Mississippi Advisory Opinions December 21, 1995: AGO 000010913 (December 21, 1995)

AGO 000010913.

Dear Supervisors:

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

"Albert Butler, the incumbent District One Supervisor for Claiborne County, was defeated in the Democratic Primary by Evan Doss, Jr. Mr. Butler filed a contest with the Democratic Executive Committee alleging certain improprieties. He further filed an election contest in the Circuit Court of Claiborne County, Mississippi which was filed prior to the general election. In the general election, Evan Doss defeated Larry Clark, an independent. Judge Keith Starrett, who was appointed by the Mississippi Supreme Court to hear the election contest has invalidated the Democratic primary and the general election, and his rule was that Evan Doss, Jr. was not a resident of District One and was therefore not qualified to be a candidate. Judge Starrett further ruled that there were gross irregularities in the Democratic primary to such an extent that the will of the voters could not be ascertained. He further directed that an election be held between Albert Butler, who he stated was the Democratic nominee, and Larry Clark who was the independent, with the election to be set by the Governor's office. Evan Doss has appealed Judge Starrett's ruling to the Mississippi Supreme Court.

The Board of Supervisors does not know when the Governor's office might set an election date, nor when the Supreme Court might rule on Mr. Doss's appeal.

There is enclosed for you a copy of Judge Starrett's opinion along with the notice of appeal and bill of exceptions as filed by Evan Doss.

Please advise the Board of Supervisors at your earliest convenience whether the incumbent Albert Butler will continue to serve as District One Supervisor until the election between Butler and Clark, or until such time as the Supreme Court has rendered an opinion. It is the Board of Supervisor's understanding from earlier Attorney General's opinions that Mr. Butler will continue to serve in his position even into the year 1996 until one of the above happens."

It is our understanding that an election contest filed by Mr. Butler in the Circuit Court of Claiborne County subsequent to his filing of a contest with the Claiborne County Democratic Executive Committee (the committee) was pursuant to Mississippi Code Annotated, Section 23-15-927 (Revised 1990) which provides in part:

"When and after any contest has been filed with the county executive committee, ... and the said executive committee having jurisdiction shall fail to promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or complaint, or shall fail to give with reasonable promptness the full relief required by the facts and the law, the contestant shall have the right forthwith to file in the circuit court of the county wherein the irregularities are charged to have occurred, ... The filing of such petition for judicial review in the manner set forth above shall automatically supersede and suspend the operation and effect of the order, ruling or judgment of the executive committee appealed from." (emphasis ours)

The "order, ruling or judgment of the committee appealed from" is the certification of Mr. Doss as the nominee of the democratic party for the office of Supervisor, District One of Claiborne County and the committee's subsequent delay or refusal to grant the relief sought by Mr. Butler. Therefore, it appears clear that the certification of Mr. Doss as said nominee was superseded and suspended by the filing of Mr. Butler's petition for judicial review pursuant to the above quoted statute. That filing, the subsequent finding of the Court that Mr. Doss was not a resident of the district he sought to serve, and the ruling that Mr. Butler was the Democratic nominee, in our opinion, necessarily means that no one has been lawfully elected to the office in question for the term beginning January 1, 1996.

An appeal of the circuit court's ruling in a primary election contest is governed by Section 23-15-933 which provides:

"The contestant or contestee, or both, may file an appeal in the Supreme Court within the time and under such conditions and procedures as are established by the Supreme Court for other appeals. If the findings of fact have been concurred in by all the commissioners in attendance, provided as many as three (3) commissioners are and have been in attendance, the facts shall not be subject to appellate review. But if not so many as three (3) of the commissioners are or have been in attendance, or if one or more commissioners dissent, upon review, the Supreme Court may make such findings as the evidence requires."

We find nothing that indicates an automatic suspension of the lower court's ruling in the above quoted statute. Therefore, absent an order from the supreme court to the contrary, it is our opinion that the ruling of the Claiborne County Circuit Court remains in effect pending the outcome of the appeal.

In our recent opinion addressed to Honorable J.L. McCullough, dated December 5, 1995 (copy enclosed) we cited Section 23-15-193 which provides, in part, that "(a)ll such (county) officers shall hold their offices for a term of four (4) years and until their successors are elected and qualified", and expressed our opinion that an incumbent supervisor is specifically authorized to remain in office until such time as a successor is lawfully elected and qualified. Therefore, in our opinion, Mr. Butler is legally entitled to "hold over" in office and continue to serve as District One Supervisor beyond the current term until a special election is held and a successor is lawfully elected.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

By:

Phil Carter Special Assistant Attorney General

PC:sm Enclosure