MS 2025-08-G-Sims-August-27-2025-City-Attorney-Serving-as-Municipal-Court-Judge August 27, 2025

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

Short answer: Yes. The Mississippi separation of powers doctrine does not bar simultaneous service as city attorney and municipal court judge. A city attorney does not exercise core executive power. Duties as municipal judge must be performed during hours the person is not paid as city attorney, and vice versa.

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 AG opinions are persuasive authority but not binding precedent.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

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 with budget constraints

Combining the city attorney and municipal judge roles into one position is legally permissible. For small towns where the workload of either role alone is modest, this can be a meaningful cost saving. Coordinate with the candidate on how the time will be tracked to keep duties separate.

For the candidate considering both roles

Track your hours carefully. The city attorney pays you for advice to the council and prosecution work; the municipal judge pays you for adjudication. They are different roles with different ethical obligations. Hours billed to one cannot be hours billed to the other.

Substantively, watch for conflicts: cases where you are prosecuting (as city attorney) and adjudicating (as judge). The AG referred this to the Commission on Judicial Performance because the prosecutor-then-judge dynamic can raise judicial ethics issues. Build a procedure where you recuse from any case where you have prosecuted, or have another judge handle municipal cases when conflicts arise. Most small towns have substitute-judge arrangements with neighboring towns or counties.

For city clerks tracking time and pay

Set up two separate timesheets and pay processes for the dual-role attorney/judge. Audit periodically that the two roles are not double-billed. Document the time allocation for accountability.

For the Mississippi Ethics Commission and Commission on Judicial Performance

The AG explicitly referred dual-role conflict questions to your offices. Confirm available guidance for combined city attorney/municipal judge service in small municipalities. The framework is established but the implementation details matter.

For municipal attorneys advising on this combination

This opinion is the controlling AG view. It is consistent with Adams (2015) and Hull (1995). Brief the council on the AG's view, advise the candidate on time allocation, and connect them with the Commission on Judicial Performance for adjudication ethics.

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?
That is a judicial ethics question. The AG referred the dual-role question to the Commission on Judicial Performance. The most conservative practice is recusal whenever you have a prior prosecutor relationship with the case.

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: the dual-role attorney/judge cannot bill the same hours to both positions.

Conflict-of-interest analysis (whether the dual service raises specific concerns under the ethics laws) is referred to the Mississippi Ethics Commission. Judicial ethics questions (whether a former prosecutor can sit as judge in cases the prosecutor handled) are referred to the Mississippi Commission on Judicial Performance.

Citations

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

Source

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