Mississippi Advisory Opinions January 19, 1987: AGO 000007724 (January 19, 1987)

AGO 000007724.

Dear Mr. Wilburn:

Attorney General Edwin Lloyd Pittman has received your request for an opinion and has assigned it to the undersigned for research and reply. In your letter you state:

I would like to request an opinion as to whether or not a sheriff who has been convicted on a federal felony charge in 1982 can run for sheriff in the State of Mississippi.

Initially, we would note that there is no mention in your letter of pardon or other executive or legislative clemency, and this opinion will operate on the presumption that none has been granted.

Miss. Code Ann. 19-25-3 (1972, as amended) states in pertinent part as to the qualifications for sheriff as follows:

A person shall not be eligible to the office of sheriff who shall, at the time of the election, be a defaulter to the state, or any county or municipality thereof, or to the United States. Any person who is not a qualified elector,... shall not be eligible to said office.

The office of sheriff is a constitutional office. Mississippi Constitution of 1890, Article 5, Section 135. This Section does not set forth any qualifications for the office of sheriff.

The Mississippi Constitution of 1890, Article 12, Section 250 provides:

All qualified electors and no others shall be eligible to office, except as otherwise provided in this Constitution; provided, however, that as to an office where no other qualification than that of being a qualified elector is provided by this Constitution, the Legislature may, by law, fix additional qualifications for such office.

We find no other constitutional requirements to hold the office of sheriff other than that of being a qualified elector.

Consequently, 19-25-3, supra, being the legislative enactment of additional qualifications for sheriff, the only qualifications to hold the office of sheriff in the State of Mississippi are that (1) the person seeking office shall be a qualified elector of the state, and (2) not be a defaulter to any branch of government.1

We, thus, must look at who is a "qualified elector" in the State of Mississippi. Mississippi Constitution of 1890, Article 12, Section 241 provides in pertinent part that a person who qualifies as to age, registration, etc. and

. . . who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector.

1

We note that 19-25-3 contains the provision of belief in a Supreme being as originally required in Mississippi Constitution of 1890, Section 265. However, Section 265 of the Constitution has been held to be in violation of the federal constitution and, thus, not applicable at this point. See Tirmenstein v. Allain, 607 F. Supp. 1145 (S.D. Miss. 1985).

As a part of the new Election Code, the 1986 Legislature enacted 23-15-11 (Miss. Code of 1972, Supp. 1986). This section tracks Section 241 of the Constitution, and states in part that an elector ". . . has never been convicted of any crime listed in Section 241." In similar fashion, Miss. Code Ann. 23-15-19 (1972, as amended) restricts registration to vote to those who have not been convicted of any crime listed in Section 241 of the Constitution. Mississippi Constitution of 1890, Section 44 reads as follows:

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.

This Section has been interpreted by the Mississippi Supreme Court to apply to only those crimes for which conviction is obtained in a court of this state. Muirhead v. State Board of Election Commissioners, 259 So. 2d 698 (Miss. 1972) citing Mitchell v. McDonald, 164 Miss. 405, 145 So. 508 (1933).

Thus, since the conviction at issue in this opinion request is a federal conviction, we assume the same interpretation would apply if the question were presented to the Mississippi Supreme Court again under Section 241. Therefore, it is the opinion of this office that the conviction of a federal crime does not disqualify an individual from being an elector in this state, and, thus, does not disqualify that person from running for the office of sheriff under the presently existing statutes and precedents.

We do note that Miss. Code Ann. 23-15-151 (1972, as amended) requires the circuit clerk to keep a complete list of persons convicted in any court, state or federal, and compare this list to the registration book of voters.

However, the Legislature failed to Provide that the conviction of a federal felony, recorded under this statute, disqualifies an otherwise qualified elector. See, 23-15-11, supra. Further, Miss. Code Ann. 23-15-299(6) requires the executive committee to determine whether or not a candidate is a qualified elector and whether he has been convicted of a felony or is a fugitive from justice from this state or any other state and such charge has not been dismissed. However, since "felony" is not specifically defined as including convictions in other than state courts, it is the opinion of this office that these sections are not applicable to the question currently raised.

We also note that Miss. Code Ann. 25-5-1 (1972, as amended) requires that any public officer be removed from office upon conviction in any court of this state or any other state or in any federal court of any felony other than manslaughter or any violation of the United States Internal Revenue Code, The Mississippi Supreme Court has discussed this section at length in Cumbest v. Commissioners of Election of Jackson County, 416 So. 2d 683 (Miss. 1982). The Court concluded that under this section any public officer removed from office following his conviction forfeits all of his rights to that office at that time. The Court specifically held "His right to such office for the remainder of the term to which he was elected is thereby extinguished. [416 So. 2d at 689]. From this, it is the opinion of this office that even though an officeholder might be removed from his office for conviction of a felony in federal court, that this would not preclude him from running again for election to that office. This interpretation is in line with Cumbest, supra, and Mitchell v. McDonald, supra. Otherwise, the statute would overcome the clear wording of the Mississippi Constitution as interpreted by the Mississippi Supreme Court.

Therefore, a person convicted of a federal crime who is not a defaulter to a body of government nor otherwise disqualified may run for the office of sheriff in this state.

We would further note that unlike "law enforcement officers" under the Minimum Standards Act, Miss. Code Ann. 45-6-1, et (1972, as amended) there is no requirement that a sheriff be able to bear arms. Thus, even though a person convicted of a federal crime cannot possess a firearm under federal law, 18 U.S.C. 922(h) and 18 U.S.C. App. 1202, he would not be disqualified from holding the office of sheriff in this state as there is no requirement that a sheriff be able to bear arms.

Very truly yours,

EDWIN LLOYD PITTMAN, ATTORNEY GENERAL STATE OF MISSISSIPPI

By:

Donald G. Barlow Special Assistant Attorney General

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