Mississippi Advisory Opinions May 09, 1997: AGO 97-0275 (May 09, 1997)

Advisory Opinion Text

Honorable Melvin Mitchell

Pascagoula City Attorney

Post Office Drawer 908

Pascagoula, Mississippi 39568-0908

Re: Garnishment of Wages by Municipal Courts

Dear Mr. Mitchell:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply. Your letter states in part:

As you well know, frequently persons convicted and fined in municipal courts fail to pay fines. Based on a prior opinion from your office, the wages of a criminal defendant can be garnished to collect a delinquent fine. On the matter of such garnishment, please answer the following questions:

1. Can the clerk of the municipal court issue a writ of garnishment returnable to the municipal court or must an abstract of the judgment be enrolled in the judgment rolls and the writ then be issued by the circuit clerk returnable to the municipal court?

2. If the clerk of the municipal court has the authority to issue a writ of garnishment for a delinquent fine, does the municipal police department have the authority to serve the writ or must it be served by the sheriff or a constable?

3. If the clerk of the municipal court can issue a writ of garnishment can the defendant/debtor be assessed the cost of issuing and serving the writ?

4. Since municipal courts do not have terms of court, if a writ were issued out of the municipal court, when would the garnishee's answer be returnable?

In response to your first question, Mississippi Code Annotated Section 21-13-19 states in part:

Judgments for fines, costs, forfeitures and other penalties imposed by municipal courts may be enrolled by filing a certified copy of the record with the clerk of any circuit court and execution may be had thereon as provided by law for other judgments.

Based on the above quoted statute, it is the opinion of this office that a municipal court does not have the authority to issue a writ of garnishment to collect a delinquent fine. The municipal court clerk should file a copy of the record with the clerk of the circuit court and the circuit court clerk should issue a writ of garnishment returnable to the circuit court. The procedure followed in enforcing the writ would be the same as any other case in circuit court.

Since a municipal court clerk does not have the authority to issue a writ of garnishment, your remaining questions are moot. For informational purposes, please see that attached MS AG Op., ??

If we may be of further service to you, let us know.

Very truly yours,

Mike Moore, Attorney General.

David K. Scott Special Assistant Attorney General

Attachment

* 6163 Office of the Attorney General

State of Mississippi

December 20, 1989

Honorable Cecil G. Anderson

Circuit Clerk

Post Office Box 1082

Prentiss, Mississippi 39474

Dear Mr. Anderson:

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

“This office would like an official opinion concerning an absentee ballot cast by a qualified elector prior to a primary election. After casting the absentee ballot in the Circuit Clerk's Office, the voter died prior to election day. Should this ballot be counted? This individual was well at that time”

We preface this opinion by stating that it is prospective in nature only and can neither validate nor invalidate any prior action of the election officials of your county.

Mississippi Code Annotated § 23-15-639 (Supp.1989) provides in part:

“At the close of the regular balloting and at the close of the polls, the election managers of each voting precinct shall first take the envelopes containing the ballots of such electors from the box, and the name, address and precinct inscribed on each such envelope shall be announced by the election managers. The signature on the application shall then be compared with the signature on the back of the envelope. If it corresponds and the affidavit, if one is required, is sufficient and the election managers find that the applicant is a registered and qualified voter or otherwise qualified to vote, and that he has not appeared in person and voted at the election, the envelope shall then be opened and the ballot removed from the envelope ..... (emphasis added)

Section 23-15-641(1) provides:

“If an affidavit or the certificate of the officer before whom the affidavit is taken is required and such affidavit or certificate is found to be insufficient, or if it is found the signatures do not correspond, or that the applicant is not a duly qualified elector in the precinct, ..... Without opening the voter's envelope the election managers shall mark across its face “REJECTED', with the reason therefor....” (emphasis added)

The above quoted statutory provisions require the election managers to determine, after the polls have closed, whether each absent voter is a qualified elector. If an individual who has cast a lawful absentee ballot dies prior to the time these determinations are made he is no longer a qualified elector and therefore, in our opinion, his ballot cannot be counted.

Sincerely,

Mike Moore Attorney General