If a Mississippi county finds out it has been underpaying its justice court judges for years, how far back can it go to make them whole?
Plain-English summary
After receiving the May 2023 AG opinion to Judge Brandon Ladner, the Harrison County Board of Supervisors clerk recalculated justice court judges' salaries and discovered they had been underpaid for over three years. The Board asked whether it could correct the salaries going further back than three years, given that the underpayment was only discovered when the recent Ladner opinion came out.
The AG said claims against a county for unpaid compensation are subject to a three-year statute of limitations under § 15-1-49. The clock starts when the plaintiff "first had the right to demand payment of the officer or board authorized to allow or disallow the claim" (§ 15-1-51). Discovery doesn't restart the clock for purposes of these statutes. The factual questions (when a particular claim accrued, what salary was owed, whether the limitations period actually bars the claim) are for the Board, subject to judicial review.
The AG noted that the statute of limitations is an affirmative defense that must be raised when claims are made against a county and cannot be waived (citing the 2011 Neyman opinion). § 25-1-47 lets counties settle bona fide and just claims, but the county must make a factual finding that it is legally obligated for the claim. The county can't manufacture an obligation to pay outside the statute of limitations by characterizing it as a settlement.
The opinion suggests the Board may also wish to contact the State Auditor's Technical Assistance Division for guidance on the public-funds aspect.
What this means for you
If you are a Mississippi county attorney handling an unpaid-salary claim
Three-year limit under § 15-1-49. The clock starts when the official could first have demanded payment from the board, not when the underpayment was discovered. So:
- Compute when each underpayment first became demandable. If the Board approves the budget annually, each missing increment from each fiscal year accrues at that year's salary date.
- Calculate which years are within three years before the current claim date. Those are likely viable.
- Earlier years are likely time-barred. The statute of limitations is an affirmative defense the county "must" raise; it cannot be waived per Neyman.
- For viable years, consider settlement under § 25-1-47. A bona fide and just claim, with a factual finding by the Board that the county is legally obligated, can be settled.
- Document everything. State Auditor's office reviews county expenditures.
If you are a board of supervisors member
Don't approve back-pay for years outside the three-year window. Doing so risks a State Auditor audit finding for improper expenditure of public funds. Confine remediation to claims that are not time-barred. Within the limitations period, settlement requires a finding that the claim is bona fide and just and the county is legally obligated.
If you are a justice court judge or other county officer who has been underpaid
You have three years to bring a claim from the time the right to demand payment first arose. Don't sit on it. If you discover an underpayment from years ago, anything outside the three-year window is likely barred. Talk to a lawyer about the specifics; the accrual date can be technical.
If you advise multiple counties on similar discovery situations
This is a recurring pattern across Mississippi when AG opinions or audit findings reveal long-standing miscalculations. Counties should establish:
- Annual salary review processes to catch underpayments closer to when they happen.
- Documentation of discoveries so the accrual date is clear.
- Coordination with the AG opinion process so when a relevant opinion (like Ladner) comes out, salary calculations are reviewed promptly.
If you are a state auditor reviewing county expenditures
Look at back-pay payments carefully. Confirm:
- Was the claim within the three-year limitations period?
- Did the Board make a § 25-1-47 finding that the claim is bona fide and the county is legally obligated?
- Is the documentation in the minutes?
Payments outside the limitations window may be improper expenditures.
Common questions
Q: When does the statute of limitations clock start?
A: § 15-1-51 says the limitation runs "beginning at the time when the plaintiff first had the right to demand payment of the officer or board authorized to allow or disallow the claim sued upon." For unpaid salary, that typically means each pay period or fiscal year as it comes due.
Q: What's the statute of limitations period?
A: Three years under § 15-1-49 ("for actions for which no other period of limitation is prescribed"). The Mississippi AG opinions consistently apply this to county compensation claims (Barbour, 2016).
Q: Can the Board waive the statute of limitations?
A: No. The 2011 Neyman opinion says the statute of limitations is an affirmative defense that "must be raised when claims are made against a county and cannot be waived." This protects public funds.
Q: Can the Board settle anyway under § 25-1-47?
A: § 25-1-47 lets a county pay a settlement of a bona fide and just claim. But the Board must make a factual finding that the county is legally obligated, and a time-barred claim is generally not legally enforceable. The settlement authority does not let the county pay around the statute of limitations.
Q: What if the county genuinely never knew it was underpaying?
A: The discovery rule (which delays the start of the limitations period until discovery) does not apply to county compensation claims under § 15-1-51's plain language. The clock starts when the right to demand payment first arose, which is generally when the salary was supposed to be paid.
Q: Can the Board make findings that retroactively reset the clock?
A: No. Findings cannot retroactively change the accrual date or extend the limitations period.
Q: How does Forrest County v. Thompson apply?
A: The Mississippi Supreme Court in Forrest County v. Thompson, 37 So. 2d 787 (1948), held that statutes of limitations run in favor of counties against unpaid compensation claims. That principle remains controlling.
Background and statutory framework
Mississippi's general statute-of-limitations framework includes a three-year catch-all in § 15-1-49 for actions where no specific period is prescribed. § 15-1-51 modifies that for governmental claims: limitations run in favor of the state, counties, and municipal corporations beginning at the time the plaintiff first had the right to demand payment from the relevant officer or board.
Compensation claims fit this framework. Forrest County v. Thompson (1948) is the foundational Mississippi Supreme Court decision. The 2016 Barbour AG opinion applied the three-year rule to county compensation claims specifically.
