Mississippi Advisory Opinions April 01, 2005: AGO 2005-0145 (April 01, 2005)

Advisory Opinion Text

The Honorable Donna Henry Dill

Circuit Clerk

Tishomingo County

1008 Battleground Drive

Iuka, Mississippi 38852

Re: Restoration of Rights

Dear Ms. Dill:

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

I would like to request an official opinion as soon as possible regarding the disqualification of a voter who has been convicted of receiving stolen property. This person has presented an order from a Circuit Judge which states, “Ordered and Adjudged that Plaintiff has been completely rehabilitated and that all rights set forth under the Constitution of the United States of America and the State of Mississippi be, and they are hereby restored to the Petitioner in accordance with Section 97-37-5(3) of the Mississippi Code of 1972, Annotated.” I am enclosing a copy of this order for your review. It is my understanding that this Code Section deals with the right for a convicted felon to possess firearms. This voter has an attorney, and they state that this order restores all of the man's rights.

This man registered to vote in our county in 1999. On the Application for Voter Registration the question regarding conviction of crimes did not list this specific crime, therefore, the voter marked, “No, he had not been convict the crimes listed.” His conviction had taken place in another county, and therefore, we had no record of his conviction for this crime. We only became aware of this when a municipality in our county sent a copy of this order to us because the man wanted to run for alderman. The municipal clerk and municipal election commissioners knew of this conviction, and they inquired of his rights being restored in order for him to be eligible to run for office. It is my understanding that we should now remove him from the voter rolls of Tishomingo County.

It has always been my understanding that there are only two ways that a person can have his voting rights restored. These are: (1) Have your state representative or senator to introduce a suffrage bill for you in open session. This will require a two-thirds vote of both houses; or (2) obtain an executive order from the Governor of Mississippi restoring your civil rights.

We have this day issued our opinion to Amelia G. Ramsey, Herlon Moore, and Bonnie Faye Vaughn, Election Commissioners for the Town Of Golden pertaining to the same court order referenced in your letter. Their specific question was whether the issuance of a certificate of rehabilitation pursuant to Mississippi Code Annotated Section 97-37-5(3) (Revised 2000) allows the recipient to qualify as a candidate for public office. A copy of that opinion is enclosed. In summary, we said that such a certificate only restores the right to possess a weapon and does not remove a conviction and does not allow a convicted felon to be qualified as a candidate for public office.

In regard to your question of whether the name of one convicted of the crime of receiving stolen property should be removed from the voter registration records, the Fifth Circuit Court of Appeals in Cotton v. Fordice , 157 F.3d 388 (1998) cited and quoted Section 241, Mississippi Constitution of 1890 which denies the ballot to any person convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy and then said:

Neither the Mississippi case law or statutes resolve whether ‘theft,’ as used in Section 241, includes the crime of ‘armed robbery.’ The federal courts' task is to determine as best we can ‘how [the Mississippi Supreme Court] would rule if the issue were before it.’ Federal Deposit Ins. Corp. V. Abraham, 137 F.3d 264, 268 (5th Cir. 1998) (citation omitted). In law, ‘theft’ is a general label for statutorily created crimes involving an unlawful taking. At common law, theft was defined as ‘the felonious taking and carrying away of the personal property of another with intent to convert it to the use of the taker without the consent of the owner.’ McLaughlin v. City of Canton, 947 F. Supp. 954, 970 n. 18 (S.D. Miss. 1995) (quoting 52A C.J.S. Larceny Section 1(2), at 398 (1968)). Similarly, Mississippi defines ‘larceny’ as ‘taking and carrying away, feloniously, the personal property of another.’ MISS. CODE ANN. Section 97-17-41 (Supp. 1998) . The Mississippi Code labels various theft crimes as larceny, ( Miss. Code Ann. Section 97-17-41) receiving stolen property, (Section 97-17-70) robbery, (Section 97-3-73) extortion (Section 97-3-82) and so forth. At least one other court has broadly interpreted Section 241 to conclude that ‘theft’ is an ‘umbrella term’ to describe those crimes that involve a ‘wrongful taking.’ McLaughlin, 947 F. Supp. 954, 970 n.18 (S.D. Miss. 1995) (citation omitted). As there is no crime labeled ‘theft’ in Mississippi, the term in Section 241 is only meaningful if it includes the larceny crimes ,........ (emphasis added).

Based on the above quoted authority, it is our opinion that a conviction of the crime of receiving stolen property constitutes a conviction of theft and the person so convicted is disenfranchised. MS AG Op., Scott (August 18, 2000). Therefore, the name of one convicted of the crime of receiving stolen property must be removed from the voter rolls.

You correctly note that one may have his suffrage restored by the passage of a suffrage bill by the Mississippi Legislature or by the issuance of an executive order by the Governor. A full pardon from the Governor would be required in order for that person to regain his eligibility to run for and hold public office. MS AG Op., Jones (June 6, 1997); MS AG Op., Chaney (March 9, 1993).

Sincerely,

Jim Hood Attorney General

Phil Carter Special Assistant Attorney General