AGO 000016263.

• Case Date: August 06, 2004
• Court: Mississippi

Mississippi Attorney General Opinions 2004. AGO 000016263. August 6, 2004DOCN 000016263 DOCK 2004-0333 AUTH Reese Partridge DATE 20040806 RQNM Carl McGee SUBJ Separation of Powers SBCD 271 TEXT The Honorable Carl McGee City Councilman, City of Greenville 1047 Sisson Drive Greenville MS 38701Re: Separation of Powers Dear Mr. McGee:Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and response. In your letter you have asked that our office reconsider our opinion dated May 21, 2004, to Mr. Willie Griffin, Esq., attorney for the Washington County Board of Supervisors. The legal arguments in your letter mainly rely on an interpretation of the Mississippi Supreme Court's holding in In re Grant, 631 So. 2d 758 (Miss. 1994), and argues that the court "reached the conclusion that the constitutional doctrine of separation of powers has no place with regard to local, as opposed to state offices." After deliberate consideration we are unable to change our May 21, 2004 opinion. Since the In re Grant decision in 1994, this office has opined regularly that the separation of powers doctrine , embodied in Sections 1 and 2, Mississippi Constitution of 1890, applies to local government. See, among others, MS AG Op., Epps, March 21, 2003; MS AG Op., Horne, (September 6, 1996); MS AG Op., Henderson (April 12, 1995.) In re Grant concerned the constitutionality of Miss. Code Ann. Section 21-23-5 (1972), which allowed mayors of small municipalities to serve as municipal judges. The court provided a lengthy discussion of Mississippi cases on the matter of separation of powers at the local government level, then cited two U. S. Supreme Court decisions on the particular issue of mayors serving as judges in criminal cases, which the court found violated the due process guarantees of the 14th Amendment. See Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); and, Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). However, the In re Grant court then turned to its own decision in Ball v. Fitzpatrick, 602 So. 2d 873 (Miss. 1992), which the court stated is "probably more persuasive than the cases cited above". In that case, Fitzpatrick served as a Veterans Administration Clerk and Inventory Control Clerk in Lowndes County government...