Does the cap 'in no event to exceed the compensation of the district attorney' apply to a Mississippi single-county public defender's salary?

Plain-English summary

Mississippi Code Annotated Section 25-32-5 sets up the salary scheme for full-time public defenders. The structure is proportional: each category of public defender is paid based on the number of counties served and is tied to the salary of a corresponding prosecutor.

• A public defender representing an entire multi-county circuit court district: salary "shall not be less than" the district attorney's compensation. The DA covers the same territory.
• A public defender representing one county: salary "shall not be less than" the county prosecuting attorney's compensation. The county prosecutor covers the same territory.
• A public defender representing two or more counties (but less than the entire district): salary "shall not be less than" the aggregate of the relevant county prosecutors' compensation, "but in no event to exceed the compensation of the district attorney."

The Harrison County Board attorney asked: does that final cap (no more than the DA) apply only to the multi-county-but-less-than-the-district category that comes right before it, or does it cap every category, including the single-county public defender?

The AG said the cap applies to all three categories. Reading the cap as covering only the immediately preceding category would create an absurd result: a public defender representing one county could potentially be paid more than a district attorney representing the entire multi-county circuit. The proportionality scheme requires the cap to apply across the board.

The AG flagged a textual cue too: if the legislature had wanted the cap to attach only to the immediately preceding category, it could have said "not to exceed" instead of "but in no event to exceed." The "in no event" phrasing reads as a comprehensive constraint, not a narrow one.

What this means for you

If you are a county board of supervisors setting a public defender's salary

The opinion holds that the "but in no event to exceed the compensation of the district attorney" cap applies to every category of full-time public defender, including a single-county public defender. Under Section 25-32-5, a single-county full-time public defender's salary "shall not be less than" the county prosecuting attorney's compensation (floor) and, under the opinion's reading, may not exceed the district attorney's compensation (ceiling).

If you are a public defender or a candidate for the position

The opinion confirms that the district attorney's compensation is the ceiling for every category of full-time public defender. For a single-county public defender, Section 25-32-5 sets the county prosecuting attorney's compensation as the floor.

How the AG reached this reading

The opinion reads Section 25-32-5 as a proportional salary scheme tied to the number of counties served, citing Manning v. State, 371 So. 3d 117 (Miss. 2022), that "[s]tatutes must be read according to their intended purpose." It reasons that letting a single-county public defender's salary exceed the DA's salary would break that proportionality, and that the drafters' choice of "but in no event to exceed" rather than "not to exceed" signals a comprehensive cap across all categories.

Common questions

Q: What if the public defender is part-time?
A: The opinion is about full-time public defenders. Section 25-32-5 distinguishes full-time from part-time. The proportional salary scheme described in the opinion applies to full-time roles. Part-time positions have different compensation rules, and this opinion does not address them.

Q: What is the difference between a "district attorney" and a "county prosecuting attorney" in Mississippi?
A: A district attorney is a state officer who prosecutes felony cases in the circuit court district (which usually covers multiple counties). A county prosecuting attorney handles county-level prosecutions, generally in justice court and sometimes in county court. Each has its own salary set by statute and local arrangements.

Q: Does this opinion change anything about the salary floor?
A: No. The "shall not be less than" language for each category is unchanged. The opinion only confirms the ceiling. The floors are: DA's compensation (for the entire-district public defender), county prosecutor's compensation (for the single-county public defender), and aggregate of relevant county prosecutors (for the two-or-more-counties-but-less-than-district public defender).

Q: Who is the "corresponding district attorney" for a single-county public defender?
A: The DA whose district includes the county. So if Harrison County is part of the Second Circuit Court District, the cap is the Second Circuit DA's compensation.

Q: Does the opinion define what counts as "compensation" for the cap?
A: No. The opinion holds the cap applies to every category of full-time public defender but does not parse whether "compensation" means base salary only or salary plus benefits.

Background and statutory framework

The salary structure of § 25-32-5, in relevant part:

Compensation for the public defender shall be fixed by the board of supervisors, if two (2) or more counties are acting jointly; however, the compensation for a public defender, who shall be full-time, representing an entire circuit court district shall not be less than the compensation of the district attorney, the compensation for a public defender representing one (1) county shall not be less than the compensation of the county prosecuting attorney and the compensation for a public defender representing two (2) or more counties, but less than the entire circuit court district, shall not be less than the aggregate of the compensation for county prosecuting attorneys of the counties served, but in no event to exceed the compensation of the district attorney.

