Mississippi Advisory Opinions April 26, 2005: AGO 2005-0193 (April 26, 2005)

Advisory Opinion Text

Marvin E. Wiggins, Jr., Esquire

Attorney for Town of DeKalb

Post Office Box 696

DeKalb, Mississippi 39328

Re: Candidates Petitions; Disenfranchising Crimes; Warrantless Arrests

Dear Mr. Wiggins:

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

You present three (3) separate issues which we will restate and respond to in the order presented.

ISSUE

(1): The form promulgated by the Secretary of State for use by independent candidates for securing the signatures of qualified electors recites that the name of the proposed candidate, the office sought, and the date of the election must be completed on each page of the petition. These criteria for the presentation of such petitions in the upcoming municipal elections have been questioned.

I spoke by telephone with Hon. Heather Wagner of your office and with Hon. Robbie Vance of the Secretary of State's office in regard to this reference. The reference does not state its source of authority. Mr. Vance was not able to cite the authority and suggested that I should seek assistance from your office. Ms. Wagner referred me to the case of City of Clinton v. Smith, 493 So.2d 331 (Miss. 1986), in which the Supreme Court of Mississippi stated that signatures “must appear upon a page which contains language expressing in an intelligible manner the desire of the signing party” to seek a referendum, with “language sufficient that one reading it before signing would not likely be misled as to the effect and import of his or her signature.”

Common sense would indicate that the same concerns cited by the Smith decision would apply to petitions for candidacy. Please provide an opinion as to the authority, if any, supporting this reference on the petition.

RESPONSE:

In our opinion to Lucien L. Bourgeois, Esquire of April 8, 1992 we opined that the principles enumerated by the Mississippi State Supreme Court in Smith , are by analogy, applicable to petitions calling for an election on bond issues. We now opine that those same principles are applicable to petitions of political candidates for office and that said case is sufficient authority to support the language on the petition form in question.

ISSUE

(2): In the opinions issued on August 18, 2000, and May 11, 2001, to Hon. Leslie Scott, Assistant Secretary of State for Elections, your office summarized the criminal offenses to be considered as disenfranchising. These generally fall into the categories of either serious crimes against the person, such as murder and rape, or crimes of dishonesty, such as false pretense, perjury, and theft.

In preparation for advising my client municipalities in the upcoming elections, I have become aware of instances in which a convicted felon committed the offense of preparing false income tax returns for others and another was convicted of selling property subject to a lien. Both were federal matters. Although not specified in the earlier opinions, these each have certain aspects of “dishonest” in common with those offenses cited in the earlier opinions. Also, Section 241, Mississippi Constitution named only ten (10) general offenses, which have since been expanded to include those cited in the aforesaid opinions. Would these or similar convictions constitute disenfranchising offenses?

RESPONSE:

It has been the long standing opinion of this office that only convictions of disenfranchising crimes committed under the jurisdiction of this State affect one's right to vote. MS AG Op., Doxey (August 27, 1987); MS AG Op., Wilburn (January 19, 1987) (copies enclosed). Therefore, convictions in federal courts are not disenfranchising. We quickly point out that pursuant to the 1992 amendment to Section 44, Mississippi Constitution of 1890, on or after December 8, 1992 one convicted in another state of a felony which is also a felony under Mississippi law and one convicted of a felony in a federal court is not eligible to seek or hold public office in this state. Excepted from this are violations of the U.S. Internal Revenue Code and violations of the tax laws of this state unless such offense also involved misuse or abuse of one's office.

ISSUE

(3): As the new municipal prosecutor, I have become aware of a practice in which a police officer witnesses the commission of a non-traffic misdemeanor in his or her presence and makes an arrest without a warrant. An affidavit is executed and sworn by the officer, and the municipal clerk bases the court's file upon the affidavit as the charging instrument. No warrant or citation for appearance will have been issued to the accused.

Mississippi Code Annotated Section 99-3-7 permits the warrantless arrest of the accused misdemeanant. However, the police chief, court clerk, and I have discussed the issue of whether the execution and filing of the affidavit, without service thereof or any other subsequent act, will suffice to institute the prosecution of the accused. The clerk's previous practice has been simply to notify the accused by letter of the upcoming trial date and of his/her right to request a trial. Mississippi Code Annotated Section 21-23-7 authorizes prosecutions brought by sworn complaint, but the code noes not state that the complaint must be served upon the accused. Please provide an opinion in regard to the procedures required to institute the prosecution of misdemeanors based upon a warrantless arrest.

RESPONSE:

All criminal proceedings in municipal court are commenced by filing a sworn complaint (affidavit). The complaint should state the essential elements of the offense and the statute or ordinance relied upon. The defendant is entitled to a copy of the complaint at no charge or fee. The defendant should be given reasonable notice, in writing, of the court date. In the event the defendant fails to appear on the court date, the court could issue a warrant, based on probable cause, for the arrest of the defendant. This opinion is based on the assumption that the defendant has been released and therefore there is no requirement of an initial appearance. Therefore, your current practice as described in your letter appears to comply with law.

Sincerely,

Jim Hood, Attorney General

Phil Carter, Special Assistant Attorney General