Can the same person serve as a Mississippi city attorney and municipal court judge to save the town money?

Plain-English summary

Mayor Gwen Sims of the Town of Ethel asked whether one person could serve simultaneously as city attorney and municipal court judge, since the town could not afford to hire both. The AG said yes.

The separation-of-powers doctrine in Article I, Section 2 of the Mississippi Constitution prohibits a person from holding positions in two different branches of government if both positions exercise "core powers." Dye v. State, 507 So. 2d 332, 343 (Miss. 1987), defined core powers as actions "where the acts are ongoing and are in the upper level of governmental affairs and have a substantial policy-making character."

The AG has held consistently that a city attorney does not exercise power at the core of the executive branch. Adams (Oct. 30, 2015) and Hull (Mar. 23, 1995): "a city attorney does not exercise power at the core of the executive branch and, therefore, there is no violation of the separation of powers doctrine when one person serves simultaneously as city attorney and city judge."

The AG cautioned about the time-allocation issue: duties as municipal judge must be performed during hours the person is not being paid as city attorney, and vice versa. Adams confirmed this. The two roles cannot be billed to the same hours.

The AG also referred Mayor Sims to the Mississippi Ethics Commission and the Mississippi Commission on Judicial Performance for any potential conflict-of-interest analysis.

What this means for you

For small-town mayors and aldermen

The opinion holds that one person may serve simultaneously as city attorney and municipal court judge without violating the separation-of-powers doctrine, because (consistent with the Adams and Hull opinions) "a city attorney does not exercise power at the core of the executive branch." Mayor Sims raised the question because the Town of Ethel could not afford to hire both; the opinion answers that the combination is permissible.

For the person holding both roles

The opinion attaches one express caveat, drawn from the Adams opinion: "duties as a municipal judge must be performed during the hours the individual is not being paid as city attorney, and vice versa." For any conflict-of-interest questions arising from the dual service, the opinion refers the matter to the Mississippi Ethics Commission and the Mississippi Commission on Judicial Performance; it does not itself set out recusal rules or other procedures.

Common questions

Can the same person be city attorney and municipal court judge?
Yes. The AG has consistently held this combination does not violate separation of powers because the city attorney role is not a core executive power.

Why does the AG say city attorney is not a "core" executive role?
Because the city attorney provides legal advice and litigation services. Under Dye v. State, "core powers" are actions "in the upper level of governmental affairs" with "substantial policy-making character." A city attorney advises but does not make policy. The mayor and council make policy.

Are there time-allocation rules?
Yes. Per the Adams opinion, duties as municipal judge must be performed during hours the person is not paid as city attorney, and vice versa. No double billing.

What about cases where I prosecuted as city attorney and now would have to adjudicate?
The opinion does not resolve that. It refers any questions about potential conflicts of interest arising from the dual service to the Mississippi Ethics Commission and the Mississippi Commission on Judicial Performance.

Does this combination work for any size of municipality?
The AG opinion is general; it does not turn on town size. It is most often relevant in small towns where the workload of either role alone does not justify a full-time position.

Can the city attorney/judge serve other clients privately?
The AG opinion does not address that. Private practice while holding municipal positions is governed by the Rules of Professional Conduct and any applicable conflict-of-interest rules. Consult Bar guidance.

Background and statutory framework

Article I, Section 2 of the Mississippi Constitution sets up the separation-of-powers doctrine. Dye v. State, 507 So. 2d 332, 343 (Miss. 1987), defined "core powers" as the standard for incompatibility analysis.

The AG has consistently distinguished city attorney from core executive offices. AG Op., Adams (Oct. 30, 2015), citing AG Op., Hull (Mar. 23, 1995): "a city attorney does not exercise power at the core of the executive branch and, therefore, there is no violation of the separation of powers doctrine when one person serves simultaneously as city attorney and city judge."

The AG cautioned about hours allocation: duties as municipal judge must be performed during hours the individual is not being paid as city attorney, and vice versa (citing the Adams opinion).

The opinion refers "any questions regarding potential conflicts of interest that may arise from simultaneous service in these positions" to the Mississippi Ethics Commission and the Mississippi Commission on Judicial Performance. It does not analyze those conflict questions itself.

Citations

• Miss. Const. art. I, § 2 (separation of powers)
• Dye v. State, 507 So. 2d 332 (Miss. 1987) (core powers test)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/08/G.-Sims-August-27-2025-City-Attorney-Serving-as-Municipal-Court-Judge.pdf

Original opinion text

August 27, 2025
The Honorable Gwen Sims
Mayor, Town of Ethel
Post Office Box 58
Ethel, Mississippi 39067
Re:

City Attorney Serving as Municipal Court Judge

Dear Mayor Sims:
The Office of the Attorney General has received your request for an official opinion.
Background
As Mayor of the Town of Ethel, you state that the town cannot afford to hire both a municipal
court judge and a city attorney.
Question Presented
May the city attorney also serve as municipal court judge?
Brief Response
Consistent with state law and prior opinions of this office, a city attorney does not exercise power
at the core of the executive branch of government and, therefore, there is no violation of the
separation of powers doctrine when one person serves simultaneously as city attorney and
municipal judge.
Applicable Law and Discussion
The separation of powers doctrine prohibits a person from holding positions in two different
branches of government if both positions exercise "core powers" within their respective branch.
See MISS. CONST. art. I, § 2; MS AG Op., Hudson at 1 (June 26, 2020). "'Core power' has been
defined by the Mississippi Supreme Court to include those circumstances 'where the acts are
ongoing and are in the upper level of governmental affairs and have a substantial policy-making
character.'" MS AG Op., Hudson at 1 (citing Dye v. State, 507 So. 2d 332, 343 (Miss. 1987))
(internal citations omitted).
This office has previously and consistently opined that "a city attorney does not exercise power at
the core of the executive branch and, therefore, there is no violation of the separation of powers
doctrine when one person serves simultaneously as city attorney and city judge." MS AG Op.,
Adams at *1 (Oct. 30, 2015) (citing MS AG Op., Hull (Mar. 23, 1995)).
We do caution, however, that duties as a municipal judge must be performed during the hours the
individual is not being paid as city attorney, and vice versa. Adams at * 1 (internal citations
omitted).
Additionally, we refer you to the Mississippi Ethics Commission and the Mississippi Commission
on Judicial Performance for any questions regarding potential conflicts of interest that may arise
from simultaneous service in these positions.
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/ Caleb A. Pracht
Caleb A. Pracht
Special Assistant Attorney General