The textual ambiguity is whether the final clause ("but in no event to exceed the compensation of the district attorney") attaches to only the immediately preceding category (the two-or-more-counties-but-less-than-district public defender) or to all three categories.

The AG read the statute through Manning v. State, 371 So. 3d 117 (Miss. 2022): "Statutes must be read according to their intended purpose." The intended purpose here is a proportional salary scheme tied to workload (counties served). Letting a single-county public defender's salary exceed the DA's salary would break the proportionality. So the cap applies broadly.

The AG also pointed to the legislative drafting choice. "But in no event to exceed" is comprehensive language. "Not to exceed," without the "in no event," would be narrower. The legislature chose the broader phrase.

Citations

• Miss. Code Ann. § 25-32-5
• Manning v. State, 371 So. 3d 117 (Miss. 2022)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/04/T.Holleman-April-18-2024-County-Public-Defenders-Salary.pdf

Original opinion text

April 18, 2024
Tim C. Holleman, Esq.
Attorney, Harrison County Board of Supervisors
1720 23rd Avenue
Gulfport, Mississippi 39501
Re: County Public Defender's Salary

Dear Mr. Holleman:
The Office of the Attorney General has received your request for an official opinion.

Question Presented
Based on clarification we received from you by telephone, we understand your question to be: Does the phrase "but in no event to exceed the compensation of the district attorney" set forth in Mississippi Code Annotated Section 25-32-5 apply to a full-time public defender representing one county?

Brief Response
Section 25-32-5's phrase "but in no event to exceed the compensation of the district attorney" applies to each category of full-time public defenders, i.e., "a public defender, who shall be full-time, representing an entire circuit court district . . . a public defender representing one (1) county . . . and . . . a public defender representing two (2) or more counties, but less than the entire circuit court district."

Applicable Law and Discussion
As an initial matter, to the extent this request involves any action already taken by the board of supervisors, this office cannot validate or invalidate any past action.

Section 25-32-5 provides, in relevant part:

Compensation for the public defender shall be fixed by the board of supervisors, if two (2) or more counties are acting jointly; however, the compensation for a public defender, who shall be full-time, representing an entire circuit court district shall not be less than the compensation of the district attorney, the compensation for a public defender representing one (1) county shall not be less than the compensation of the county prosecuting attorney and the compensation for a public defender representing two (2) or more counties, but less than the entire circuit court district, shall not be less than the aggregate of the compensation for county prosecuting attorneys of the counties served, but in no event to exceed the compensation of the district attorney.

(emphasis added). As stated by the Mississippi Supreme Court, "[s]tatutes must be read according to their intended purpose." Manning v. State, 371 So. 3d 117, 127 (Miss. 2022).

Section 25-32-5 lays out the salary of public defenders based on the number of counties served, and each category is proportional to the salary of the corresponding prosecutor. For a public defender representing an entire multi-county circuit court district, the salary correlates to the salary of the district attorney who also represents the entire multi-county circuit court district. For a public defender who represents only one county, the salary correlates to the salary of the county prosecutor representing only that one county. Likewise, a public defender who represents two or more counties but less than an entire circuit court district has a salary that correlates to the salaries of the county prosecutors representing those two or more counties. In sum, the salaries of the public defenders and prosecuting attorneys are commensurate and proportional based on the number of counties served.

This logic is reflected in the statute's language and structure. Compensation of the public defender is commensurate with the workload of the prosecutorial counterpart and is based on the category of representation: district to district, county to county, and counties to counties. Thus, the plain statutory purpose dictates that the final clause of the first sentence of Section 25-32-5, "but in no event to exceed the compensation of the district attorney," refers to and captures all of the preceding categories of public defenders. If the drafters had wanted to single out only the category immediately preceding the limiting language, they could have simply said "not to exceed" instead of "but in no event to exceed." For the statute to retain its logical, proportional salary scheme, a public defender representing only one county cannot make more than a district attorney representing an entire multi-county circuit court district.

For these reasons, it is the opinion of this office that the phrase "but in no event to exceed the compensation of the district attorney" applies to each category of full-time public defenders, i.e., "a public defender, who shall be full-time, representing an entire circuit court district . . . a public defender representing one (1) county . . . and . . . a public defender representing two (2) or more counties, but less than the entire circuit court district." Miss. Code Ann. § 25-32-5.

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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General