Mississippi Advisory Opinions April 21, 1993: AGO 93-0199 (April 21, 1993)

Advisory Opinion Text

Honorable Kathryn Cummings

Ward One Councilman

Post Office Box 1898

Hattiesburg, Mississippi 39403–1898

RE: RESIDENCY REQUIREMENTS

Dear Councilman Cummings:

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

“I am writing this letter to request your opinion pursuant to Section 21–8–7 of the Mississippi Code of 1972, Annotated, regarding elections under the Mayor/Council form of government. You will find the facts listed below, followed by my questions.

FACTS:

1. Incumbent councilman is a resident of the Blair precinct, Ward One, City of Hattiesburg, and represents Ward One on the City Council.

2. Blair precinct has been moved from Ward One to Ward Four as a result of redistricting.

3. USM Golf Course precinct is a formerly unincorporated area of Forrest County that was annexed by the City of Hattiesburg. As a result of annexation and redistricting, USM Golf Course precinct is in Ward One.

QUESTIONS:

1. What are the consequences of the incumbent councilman moving from the Blair precinct to the USM Golf Course precinct?

2. Is the Ward One office vacated according to Section 21–8–7 if the incumbent moves from Blair precinct to USM Golf Course precinct before his current term of office is completed?

3. Can the incumbent qualify as a candidate for Ward One at the Blair precinct address and move to USM Golf Course precinct not less that fifteen (15) days prior to the first primary or special party primary, as outlined in Section 21–8–7(4)(a) ?

4. What series of steps should the incumbent take to insure that he can be properly elected to represent the new Ward One?”

Chapter 8, Title 21, Mississippi Code Annotated (Revised 1990) governs the Mayor–Council form of municipal government. Section 21–8–7(4)(a) provides in part:

“Councilmen elected to represent wards must be residents of their wards at the time of qualification for election, and any councilman who removes his residence from the municipality or from the ward from which he was elected shall vacate his office. However, any candidate for councilman who is properly qualified as a candidate under applicable law shall be deemed to be qualified as a candidate in whatever ward he resides if his ward has changed after the council has redistricted the municipality as provided in subparagraphs (c)(ii) and (iii) of this subsection (4), and if the wards have been so changed, any person may qualify as a candidate for councilman, using his existing residence or by changing his residence, not less than fifteen (15) days prior to the first party primary or special party primary, as the case may be, notwithstanding any other residency or qualification requirements to the contrary”

We preface our response to your inquiry by stating that the above quoted provisions are a part of a specific statute that is applicable only to the Mayor–Council form of municipal government and has no general application. Therefore, this opinion is limited to the Mayor–Council form of municipal government.

In response to your first and second questions, it is the opinion of this office that the provision quoted above pertaining to redistricting that allows a candidate to use his existing residence or change his residence not less that fifteen (15) days prior to the first primary to become a candidate in any ward he chooses allows an incumbent council member to move out of the geographical area from which he was previously elected (following redistricting) without vacating his office.

In response to your third question, it is the opinion of this office that Section 21–8–7(4)(a), in the event of redistricting, specifically allows any person to qualify as a candidate for the city council in any ward contingent upon said person moving into the appropriate ward not less than fifteen (15) days from the day of the first primary. If such person does not make a legitimate move establishing his legal domicile in the ward he is seeking to serve by the statutory deadline, he would not be qualified to be the party's nominee or receive any votes even though his name may appear on the primary ballot. Any votes cast for said candidate would be void.

We believe the above adequately answers your fourth question.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

Phil Carter Assistant Attorney General.