Mississippi Advisory Opinions April 13, 2005: AGO 000016573 (April 13, 2005)

AGO 000016573.

Dear Mr. McInnis:

Attorney General Jim Hood has received your letter of request and assigned it to me for research and reply. Your letter states:

On March 9, 2005 the Jackson Municipal Democratic Executive Committee [Committee] met with all Democratic candidates who submitted qualifying papers to run for city office in the May 3 Municipal Democratic Primary Election.

At that time, candidates were asked if they met the qualifications to hold the office they sought. Each candidate was asked if he (or she) was a resident of the City and if he had filed homestead exemption that would provide clear proof of that residency. All candidates indicated that they were qualified and, since no challenges were filed, were certified by the Committee.

On April 4, 2005 the Committee received an allegation from a registered voter asserting that one candidate, who stated to the Committee that he had filed homestead exemption in Jackson, had in fact never done so and was not a resident of the City. The candidate has stated that he has not filed homestead exemption in the City. He does maintains a residency in the city limits and is a duly qualified elector documents show.

This committee wants to make certain that the Jackson Municipal Election Commission will duly certify all Democratic nominees for the General Election Ballot. We do not want any of our nominees to be subject to potential challenge by others.

Regarding the issue of a challenge to a candidate's qualifications in party primaries, Miss. Code Ann. Section 23-15-961 says:

"Any person desiring to contest the qualifications of another person as a candidate for nomination in a political party primary election shall file a petition specifically setting forth the grounds of the challenge within ten (10) days after the qualifying deadline for the office in question. Such petition shall be filed with the executive committee with whom the candidate in question qualified."

However, since the candidate in question is alleged to have materially misrepresented his qualifications to the Committee, we ask the following questions:

May the Committee accept a challenge to a candidate's certification more than 10 days after the qualifying deadline if the Committee relied on a material misrepresentation of fact by a candidate?

If so, may the Committee conduct a hearing to determine the qualifications of a candidate in question?

If, after a full hearing, the Committee finds that a candidate misrepresented material facts, may the Committee remove his name from the primary election ballot?

Because the primary election is less than four weeks away, we would appreciate your prompt response to these questions. If you need any additional information, please do not hesitate to contact me.

The Mississippi Supreme Court in Gourlay v. Williams, 874 So.2d 987, 989 (Miss. 2004) upheld the dismissal of a petition challenging the qualifications of a candidate in a primary election that was filed pursuant to Mississippi Code Annotated Section 23-15-961. The basis of the dismissal was that the petition was not filed within ten (10) days after the qualifying deadline as required by that statute. In that case the Court said:

In reviewing questions of law, this Court proceeds de novo. Callahan v. Leake County Democratic Executive Comm., 773 So.2d 938, 940 (Miss.2000) (collecting authorities). We have long held that where a statute is plain and unambiguous there is no room for construction. Id. The trial court was correct in holding that this suit was barred. However, we note that Section 23-15-961 provides in pertinent part:

(1) Any person desiring to contest the qualifications of another person as a candidate for nomination in a political party primary election shall file a petition specifically setting forth the grounds of the challenge within ten (10) days after the qualifying deadline for the office in question. Such petition shall be filed with the executive committee with whom the candidate in question qualified.

* * * * * (7) The procedure set forth above shall be the sole and only manner in which the qualifications of a candidate seeking public office as a party nominee may be challenged prior to the time of his nomination or election. After a party nominee has been elected to public office, the election may be challenged as otherwise provided by law. After a party nominee assumes an elective office, his qualifications to hold that office may be contested as otherwise provided by law. Miss.Code Ann. Section 23-15-961 (Rev.2001) (emphasis added).

In response to your first question and as required by the above cited and quoted authority, we are of the opinion that a municipal party executive committee may not hear or act on a petition challenging a candidate's qualifications that is filed after the statutory deadline of ten (10) days after the qualifying deadline.

There is no statute providing for any further challenge before the executive committee after the ten day deadline. If the candidate were to win the party's nomination, any information bearing on his qualifications may be presented to the municipal election commission which, pursuant to Section 23-15-361(5) must determine whether each party nominee meets all the qualifications to hold the office he is seeking.

If a party nominee is disqualified, the municipal party executive committee could nominate a substitute nominee for the office sought pursuant to Section 23-15-317.

Our response to your first question renders your second and third questions moot.

If our office may be of further assistance, please let us know.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Phil Carter Special Assistant Attorney General