Mississippi Advisory Opinions January 21, 2011: No. 2010-00703 (January 21, 2011)

Mississippi Attorney General Opinions

2011.

No. 2010-00703.

Dear Ms. Graves:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and reply.

Issues Presented

1. Whether the normal filing fee applies to election contests filed under Miss. Code Ann. Section 23-15-951?

2. Whether a bond must be posted by the candidate filing the election contest?

Response

1. Yes.

2. No.

Applicable Law and Discussion

Opinions of the Attorney General are issued on questions of law for future guidance of those officials entitled to receive them. An Attorney General's opinion can neither validate nor invalidate past action. Therefore, to the extent that your request deals with a past action, we must decline to respond with an official opinion of this office. However, by way of information only, we make the following comments for your future guidance.

Miss. Code Ann. Section 23-15-951, which you state in your letter, provides for the filing of an election contest in general elections. Specifically, Section 23-15-951 provides in part:

Except as otherwise provided by Section 23-15-955 or 23-15-961, a person desiring to contest the election of another person returned as elected to any office within any county, may, within twenty (20) days after the election, file a petition in the office of the clerk of the circuit court of the county, setting forth the grounds upon which the election is contested; and the clerk shall thereupon issue a summons to the party whose election is contested, returnable to the next term of the court, which summons shall be served as in other cases; and the court shall, at the first term, cause an issue to be made up and tried by a jury, and the verdict of the jury shall find the person having the greatest number of legal votes at the election. If the jury shall find against the person returned elected, the clerk shall issue a certificate thereof; and the person in whose favor the jury shall find shall be commissioned by the Governor, and shall qualify and enter upon the duties of his office. Each party shall be allowed ten (10) peremptory challenges, and new trials shall be granted and costs awarded as in other cases. In case the election of district attorney or other state district election be contested, the petition may be filed in any county of the district or in any county of an adjoining district within twenty (20) days after the election, and like proceedings shall be had thereon as in the case of county officers, and the person found to be entitled to the office shall qualify as required by law and enter upon the duties of his office.

The filing of a petition in the office of the circuit clerk contesting the results of an election pursuant to Miss. Code Ann. Section 23-15-951 commences the filing of a lawsuit under the Miss. Rules of Civil Procedure. Thus, the normal filing fee for lawsuits would be applicable.

As to a bond, Section 23-15-951 does not require the filing of a cost bond as required in primary election contests (see Miss. Code Ann. Section 23-15-927).

Conclusion

Accordingly, it is the opinion of this office that the normal filing fee for lawsuits would be applicable when an election contest under Miss. Code Ann. Section 23-15-951 is filed in the office of the circuit clerk. A cost bond, however, would not be applicable for an election contest filed under said section.

Please contact our office if we may be of further assistance.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By:

Margarette L. Meeks

Special Assistant Attorney General