Mississippi Advisory Opinions August 22, 1979: 19790822 (August 22, 1979)

Advisory Opinion Text

Mrs. Dave S. Jones

Chairman

Washington County Election Commission

Post Office Box 1276

Greenville, Mississippi 38701

Dear Mrs. Jones:

Attorney General Summer has received your letter of request dated August 10, 1979, and has assigned it to me for research and reply.

You submit the following, to-wit:

‘The Election Commission in Washington County is in need of answers to the following questions.

‘Can a candidate who was defeated in the Primaries run again for the same office in the November election?

‘Can a person who has been convicted of a misdemeanor charge of shoplifting and who has appealed his case run for office?

‘Can a person who has been arrested but not convicted on a felony charge of embezzlement and has not yet been even indicted run for office?’

In response to your first question, we enclose and by reference incorporate herein, a copy of an opinion by Honorable John M. Weston to Honorable Rush M. Clements dated August 17, 1979.

In response to your second question, the offense ‘shoplifting’ as defined in Section 97–23–45, Mississippi Code of 1972, Subsection (1) (Misdemeanor), is not one of the disqualifying crimes set out in Section 241, Mississippi Constitution of 1890 nor Section 44, Mississippi Constitution of 1890, and such misdemeanor offense would not therefore constitute a disqualifying crime in the event that the conviction is affirmed.

In response to your third question, disqualification to run for, or hold office, must be based on conviction of a disqualifying crime. The fact that a person is charged with such offense does not constitute disqualification prior to actual conviction.

Very truly yours,

A. F. Summer, Attorney General.

P. L. Douglas, First Assistant Attorney General.

ATTACHMENT

August 17, 1979

Re: Elections—As Candidate in Primary and General for different offices

Honorable Rush M. Clements

Clements And Clements

Attorneys At Law

210 Locust Street

Rolling Fork, Mississippi 39159

Dear Mr. Clements:

Your letter request of August 14, 1979, addressed to Honorable A. F. Summer, Attorney General, has been received and assigned to this writer for research and reply. Your letter states:

‘As Attorneys for the Board of Election Commississioners, please tell us if a party can run in the primary election as a candidate for one office and, upon his defeat, run as an independent in the general election for a different office.’

The Mississippi Supreme Court in the case of Mississippi State Board of Election Commissioners v. Meredith , (1974) 301 So.2d 571, said:

‘. . . The statute (then § 3260, Mississippi Code of 1942 and now § 23–5–134, Mississippi Code of 1972) authorizes independent candidates to qualify, but such candidate should be truly independent. One may not adopt the label ‘independent’ after having participated as a candidate in a preceding party primary . . ..'

In this same case, the Mississippi Supreme Court reaffirmed Ruhr v. Cowan , 146 Miss. 870, 112 So. 386 (1927), and further said:

‘We reaffirm the holding in Ruhr that a candidate must resort to one of the methods authorized by Section 3260 as amended, but he cannot resort to both. To hold otherwise would radically alter the election process in the State of Mississippi and permit an individual to run as an independent in the general election regardless of the extent or nature of his participation in the preceding primary so long as he was not nominated by a political party. It would further alter the electoral process by permitting a defeated candidate in a preceding party primary to run in a general election . We do not glean from the amendment to the statute the legislative intent to authorize such action.’ (Emphasis supplied)

Based on these decisions, it is clear that a person cannot be a candidate in the primary election for one office, and failing to get the party nomination, thereafter be an Independent candidate in the general election for the same office, or, a different office.

With best wishes, I am

Sincerely yours,

A. F. SUMMER ATTORNEY GENERAL.

John M. Weston Special Assistant Attorney General

ATTACHMENT

June 10, 1975

Honorable Burris O. Smith

Attorney for the Board of Supervisors

Winston County

P. O. Drawer 31

Louisville, Mississippi 39339

Dear Mr. Smith:

Attorney General Summer has received your letter of request dated May 7, 1975, and has assigned it to me for research and reply.

You submit the following, to-wit:

‘If an individual pleads guilty to a misdemeanor or a felony in any state court and gets a suspended sentence does he have the right to vote and hold public office?’

We enclose herewith a copy of an opinion to Honorable Emmette P. Allen dated May 7, 1975, wherein this office stated, ‘There would not be a distinction between a plea of guilty or a conviction.’

Whether or not a sentence is suspended would not be material.

The disqualifying crimes are set out in Section 241, Mississippi Constitution 1890, and Section 23–5–35, Mississippi Code 1972, and are, of course, limited to the enumerated crimes.

With best personal regards, I am

Very truly yours,

A. F. SUMMER ATTORNEY GENERAL.

P. L. Douglas Assistant Attorney General

ATTACHMENT

May 7, 1975

Honorable Emmette P. Allen

Attorney

P. O. Box 828

Brookhaven, Mississippi 39601

Dear Mr. Allen:

Attorney General Summer has received your letter of request dated April 25, 1975, and has assigned it to me for research and reply.

You submit the following, to-wit:

‘Mr. Earl Burns, Circuit Clerk, has requested that I write you relative to the above man for ruling as to whether or not he can qualify to vote and to run for public office.

‘Mr. Delaughter plead guilty to burglary and larceny in the Circuit Court of Lincoln County, Mississippi in January 1965 and was given a suspended sentence. On the 25th day of February 1965 this suspension was revoked.’

Section 241, Mississippi Constitution 1890, provides, in part, ‘Every inhabitant of this state, . . . who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, . . .’.

We enclose herewith a copy of an opinion to Honorable Walter Brown, relative to the word ‘theft’.

Also, Section 23–5–35, Mississippi Code 1972, provides, in part, ‘A person who has been convicted of murder, rape, bribery, burglary , theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy, shall not be registered, or, if registered, the name of such person be erased from the registration book . . .’. (Emphasis added)

There would not be a distinction between a plea of guilty or a conviction.

Section 250, Mississippi Constitution 1890, provides in part, ‘All qualified electors and no others shall be eligible to office, . . .’.

We believe that the foregoing provides the answer to your question.

If we can be of further service, please call on us.

Yours very truly,

A. F. SUMMER ATTORNEY GENERAL.

P. L. Douglas Assistant Attorney General.