Mississippi Advisory Opinions November 21, 2008: No. 2008-00564 (November 21, 2008)

Mississippi Attorney General Opinions

2008.

No. 2008-00564.

2008-00564

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Dear Mayor Neely:

Attorney General Jim Hood has received your request for an official opinion and has assigned it to me for research and reply.

Issues Presented

1. Whether the Mayor and Board of Aldermen may take any action regarding a current alderman who has removed out of the municipality?

2. Whether the Mayor and Board of Aldermen may take any action regarding a current alderman's qualifications as a candidate for the 2009 municipal elections when the alderman has removed out of the municipality?

Response

1. Yes. It is the opinion of this office that it is a factual determination to be made by the Mayor and Board of Aldermen, subject to judicial review, as to whether an alderman has removed out of the jurisdiction from which he or she was elected.

2. No. The Mayor and Board of Aldermen have no authority to make factual determinations with respect to residency of candidates for municipal elective office. It is the responsibility of the appropriate party executive committee, as in the case of primaries, and the municipal election commission, as in the case of general or special elections, to make the factual determinations on questions of residency of candidates for municipal elective office pursuant to Miss. Code Ann. Sections 23-15-309 and-361.

Background Information

In your letter, you provide the following background information:

In June 2005, one of our aldermen was elected as an Alderman at large. At the time of this election, he was domiciled inside the municipality. In approximately August 2006, the alderman constructed a new home, and we now have information that the dwelling is located outside the municipal limits. The entire tract on which the dwelling is situated partially inside the municipal limits and partially outside the municipal limits. As stated hereinabove, the dwelling is located outside the municipal limits. Application for homestead exemption and an aerial photograph obtained from the Simpson County Tax Assessor's Office indicate that the dwelling is located outside the municipal limits. The alderman does pay vehicle ad valorem taxes and pays for and receives city water service and city garbage collection.

Applicable Law and Discussion

Issue 1

The City of Mendenhall operates under the Mayor-Aldermen form of government. Mississippi Code Annotated (1972) Section 21-3-9, which addresses the residency of the mayor and aldermen, provides:

The mayor and members of the board of aldermen shall be qualified electors of the municipality and, in addition, the aldermen elected from and by wards shall be residents of their respective wards. (Emphasis added.)

Section 21-3-11 of the Mississippi Code Annotated (1972) states:

If any person elected as an alderman from a particular ward shall remove his residence from said ward, his office shall automatically be vacated, and if the mayor or any alderman elected from the municipality at large shall remove his residence from such municipality, the office shall likewise automatically be vacated. The vacancy shall be declared by the mayor and board of aldermen in the case of an alderman and by the board of aldermen in the case of a mayor, and such vacancy shall be filled in the manner prescribed by law. (Emphasis added.)

Moreover, Section 25-1-59 provides that [i]If any.municipal officer during the term of his office shall remove out of the .municipality for which he was elected. ,such office shall thereby become vacant and the vacancy be supplied as by law directed."

Furthermore, "[i]n Mississippi, residence and domicile are synonymous for election purposes." Garner v. MS Democratic Executive Committee, 956 So.2d 906, 909 (Miss. 2007) ( citing Hinds County Election Comm'n v. Brinston, 671 So.2d 667, 668 (Miss. 1996)). "A person's domicile in election matters has been defined as the place: where he has his true, fixed, permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning.A domicile continues until another is acquired; before a domicile can be considered lost or changed, a new domicile must be acquired by removal to a new locality with intent to remain there, and the old domicile must be abandoned without intent to return thereto." Id. citing Smith v. Deere, 16 So.2d 33, 34 (1943). In addition, in a prior opinion issued to Essie Conaway, et al., dated September 20, 1989, we stated that "[o]wnership of property, whether real or personal, in the county (or municipality) is not an indispensable requirement to establishing domicile or permanent residence thereon or the continuation of such domicile and permanent residence once established."

In response to your first question, in an opinion addressed to Robert Chamberlin, dated September 17, 1999, we opined:

"Whether an officer has 'removed' out of the jurisdiction from which he or she was elected is a fact question which must be determined by the municipal governing board, subject to judicial review." MS AG Op., Chamberlin (September 17, 1999) ( citing MS AG Op., Hood (June 5, 1998); MS AG Op., Barcellona (February 23, 1996); MS AG Op., Johnson (January 19, 1996); MS AG Op., Hutto (July 10, 1991)).

This remains the opinion of this office.

Issue 2

With respect to qualification of candidates for municipal elective office, that responsibility lies with the appropriate party executive committee, as it relates to primaries, and to the municipal election commission, as it relates to general and special elections.

Paragraph 4 of Section 23-15-309 of the Mississippi Code states "[u]pon receipt of .information, the proper municipal executive committee shall then determine whether each candidate is a qualified elector of the municipality ., shall determine whether each candidate either meets all other qualifications to hold the office he is seeking or presents absolute proof that he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he could be elected to office."

Paragraph 5 of Miss. Code Ann. Section 23-15-361 provides:

"The municipal commission shall determine whether each party candidate in the municipal general election is a qualified elector of the municipality . and shall determine whether each candidate either meets all other qualifications to hold the office he is seeking or presents absolute proof that he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he could be elected to office."

In response to your second question, the Mayor and Board of Aldermen have no authority to make factual determinations with respect to questions of residency of candidates for municipal elective office. It is the responsibility of the appropriate party executive committee, as it relates to primaries, and the municipal election commission, as it relates to general and special elections, to make the factual determinations on questions of residency of candidates for municipal elective office pursuant to Miss. Code Sections 23-15-309 and-361.

Conclusion

Accordingly, it is the opinion of this office that the Mayor and Board of Aldermen, subject to judicial review, are responsible for making the factual determination as to whether an alderman has removed out of the jurisdiction from which he or she was elected. However, the Mayor and Board of Aldermen have no authority to make factual determinations with respect to residency of candidates for municipal elective office. It is the responsibility of the appropriate party executive committee, as in the case of primaries, and the municipal election commission, as in the case of general or special elections, to make the factual determinations on questions of residency of candidates for municipal elective office pursuant to Miss. Code Ann. Sections 23-15-309 and-361.

Please contact our office if we may be of further assistance.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By: Margarette L. Meeks

Special Assistant Attorney General