§ 25-1-47 is the settlement statute. It lets counties pay negotiated settlements. The 2022 Dailey opinion clarified that:
- A lawsuit doesn't have to be filed for the county's settlement authority to exist.
- The claim must be bona fide and just.
- The county must make a factual finding that it is legally obligated and the claim is not exempt from liability.
So a time-barred claim is not legally enforceable against the county, the county is not legally obligated, and § 25-1-47 doesn't authorize payment.
The 2011 Neyman opinion adds the rule that the limitations defense cannot be waived. This protects public funds from voluntary settlements that would effectively pay barred claims.
The interplay: counties can pay valid back-pay within the three-year window, must respect the limitations defense for older claims, and should make formal findings on bona fide and legal obligation for any settlement.
Citations and references
Statutes:
- Miss. Code Ann. § 15-1-49 (three-year statute of limitations for actions where no specific period is prescribed)
- Miss. Code Ann. § 15-1-51 (limitations run in favor of state, counties, and municipalities from the time plaintiff first had the right to demand payment)
- Miss. Code Ann. § 25-1-47 (county and municipal authority to settle claims; bona fide and just)
Cases:
- Forrest County v. Thompson, 37 So. 2d 787, 792 (1948) (Mississippi Supreme Court, statutes of limitations run in favor of counties against unpaid compensation claims)
- Ferguson v. Mississippi Farm Bureau Cas. Ins. Co., 147 So. 3d 374, 378 (Miss. Ct. App. 2014) (cause of action accrues when it becomes an enforceable claim)
Prior AG opinions referenced:
- MS AG Op., Barbour (Nov. 18, 2016): three-year statute of limitations applies to claims for additional compensation owed by the county.
- MS AG Op., Sanders (Mar. 28, 2023): municipalities in § 25-1-47 includes counties.
- MS AG Op., Dailey (Feb. 24, 2022): settlement requires bona fide and just claim plus factual finding of legal obligation.
- MS AG Op., Neyman (July 29, 2011): statute of limitations is an affirmative defense that must be raised and cannot be waived.
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/11/T.Holleman-November-3-2023-Justice-Court-Judges-Salaries.pdf
Original opinion text
November 3, 2023
Tim C. Holleman, Esq.
Attorney, Harrison County Board of Supervisors
1720 23rd Avenue
Gulfport, Mississippi 39501
Re: Justice Court Judge's Salaries
Dear Mr. Holleman:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, upon receiving a copy of the opinion that our office issued to Judge Brandon Ladner on May 18, 2023, the clerk of the board of supervisors ("Board") recalculated the salaries of justice court judges and determined that they had not been paid the correct salaries for over three years.
Question Presented
Can the Board correct and pay justice court judges' salaries for periods more than three years before the error was discovered, or are such claims barred by the statute of limitations even though such errors were not discovered until the recently issued opinion to Judge Ladner?
Brief Response
Claims against the county for unpaid compensation are subject to a three-year statute of limitations, which begins to run "when the plaintiff first had the right to demand payment of the officer or board authorized to allow or disallow the claim sued upon." Miss. Code Ann. §§ 15-1-49 and 15-1-51. The point at which the statute of limitations begins to run for a particular claim and the salary owed are factual determinations to be made by the Board and cannot be made by this office.
Applicable Law and Discussion
The Mississippi Supreme Court has held that statutes of limitations run in favor of the county against claims of unpaid compensation. Forrest County v. Thompson, 37 So. 2d 787, 792 (1948). Section 15-1-49 provides a three-year statute of limitations after the cause of action accrued for actions for which no other period of limitation is prescribed. This three-year statute of limitations in Section 15-1-49 applies to claims for additional compensation allegedly owed by the county. MS AG Op., Barbour at 4 (Nov. 18, 2016). Pursuant to Section 15-1-51, "[t]he statutes of limitation shall run in favor of the state, the counties, and municipal corporations beginning at the time when the plaintiff first had the right to demand payment of the officer or board authorized to allow or disallow the claim sued upon." The Mississippi Court of Appeals has recognized "that a cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. . . . In other words, the statute of limitations begins to run when all the elements of a tort, or cause of action, are present." Ferguson v. Mississippi Farm Bureau Cas. Ins. Co., 147 So. 3d 374, 378 (Miss. Ct. App. 2014) (internal citations omitted). Further, the statute of limitations is an affirmative defense that must be raised when claims are made against a county and cannot be waived. MS AG Op., Neyman at 1 (July 29, 2011).
The point at which a specific cause of action accrues for individual claims of unpaid compensation is a factual determination that must be made by the local governing authorities, subject to judicial review, and is outside the scope of an official opinion. See Neyman at *1 ("The determination of whether the claim at issue is barred by the statute of limitations is one that cannot be made by this office by way of official opinion. Such a determination must be made by the board of supervisors, consistent with law and fact, or by a court of competent jurisdiction.").
We note that Section 25-1-47 allows counties to settle claims. See MS AG Op., Sanders at 2 (Mar. 28, 2023) (opining that municipalities in Section 25-1-47 includes counties). This office has consistently opined that the authority to settle a claim does not require the filing of a lawsuit, but the claim must be bona fide and just. MS AG Op., Dailey at 1 (Feb. 24, 2022). The county also "must make a factual finding that it is legally obligated for the claim and such claim is not exempt from liability." Id. This office cannot make factual determinations.
Because your question deals with the expenditure of public funds, you may wish to also contact the Technical Assistance Division of the Office of the State Auditor for further guidance.
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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General