Jackson Jambalaya

 Was the appointment of the Interim Hinds County District Attorney constitutional? C.J. Lemasters reported at WLBT: 

The man Gov. Tate Reeves appointed as Hinds County’s top prosecutor lives in Madison County, and a law professor says that could make the appointment unconstitutional....

Mississippi Code Ann. § 25-31-1 requires anyone running for the position of district attorney must be a resident of that district for five years, as well as a regular licensed and practicing attorney.

The governor’s office said the emergency appointment statute does not carry any residency requirements. Press Secretary Shelby Wilcher said the authority for the appointment comes from Mississippi Code § 23-15-843, which she said places no eligibility requirements or other limitations on the governor’s discretion.

“The statute does not place any eligibility requirements or other limitations on the Governor’s discretion to select a person for this brief ‘emergency appointment,’” Wilcher said in a written statement. “Specifically, the statute neither references nor incorporates any of the ‘eligibility’ requirements of § 25-31-1.”

However, there’s another portion of 25-31-1 that also states the district attorney “shall possess all the qualifications of county officers.”

County officers must be qualified electors, meaning they must be a registered voter in that area.

“I’m not sure that the governor can overcome the constitutional prohibition, which says that in order to hold office, you have to be a qualified elector,” Mississippi Christian University law professor Matt Steffey said. “And the code section says the DA has to possess all the qualifications of county officers, and in addition, be a resident of the district.” Rest of article?

The Governor's office sent the following statement to this website: 

The authority for the Governor to make an “emergency appointment” to fill a vacancy in the office of the district attorney until such vacancy can be filled by special election is contained in Mississippi Code § 23-15-843 (“[T]he Governor shall make an emergency appointment to fill the vacancy until the same shall be filled by election.”). The statute does not place any eligibility requirements or other limitations on the Governor’s discretion to select a person for this brief “emergency appointment.” Specifically, the statute neither references nor incorporates any of the “eligibility” requirements of Mississippi Code § 25-31-1.

Prior to Mr. McCullouch’s “emergency appointment” by the Governor, he was temporarily appointed (“pro tempore”) to the same position by Senior Hinds County Circuit Judge Winston Kidd pursuant to Mississippi Code § 25-31-21. That statute also does not place any of the “eligibility” requirements of Mississippi Code § 25-31-1 on the Senior Judge’s discretion to make a temporary appointment. Rather, the statute authorizes the Senior Circuit Judge to temporarily appoint “some attorney at law to act for the state in the place of the district attorney during his absence or inability or disqualification.”

 
If the Legislature intended to impose the “eligibility” requirements of Mississippi Code § 25-31-1 on either the Governor or the Senior Circuit Judge, it certainly could have done so in the text of those statutes.  For example, Mississippi Code § 23-15-849 expressly limits the Governor’s authority to fill a vacancy in various judicial offices to “a qualified person from the district.” However, the Legislature chose wisely to not impose any such limitations on the discretion of either the Governor or the Senior Circuit Judge when making emergency and temporary appointments to fill a vacancy in the office of district attorney. This affords the discretion to the Governor and Senior Circuit Judge to select the person best suited to provide continuity and stability to the operation of the district attorney’s office until it can be filled by special election.

The Governor was aware that Mr. McCullouch is a resident of Madison County at the time of his July 10, 2026, emergency appointment. His appointment letter filed with the Secretary of State’s Office states that Mr. McCullouch is a resident of Madison, Mississippi.   

Posted below are the relevant code sections. 

Section 23-15-843: In case of death, resignation or vacancy from any cause in the office of district attorney, the unexpired term of which shall exceed six (6) months, the Governor shall within ten (10) days after the vacancy occurs issue a proclamation calling an election to fill a vacancy in the office of district attorney to be held on the next regular special election day in the district where the vacancy occurred unless the vacancy occurs in a year in which a general election would normally be held for that office as provided by law, in which case the appointed person shall serve the unexpired portion of the term. Candidates in such a special election shall qualify in the same manner and be subject to the same time limitations as set forth in Section 23-15-839. Pending the holding of a special election, the Governor shall make an emergency appointment to fill the vacancy until the same shall be filled by election.

As stated by the Governor's Office, there is no mention of minimum qualifications in the statute.  Judge Kidd agreed with this interpretation. 

Section 25-31-1: (1) The district attorney shall possess all the qualifications of county officers and, in addition thereto, shall be a resident of the district in which he or she seeks election for five (5) years immediately preceding the day of the election, shall be a regular licensed and practicing attorney, and shall have been duly admitted to practice before the Supreme Court of the State of Mississippi for a period of two (2) years.

Kingfish note: Thus the question is whether Section 25-31-1 incorporate or apply to Section 23-15-843.  Something tells me a defense attorney is going to challenge this in court.