Glazier, 092077 MSAGO, 1977-0034

Case DateSeptember 20, 1977
CourtMississippi
Honorable Herman Glazier
No. 1977-0034
Mississippi Attorney General Opinions
September 20, 1977
         Honorable Herman Glazier          Legal Assistant          Office of the Governor          Sillers Building          Jackson, Mississippi 39205          Dear Mr. Glazier:          We have received your opinion request relative to the establishment of the Office of Protection and Advocacy for Developmentally Disabled pursuant to P. L. 94-103.          In your letter you state:
“On behalf of Governor Finch, I request your opinion on the matter set out herein. “By Executive Order No. 242, dated May 3, 1977, a copy of which is attached, Governor Finch established within the Governor's Office the Office of Protection and Advocacy for Developmentally Disabled pursuant to Section 113(a) of P. L. 94-103. “The Developmental Disabilities Office, Department of Health, Education and Welfare, in its Memorandum dated July 29, 1977, a copy of which is attached, requires certain assurances prior to approval of plan and funding. “Your opinion is respectfully requested on the following questions: “1. If the Office of Protection and Advocacy for Developmentally Disabled, within the Governor's Office, is approved by the Developmental Disabilities Office, will this Office have the right and authority to pursue legal actions against other State service-providing agencies, if necessary? “2. If the Office of Protection and Advocacy sues such other State agencies, will a conflict exist or arise so that the Attorney General will not both represent the Governor's Office aforesaid in pressing the litigation while at the same time serving to defend the State service-providing agency being sued?”
         The assurances requested by this federal program are not a matter of discretion on the part of the Attorney General, but rather are determined by the statutory and case law of the State of Mississippi.          The authority of any State agency or State official to bring independent legal action must be viewed in light of the consistent pronouncements of the Mississippi Supreme Court in Capitol Stages, Inc. v. State ex rel. Hewitt, 157 Miss. 576, 128 So. 759 (1930), Kennington-Saenger Theatres, Inc. v. State, 18 So.2d 483 and State ex rel. Patterson, Use Adams Co. v. Warren, 180 So.2d 293.          It is clear that the Office of Protection and Advocacy would not possess independent or unlimited authority to pursue legal action, but can only act in a manner consistent with...

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