Mississippi Advisory Opinions April 19, 1985: AGO 000004774 (April 19, 1985)

AGO 000004774.

Dear Mr. Monroe:

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

"I am attorney for the Town of Hickory, Mississippi. Enclosed find copies of petitions filed to qualify candidates for the municipal elections of the Town of Hickory by the following men: Benjamin F. Fielder, Charlie L. Lewis, Benjamin C. Hagedorn, Roy White, Robert Stamper, William (Kip) Monroe, John J. (Jim) McCormick and Robert L. Thompson. The petition filed by Ben Hagedorn is to qualify him as an independent candidate for Mayor. The petitions filed by Benjamin Fielder and Charlie L. Lewis were filed with the Town Clerk to qualify them as Democratic candidates for Aldermen. These petitions were filed on April 12, 1985. All of the other petitions were filed prior to April 5, 1985, to qualify these individuals as independent candidates for Aldermen. Mr. Hagedorn filed his petition on or prior to April 5, 1985.

"Please give me your opinion as to the following:

"(1) Are the petitions filed by Benjamin F. Fielder and Charlie L. Lewis sufficient to qualify them for the Democratic Primary on May 14, 1985, as candidates for Aldermen?

"(2) Are the petitions filed by Benjamin F. Fielder and Charlie L. Lewis sufficient to qualify them for the general election to be held on June 4, 1985, as independent candidates?

"(3) Would the remaining petitions which were filed on or before April 5, 1985, be sufficient to qualify these individuals as independent candidates in the general election to be held on June 4, 1985, even though the date indicated for the election on the petition is May 14, 1985."

Party executive committees and municipal election commissions have the authority to determine the qualifications of persons and to determine whether or not their names should be placed on the ballot. Powe v. Forrest County Election Commission, 163 So.2d 656 (1964).

In order for any person to qualify as a candidate in the Democratic Party Primary Election there must be a municipal democratic executive committee in existence with which one may qualify as a candidate and which will conduct the primary election as required by law. Please see the enclosed copy of an opinion to Honorable Semmes Luckett, dated April 8, 1985. Another indispensable requirement that must be met in order to be a candidate in a primary election is the filing of a corrupt practice, affidavit with the municipal clerk. Mississippi Code Annotated 23-3-3 (1972).

In response to your first question, if there is a municipal democratic executive committee "in place", said committee would make the factual determination as to whether or not individuals have fulfilled all lawful requirements to be placed on the ballot for the Democratic Primary. As stated previously, if there is no municipal democratic executive committee there can be no democratic primary election.

Furthermore, Mississippi Code Annotated 3152 (1942) requires that Corrupt Practices Affidavits be filed with the municipal clerk no later than 5:00 p.m. on the deadline day in order to qualify as a party candidate in a primary election.

In response to your second question, the qualifying deadline for independent candidates was April 5, 1985. Section 23-5-134, Code of 1972.

In response to your third question again the Municipal Election Commission must determine the validity of all petitions filed by individuals seeking to become independent candidates for municipal office. Section 23-5-134 supra, requires that the names of individuals who have been requested to be candidates by a specified number of qualified elections be placed on the ballot but does not require that an election date appear on the petition.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL

BY:

Phillip C. Carter Special Assistant Attorney General

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