determines whether a Mississippi city must appoint a municipal judge who lives in the same county?
Plain-English summary
The City of Indianola asked five related questions about appointing its municipal judge, all triggered by Indianola's population near the 10,000-mark and the timing of the 2020 Census.
The AG's answers:
On census timing: The "latest available federal census" means the most recent census whose figures have been finalized and made official. Until 2020 figures are official, 2010 controls. Preliminary 2020 figures cannot be used. The Fratesi opinion (Sept. 3, 2021) had recently confirmed this rule.
On the qualifications threshold: The split is at 20,000 population, not 10,000. The 10,000-mark in Section 21-23-3 only triggers the requirement to appoint a judge at all (cities of 10,000+ must appoint; cities under 10,000 have discretion). The 20,000-mark in Section 21-23-5 triggers the in-county-elector requirement.
- Cities of 20,000+: must appoint a judge who is (1) an attorney and (2) a qualified elector of the county where the city is located. (Section 21-23-3.)
- Cities of 10,000-19,999: must appoint a judge, but the judge can be any attorney licensed in Mississippi, or a justice-court judge of the county. The qualified-elector-of-the-county requirement does not apply. (Section 21-23-5, which is an exception to the requirement in 21-23-3.)
- Cities under 10,000: judge appointment is discretionary. If a judge is appointed, the same flexibility (any Mississippi-licensed attorney, or county justice-court judge) applies.
On out-of-county appointments when the council deadlocks: No statutory authority lets a 20,000+ city appoint an out-of-county judge if the city council cannot agree on an in-county candidate. The qualified-elector-of-the-county requirement is a statutory minimum, and political stalemate does not override it.
The opinion read Section 21-23-3 and Section 21-23-5 together based on the recent Moak opinion (Sept. 30, 2021), which involved Brookhaven (population approximately 12,000). Brookhaven's municipal judge does not have to be a Lincoln County qualified elector; the judge needs only to be Mississippi-licensed or a Lincoln County justice-court judge.
What this means for you
For Mississippi city attorneys
When advising on a municipal-judge appointment, first determine the city's population from the latest official federal census. Then apply:
- 20,000+: Section 21-23-3 controls. Judge must be a Mississippi attorney and a qualified elector of the county.
- 10,000-19,999: Section 21-23-5 controls. Judge must be a Mississippi-licensed attorney OR a justice-court judge of the county. No in-county-elector requirement.
- Under 10,000: Appointment is optional. If made, Section 21-23-5 controls.
The mayor or mayor pro tempore cannot serve as municipal judge (per Section 21-23-5).
If the population straddles a threshold based on a not-yet-finalized census, use the most recent finalized census until the new figures are official. The AG's Fratesi opinion (Sept. 3, 2021) is the citation.
For mayors and aldermen of Mississippi cities near the 20,000-population line
The threshold matters for your candidate pool. If your city is just under 20,000, you have access to any Mississippi-licensed attorney, including out-of-county practitioners. If your city crosses 20,000 in the next census, your candidate pool narrows to in-county qualified electors who are also attorneys.
Plan for census-driven changes. If your city is growing toward 20,000, identify in-county attorneys who could fill the role.
For city clerks tracking population data
The population number for purposes of municipal-judge appointments is the latest finalized federal census. Track Census Bureau release schedules and confirm with the AG's office whether 2020 figures have been finalized for the relevant statutory purpose.
For prospective municipal-judge candidates
Your eligibility depends on the city's population:
- 20,000+ city: you must be a Mississippi attorney AND a qualified elector of the county.
- Smaller city: you must be a Mississippi-licensed attorney, or you can be a justice-court judge of the county.
If you are an out-of-county attorney interested in a 20,000+ city's bench, you would need to relocate and become a qualified elector of the city's county before appointment.
Common questions
Q: When is a federal census "finalized"?
A: The Census Bureau releases preliminary figures and then official figures over a multi-year period. The "latest available" census is the most recent one whose figures have become official, as confirmed in the Fratesi (Sept. 3, 2021) AG opinion.
Q: What is a "qualified elector"?
A: Generally, a person registered to vote and meeting other voting qualifications under Mississippi law. For municipal-judge purposes, the requirement is qualified elector status in the county.
Q: Can a sitting circuit judge serve as a municipal judge?
A: The statute permits Mississippi-licensed attorneys generally, but constitutional and ethical considerations may limit dual service. Consult Section 21-23-5 and judicial ethics rules.
Q: What if a city has no in-county attorneys willing to serve?
A: The AG opinion does not address this directly. Practical solutions include reaching out to additional attorneys, raising the compensation, or revisiting whether the city actually crosses the 20,000-mark. If genuinely no in-county attorney is available, the city has a real problem; the answer is not to appoint out of county.
Q: Does the Indianola opinion apply to municipal court judges pro tempore?
A: The opinion is about the regular appointment. Pro tem appointments may have different rules; check the specific statute.
Q: What is the difference between Section 21-23-3 and Section 21-23-5?
A: Section 21-23-3 sets the rule for cities of 10,000+, requiring appointment and creating the qualified-elector requirement. Section 21-23-5 is an exception that applies to cities under 20,000 (and makes appointment discretionary for cities under 10,000), removing the qualified-elector requirement.
Q: What if the city has multiple municipal courts?
A: The same statutory framework applies to each appointment. Each judge must meet the population-appropriate requirements.
Q: Can a city appoint multiple judges?
A: Mississippi law permits associate municipal judges in many configurations. The qualifications discussion applies to each appointee.
Q: What happens if a city appoints a judge who does not meet the requirements?
