Mississippi Advisory Opinions April 28, 2006: No. 2006-00160 (April 28, 2006)

No. 2006-00160.

DOCK 2006-00160

Dear Mr. Gilmore:

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

I have been advised by Mr. Reese Partridge to request a written opinion on the subject. Commissioner Cheramie's house in District # 5 was lost in the Katrina hurricane. She sold her house in district five and bought a house in district three, which she filed homestead on this purchase. What I need to know is there a cloud on Commissioner Cheramie performing the duties of an election commissioner for District # 5? As you are aware we have a Democratic Primary coming up in June. At the same time we are having a Special Election to fulfill a vacancy for the Hancock County School Board.

In the past I have had experience with the school board. It appears there are two different factions and if one loses the other will go to the courts, to make a complaint. After being sued by a candidate and being that, that candidate is in the upcoming election I want to make sure this problem with Commissioner Cheramie will not void an election.

What makes me think she should resign is in what was discussed at our annual ECAM Convention. This was information furnished by your office: "Summary of Attorney General Opinions on Election Issues", Crawford 6-8-94 (#64) and Hinds County Election Comm. v. Brinston, 671 So.2d 667 (Miss. 1996).

As I have previously stated I would like to have a written statement as to the legal position of Ms. Lynn Cheramie being the commissioner of District Five.

We have previously opined that if an election commissioner abandons the district he was elected to serve, he has, by operation of law vacated his office pursuant to Mississippi Code Annotated Section 25-1-59 (Revised 2003). MS AG Op. Crawford (June 8, 1994)

The established rule is that residency, once established, continues until removal to another locality with intent to remain there and abandonment of the old domicile without intent to return. Hubbard v. McKey, 193 So.2d 129 (1966).

As to the effect of filing for homestead exemption on establishing residency, the Mississippi State Supreme Court has said that such filing creates a strong but rebuttable presumption that the property on which homestead exemption is claimed is one's residence for election purposes. Hinds County Election Commissioners v. Brinston, 671 So.2d 667 (Miss. 1996).

Whether an elected official has vacated his or her office by abandoning the jurisdiction for which they were elected with no intent to return is a question of fact which, in this case, would have to be answered by the county board of supervisors. If the board of supervisors determines, consistent with the facts, that the election commissioner in question has removed herself from her district with no intent to return, a vacancy would have to be declared and a special election called pursuant to Section 23-15-839 to fill that vacancy.

If it is determined that the commissioner in question has vacated her office, her participation in the official actions of the commission would not invalidate those actions by virtue of Section 25-1-37 which provides that the acts of de facto officers are valid.

If our office may be of further assistance please advise.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By: Phil Carter

Special Assistant Attorney General