Mississippi Advisory Opinions April 06, 1995: AGO 000009772 (April 6, 1995)

AGO 000009772.

Dear Mr. Shannon:

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

"Our firm represents the Copiah County Board of Supervisors. The following has presented itself, and I am writing for an opinion as to the county's authority regarding same:

An individual has qualified to run for supervisor of Copiah County in the Republican Party Primary on August 8, 1995. This individual pled guilty to a charge of aggravated assault in the Circuit Court of Copiah County, Mississippi. He was sentenced to ten (10) years in the custody of the Department of Corrections with the first six months to be served at the Copiah County Detention Center on weeks that the individual was not working offshore, and the balance of time suspended and placed on five (5) year's probation. The individual has not been pardoned, according to our information, since the sentence was entered.

Section 241 of the Mississippi Constitution would allow this individual to vote, since aggravated assault is not one of those offenses listed that would disqualify him from voting. Section 44 of the Mississippi Constitution prohibits an individual from holding an office of profit or trust who has been convicted of an 'infamous crime'. Accordingly, there seems to be a question as to whether or not aggravated assault is an 'infamous crime'.

The question is whether this individual who has been convicted of aggravated assault is qualified to run for the office of Supervisor of Copiah County, Mississippi."

We assume your question relates to the duty of the Copiah County Election Commission to rule on the qualifications of party nominees and independent candidates to have their names placed on the November 7, 1995 General Election Ballot. See Powe v. Forrest County Election Commission, 163 So. 2d 656 (Miss. 1964).

We first note that there is a printing error in the 1994 Cumulative Supplement insofar as Section 44, Mississippi Constitution of 1890 is concerned. At the November 3, 1992 General Election the voters ratified an amendment to said section as set forth in House Concurrent Resolution No. 46, Chapter 591, Laws of 1992 which reads, in part, as follows:

"(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; ...."

Mississippi Code Annotated, Section 1-3-19 (1972) provides:

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

A conviction of the crime of aggravated assault which resulted in a sentence of ten (10) years in the penitentiary appears clearly to be an "infamous crime" as defined above.

We recognize that the statutory directive to party executive committees in determining the qualifications of candidates in their respective primaries is somewhat misleading in that it fails to take the provisions of Section 44 of the Constitution into account. Section 23-15-299 (6) provides:

"Upon receipt of the proper fee and all necessary information, the proper executive committee shall then determine whether or not each candidate is a qualified elector, and whether any candidate has been convicted or any crime listed in Section 241, Mississippi Constitution of 1890, or is a fugitive from justice for this state or any other state, and such charge upon which a candidate has fled has not been dismissed. If the proper executive committee finds that a candidate is not a qualified elector, or that such candidate has been convicted of any crime listed in Section 241, Mississippi Constitution of 1890, and not pardoned nor has served his sentence, or is a fugitive from justice as aforesaid, then the name or such candidate shall not be placed upon the ballot."

The Mississippi Supreme Court in Powe clearly ruled that county election commissions have the duty to determine the qualifications of persons certified to the commission as nominees of a political party as well as independent candidates. If a party executive committee relies upon Section 23-15-299 (6) supra to place on a primary election ballot the name of an individual who has been convicted of an "infamous crime" as defined above, even though that crime is not listed in Section 241, and said individual has not since been pardoned, and subsequently certifies that individual as the party's nominee, the appropriate county election commission would be obligated to not place the name of that individual on the general election ballot.

In response to your specific question, based on all of the above, it is the opinion of this office that one who has been convicted of the crime of aggravated assault and sentenced to time in the state penitentiary (even though a portion of the sentence was suspended) or who is convicted of any other "infamous crime" and has not received a pardon from the Governor is not eligible to hold the office of county supervisor or any other office of profit or trust.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

By:

Phil Carter Assistant Attorney General

PC:sm