Opinions, Local Gov., & State Law

June 26, 2013  | 

Attorney General Jim Hood 2Overview

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The Opinions Division is the primary division that gives advice to public officials in state and local government relating to the duties and responsibilities of their respective offices.  This advice may take the form of official opinions in writing pursuant to Section 7-5-25 of the Mississippi Code (state laws) or informal opinions by telephone, general correspondence, and email.  Unlike official opinions, informal opinions do not provide statutory protection from civil or criminal liability.

1.  Statutory Authority for Official Opinions

The Attorney General is required by Section 7-5-25 to provide an opinion in writing to certain public officials and agencies “when requested in writing, upon any question of law relating to their respective offices.”

Section 7-5-25 limits the Attorney General’s responsibility and authority to provide official opinions in several respects:

  1. Official opinions are provided only to the public officials or boards or agencies designated by statute.
  2. The Attorney General may only address questions of law related the office of the requestor, not questions of law which relate to other officials or their offices.
  3. The question of law must relate to future action.
  4. The matter which is the subject of the request must not be in litigation.

2.  Who May Request an Official Opinion

a.  State Officers: Official opinions are provided to certain enumerated state officers and “any other state officer.”

b.  Legislators: Section 7-5-25 states that official opinions shall be provided “to the Legislature, or either House or any committee thereof.”  This language has been interpreted to include individual legislators.

c.  State agencies: Section 7-5-25 enumerates specific state agencies entitled to official opinions as well as “any other state officer, department or commission operating under the law, or which may be hereafter be created.”

d.  Judges: Although judges are not specifically listed in Section 7-5-25, judges have traditionally received opinions as state or county officers.

e.  District Attorneys, County Attorneys, Attorneys for Boards of Supervisors, City Attorneys:

Section 7-5-25 specifically provides that district attorneys, county attorneys, and attorneys for the board of supervisors are entitled to official opinions.  It also provides that official opinions shall be provided to attorneys for the mayor or council or board of aldermen of any municipality.

f.  Municipal Officers:  mayors, council members or aldermen, city clerks, and chiefs of police have traditionally received official opinions.

g.  County Officers: Section 7-5-25 specifically provides that “the boards of supervisors of the several counties, the sheriffs, the chancery clerks, the circuit clerks, the superintendents of education, the tax assessors, county surveyors…and all other officers (and no others).”  This category has traditionally included justice court judges and justice court clerks.

3.  How to Request an Official Opinion

a.  Any public official or agency referenced above may seek an official opinion by making a written request in the form of a letter to Attorney General Jim Hood, P. O. Box 220, Jackson, MS 39205 or 550 High Street, Jackson, MS 39201.  The letter should be on official letterhead and must be signed by the requestor.

b.  The letter should succinctly state the question being asked and the relevant facts necessary to respond to the request.  The facts should relate to a real issue under consideration and not theoretical or hypothetical matters.

c.  Although not required, this office invites the submission of any legal memoranda which may have been prepared by the requestor’s legal counsel regarding the subject of the opinion request.

4.  How Requests Are Processed

a.  A request for an opinion, upon receipt, is directed to the Opinions Division.  The request is docketed, assigned to an attorney, and acknowledged.  Copies of the request may be distributed to related parties for input.  For example, a request from a county supervisor may be sent to the Mississippi Association of Supervisors.

b.  The special assistant attorney general assigned to handle the request will research the inquiry and draft a proposed response.  The proposed response will be a proposed opinion or a statement as to the reason no opinion can be issued, e.g., the request concerns past actions.

c.  The opinion draft is then submitted to the Opinion Committee.  This committee usually meets once a week to consider all opinion drafts submitted to it.  The committee will return the draft to the special assistant attorney general with instructions to release (pending further review) or for additional research and editing and resubmission to the committee for further consideration.

d.  Once approved by the committee, the approved draft is transferred to a special internal computer drive for review by all section heads.  Each section head is responsible for reviewing the draft for content and to determine if there is a reason, e.g., litigation, which would affect the release of the opinion.  All opinions are then reviewed by the Chief of Staff and the Deputy Attorneys General who may refer same to the Attorney General, if necessary.

e.  Upon completion of this process, the opinion is printed in final form on Official Opinion letterhead, signed, and mailed to the requestor.  A copy of same is then posted on the web site.  Most requests for official opinions are responded to within 30 days or less.

5.  Effect of an Official Opinion

a.  Pursuant to Section 7-5-25, a requestor, who acts in good faith and in accordance with the advice given in the opinion, will not be civilly or criminally liable as a result of such acts, unless the opinion is manifestly wrong and without any substantial support.

b.  An official opinion is formal advice.  It is not a ruling or order and does not require a particular action be taken.  An official opinion provides protection from civil and criminal liability to those officials who act in accordance with the opinion.

c.  The Mississippi Supreme Court views official opinions to be persuasive authority, but is not bound by them. Poppenheimer v. Estate of Coyle, 98 So.3d 1059, 1066 (Miss. 2012).

6.  When Official Opinions Will Not Be Issued

a.  Section 7-5-25 does not authorize the Attorney General to issue official opinions to private individuals or entities.

b.  The purpose of an official opinion is to offer advice regarding future actions to be taken.  Opinions will not be issued addressing past actions.  The validity of past actions can only be determined by a court of competent jurisdiction.

c.  Section 7-5-25 prohibits the Attorney General from issuing opinions on matters in litigation.

d.  Unless necessary to respond to a question of state law, opinions will generally not be issued on questions of federal law.

e.  Opinions will not be issued on questions of interpretation of a requestor’s rules, regulations, ordinances or procedures.

f.  Opinions will not be issued interpreting contracts.

g.  Opinions will generally not be issued on matters relating to conflicts of interest under Section 25-4-101 et seq.  Such questions should be submitted to the Mississippi Ethics Commission.

7.  How to Find Opinions Which Have Been Issued

Other opinions can be found through our searchable database on Westlaw.com. When using the searchable database, keep in mind that older opinions may not reflect current statutes or case law and that recently issued opinions might not be available.

Our most recently issued opinions can be found HERE.

8.  Other Matters Relating to Official Opinions

a.  Emergency Requests: If, due to unavoidable circumstances, an official opinion is needed on short notice, every reasonable effort will be made to accommodate this need.

b.  Reconsideration of an Opinion Already Issued: A requestor or an interested party may request that an opinion be reconsidered.  Such a request must be in writing and must set forth the reasons for which the opinion should be reconsidered.

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