A: The appointment may be invalid, and decisions made by the unqualified judge could be challenged. AG opinions cannot validate past appointments; correct any deficiency going forward.
Q: Does the rule apply when a city contracts with a neighboring jurisdiction's court?
A: Inter-municipal arrangements (where one city's residents are served by another's court) have specific statutory frameworks. The qualifications rules still apply to whoever holds the relevant judicial position.
Background and statutory framework
Mississippi has a tiered approach to municipal courts. Small cities (under 10,000) can have a municipal court if they want one; mid-sized cities (10,000-19,999) must have one; larger cities (20,000+) must have one with a more restrictive judge-selection rule.
The qualifications hierarchy:
- Under 10,000: optional court; if appointed, judge is a Mississippi-licensed attorney or a justice-court judge of the county
- 10,000-19,999: required court; same flexibility on judge
- 20,000+: required court; judge must be a Mississippi attorney and a qualified elector of the county
The 20,000-threshold reflects the legislature's view that larger cities have judicial workloads warranting an in-county judge with civic ties to the county. Smaller cities benefit from a wider candidate pool.
The Moak opinion (Sept. 30, 2021), discussing Brookhaven, was the recent precedent the AG built on. Brookhaven was just over 10,000 but well under 20,000, so Section 21-23-5's flexibility applied.
The "latest available federal census" framing is consistent across many Mississippi statutes. The AG opinion reaffirms that "preliminary" census figures do not count; "finalized" or "official" figures do. This delays the effect of new census figures by months or years after the count itself.
The fourth and fifth questions in the request asked whether a deadlocked city council could appoint an out-of-county judge as a workaround. The AG said no: the qualified-elector requirement is statutory, not optional. Political deadlock is a problem for the city to solve through other means (negotiation, additional candidates, modifying compensation), not through ignoring the qualifications.
Citations and references
Statutes:
- Miss. Code Ann. § 21-23-2, latest available federal census provision (as referenced)
- Miss. Code Ann. § 21-23-3, municipal judge requirement and qualifications for cities of 10,000+
- Miss. Code Ann. § 21-23-5, municipal judge qualifications for cities under 20,000; mayor cannot serve
Prior AG opinions cited:
- MS AG Op., Fratesi (Sept. 3, 2021), official 2010 figures controlled until 2020 figures finalized
- MS AG Op., Moak (Sept. 30, 2021), Brookhaven (population ~12,000) judge not required to be qualified elector of Lincoln County
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/K.Merchant-November-23-2021-Appointment-of-Municipal-Judge.pdf
Original opinion text
November 23, 2021
Kimberly Jones Merchant, Esq.
Attorney for the City of Indianola
549 South Washington Avenue
Greenville, Mississippi 38701
Re: Appointment of Municipal Judge
Dear Ms. Merchant:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented
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When determining the latest available federal census, should the Board of Aldermen use the 2010 or the 2020 Census?
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Under what condition is a governing authority required to appoint a municipal judge who is a qualified elector of the county in which the municipality is located and an attorney at law?
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Under what condition is a governing authority allowed to appoint a municipal court judge who is only licensed in the State of Mississippi or a justice court judge of the county in which the municipality is located?
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If the governing authority is required to appoint a municipal judge who is a qualified elector of the county in which the municipality is located, but cannot agree on a candidate within the county to serve as the municipal court judge, is there any event that will allow the governing authority to appoint a municipal judge who is a resident of a county other than the county in which the municipality is located?
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If it is determined that the population is ten thousand or more, is there any circumstance wherein the City can appoint a judge outside of Sunflower County?
Brief Response
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To the extent the 2020 census figures have been finalized and made official, they constitute the results of the "latest available federal census." However, preliminary figures may not be used as the latest available federal census.
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Municipalities that have a population of 20,000 or more are required to appoint a municipal judge who is an attorney at law and is a qualified elector of the county in which the municipality is located.
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Municipalities that have a population of less than 20,000 may appoint a municipal court judge who is a licensed attorney in the State of Mississippi or a justice court judge of the county in which the municipality is located.
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We find no authority for the governing authority to appoint an attorney who resides outside the county in which the municipality is located as described in your request based on a failure of the governing authorities to agree on which attorney within the county should be appointed.
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See our response to questions 2 and 3.
Applicable Law
With respect to your first question, relying upon a Mississippi Supreme Court decision, we recently opined that "[u]ntil 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 21-23-2." MS AG Op., Fratesi at *1 (Sept. 3, 2021). To the extent the 2020 census figures have been finalized and made official, they constitute the results of the "latest available federal census."
Turning to your second and third questions, Section 21-23-3 provides, in 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 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 (emphasis added).
This office recently opined that municipalities with a population of 10,000 or more but less than 20,000, must meet the eligibility requirements of both Sections 21-23-3 and 21-23-5. MS AG Op., Moak at *2 (Sept. 30, 2021). Reading those statutes together, we found that the municipal judge for the City of Brookhaven, with a population of approximately 12,000, did not have to be a qualified elector of the county in which Brookhaven is located:
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.
Id. Accordingly, a municipal judge for a municipality with a population, according to the latest available federal census, of less than 20,000 does not have to be a qualified elector of the county in which the municipality is located. Such judges must merely be an attorney who is licensed to practice law in Mississippi or a justice court judge of the county in which the municipality is located. Id.
However, a municipal judge for a municipality with a population of 20,000 or more must 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.
With respect to your fourth question, we find no authority for the governing authority to deviate from the aforementioned statutes based on a failure of the governing authorities to agree on a candidate for municipal judge.
Your fifth question is answered by our combined responses to questions two and three.
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/ Phil Carter
Phil Carter
Special Assistant Attorney General