Mississippi Advisory Opinions January 10, 1997: AGO 96-0817 (January 10, 1997)

Advisory Opinion Text

Donna Ross Philip, Esquire

Secretary of State's Office

P. O. Box 136

Jackson, MS 39205-0136

Re: Sufficiency of Affidavit in Initiative Proposal

Dear Ms. Philip:

Attorney General Mike Moore has received your request for an opinion and has assigned it to me for research and reply. Your letter asks:

1. Does the enclosed “Certificate of Registration” [attached] satisfy the requirements of Miss. Code Ann. Section 23-17-1 ?

2. If it does not, does the Secretary of State have the authority to declare the initiative invalid or the authority to “cease processing” the initiative?

In response, Section 23-17-1 of the Mississippi Code provides in pertinent part as follows:

If any qualified elector of the state desires to initiate a proposed amendment to the Constitution of this state as authorized by subsections (3) through (13) of Section 273 of the Mississippi Constitution of 1890, he shall first file with the Secretary of State a typewritten copy of the proposed initiative measure, accompanied by an affidavit that the sponsor is a qualified elector of this state .

(Emphasis added).

The document submitted with the proposed initiative measure was not entitled “affidavit” but was entitled “CERTIFICATE AS TO REGISTRATION” and is a written statement by the circuit clerk certifying that the sponsor of the proposed initiative is registered to vote in Mississippi. The certificate is dated and the signature of the circuit clerk as executed by the deputy clerk appears thereon. In addition the circuit clerk's seal is impressed thereon along with the statement that his commission expires as of a certain date.

Whether this certificate constitutes an affidavit that the sponsor is a qualified elector of the state is a question of fact which must be determined in the first instance by the Secretary of State's office subject to judicial review. To assist in that determination we offer the following.

The word “affidavit” is defined by Black's Law Dictionary as:

A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it taken before an officer having authority to administer such oath. (citations omitted) A statement of declaration reduced to writing, and sworn to or affirmed before some officer who has authority to administer an oath or affirmation. (citations omitted)

In the case at hand the person making the statement or certification of fact (that the person in question is a registered voter in Mississippi) is also authorized by law to administer oaths and affirmations. Miss. Code Ann. Section 25-33-17 (clerks of the circuit court are notaries public by virtue of their office and have the power to authenticate all their acts, instruments and attestations by the common seal of office). As a notary public the circuit clerk has the power to administer oaths and affirmations. Miss. Code Ann. Section 25-33-9 . The clerk also has the power “to make declarations and certify the truth thereof, under his seal of office, concerning all matters done by him in virtue of his office.” Miss. Code Ann. Section 25-33-11 .

In addition, the definition of “certificate” in Black's Law Dictionary cites case law for the proposition that a “certificate” by a public officer is a statement written and signed, but not necessarily or customarily sworn to, which is by law made evidence of the truth of the facts stated for all or certain purposes.

To respond to your second question we must assume that the “certificate as to registration” is not an affidavit as that term is used in the statute. Although the statute requires that the affidavit accompany the proposed initiative measure when initially filed with the Secretary of State, the statute does not mandate any consequence as a result of a failure to attach the affidavit. Contrast section 23-17-5 of the Code, which directs the secretary of state to “refuse” to assign a measure a serial number unless the measure is accompanied by a Certificate of Review from the revisor of statutes.

The statute simply states that upon receipt of any proposed initiative measure the Secretary of State shall process it by submitting a copy to the Revisor of Statutes. The Revisor of Statutes then submits to the proposer a Certificate of Review. The proposer then submits the final wording of the proposed measure, along with the Certificate of Review, to the Secretary of State for assignment of a serial number.

It is our opinion that failure to file an affidavit along with the proposed initiative measure as provided in Section 23-17-1 of the Mississippi Code does not of itself require the Secretary of State to declare the initiative invalid or to cease processing the initiative, especially where the petitioner provides other equally or more reliable proof he is a qualified elector. However, the Secretary of State may refuse to process the initiative if he determines that the statute has not been complied with.

Very truly yours,

Mike Moore, Attorney General

Mike Lanford, Assistant Attorney General