Mississippi Advisory Opinions December 19, 2014: AGO 2014-00500 (December 19, 2014)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Freda Phillips

SUBJ: Elections - Primary

SBCD: 70

TEXT: The Honorable Freda D. Phillips

Noxubee County Circuit Clerk

Post Office Box 431

Macon, Mississippi 39341

Re: Felon Serving on County Party Executive Committee

Dear Ms. Phillips:

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

Issue Presented

Your letter states:

I write this letter seeking your assistance for understanding House Bill 874, amending code section 25-15-115 of the Mississippi Code of 1972. I understand that the code has been amended to prohibit any person who has been convicted of any state or federal election crime in this state or in any other state from serving on any municipal executive committee, county executive committee, or state executive committee.

With the 2015 Primary Election quickly approaching, questions are arising and constituents want to know what actions will be taken against Noxubee County Chairman, Ike Brown. In 2007, according to U.S. District Judge Tom Lee, Brown was removed from the Chairman position, because he was discriminating against white voters.

Please be advised that the intent of this letter is for confirmation of interpretation reasoning only and will be used for that purpose only when the Circuit Clerk's office is approached with questions concerning whether or not the law prohibits Ike Brown from serving as chairman in all future elections. For reference, attached is a copy of the passed House Bill 874 with the amended section 25-1-115, accompanied by an article from the Jackson's Clarion Ledger.

Response

We have previously opined that service on a political party executive committee is serving in an office of trust. Section 44, Mississippi Constitution of 1890 specifically prohibits one who has been convicted of a felony from serving in an office of trust. We concluded that the individual in question is not eligible to serve on a political party executive committee, because he has a felony conviction of the crime of forgery and has not been pardoned for that crime. MS AG Op. Martinson (June 26, 2014).

If he is serving on an executive committee, it is incumbent on the committee to remove him in accordance with the political party's constitution and bylaws.

The Mississippi Democratic Party's Constitution has specific provisions for the removal of convicted felons from party executive committees. Please see the enclosed copy of what we believe to be the latest version of Article IV of that Constitution, which sets forth the procedure to remove convicted felons from such committees.

Martinson was issued prior to the effective date of House Bill 874 (July 1, 2014) amending Section 25-1-115 which now specifically prohibits one who has been convicted of "any felony in this state or any other state" from serving on any party executive committee. This also makes the individual in question ineligible to serve on any party executive committee.

That statute also provides that an individual who violates its provisions is guilty of a misdemeanor punishable in accordance with Section 99-19-31, which provides for a fine of not more than one thousand dollars ($1,000.00) and imprisonment in the county jail for not more than six (6) months or either. Prosecution of such offense should be handled by the county prosecuting attorney or district attorney.

Applicable Law

Section 44, Mississippi Constitution of 1890 provides in part:

(1) No person shall be eligible to a seat in either House of the Legislature, or to any office of profit or trust, who shall have been convicted of bribery, perjury, or other infamous crime; and any person who shall have been convicted of giving or offering, directly, or indirectly, any bribe to procure his election or appointment, and any person who shall give or offer any bribe to procure the election or appointment of any person to office, shall, on conviction thereof, be disqualified from holding any office of profit or trust under the laws of this state. (Emphasis added)

Section 1-3-19 provides:

The term "infamous crime," when used in any statute, shall mean offenses punished with death or confinement in the penitentiary.

Section 25-1-115 provides:

(1) No person shall serve on any temporary municipal executive committee, municipal executive committee, temporary county executive committee, county executive committee or state executive committee if the person has been convicted of any criminal violation of the Mississippi Election Code, has been convicted of an election crime in this state or any other state, has been convicted of any felony in this state or any other state, has been convicted of an election crime under federal law, has been removed from public office pursuant to Section 25-5-1, or who has resigned from office as part of a plea agreement.

(2) Any person who violates this section shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided in Section 99-19-31 and removed from the committee.

Section 99-19-31 provides:

Offenses for which a penalty is not provided elsewhere by statute, and offenses indictable at common law, and for which a statutory penalty is not elsewhere prescribed, shall be punished by fine of not more than one thousand dollars ($1,000.00) and imprisonment in the county jail not more than six (6) months, or either.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.