Mississippi Advisory Opinions April 22, 2013: AGO 2013-00121 (April 22, 2013)

Advisory Opinion Text

TEXT: Ms. Ashekia Ashford

Municipal Clerk

Town of Isola

Post Office Box 194

Isola, Missisippi 38754

AUTH: Phil Carter

RQNM: Ashekia Ashford

SUBJ: Elections

SBCD: 69

Re: Municipal Primary Election

Dear Ms. Ashford:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Facts

You state that Isola has no Municipal Democratic Executive Committee. The qualifying deadline for the upcoming municipal elections was Friday, March 8, 2013. As of that date, Candidate A had properly filed his petition as an independent candidate for mayor. Candidate B filed a statement of intent and paid a filing fee to be a candidate for the Democratic Party Nomination in an anticipated Democratic Primary.

You state that on or about March 22, 2013 you received a letter from the chairperson of the Humphrey County Democratic Executive Committee which stated that the committee, acting as the temporary executive committee pursuant to Mississippi Code Annotated Section 23-15-313(2), had certified Candidate B as the Democratic Nominee for Mayor for the June General Election.

Issue Presented

You ask whether Candidate B’s statement of intent and filing fee should be sent to the County Democratic Executive Committee which, purportedly, is acting as the temporary Municipal Democratic Executive Committee.

Response

It is the responsibility of each political party to determine if it wishes to conduct a municipal primary election in advance of the qualifying deadline. If a party decides to conduct such primary, we are of the opinion that it is the party’s obligation to inform the municipal clerk of that decision in writing in order for potential candidates to know what options are available to them in seeking municipal elective office.

In the instant case, we are of the opinion that the decision by the County Democratic Committee to act as the temporary municipal executive committee was not timely and that the filing fee should be refunded to Candidate B. The decision by the county executive committee to act as the temporary municipal executive committee, subsequent to an affirmative vote by that executive committee, must be provided in writing to the municipal clerk prior to the qualifying deadline.

In order for the municipal clerk to promptly supply all necessary information and pay over all fees received to the secretary of the proper municipal executive committee as required by Section 23-15-309(3), the clerk should ascertain if a legitimate municipal committee is in place before accepting the statement of intent and filing fee of a potential candidate for a party’s nomination. If no regular municipal executive committee was elected in the party’s last primary, the clerk should advise such potential candidate that there will be no party primary conducted unless a legitimate temporary committee is formed pursuant to Sections 23-15-313(1) and 23-15-315, or, in the alternative, the county executive committee informs the clerk in writing that it will act as the temporary municipal executive committee pursuant to Section 23-15-313(2) prior to the qualifying deadline.

Applicable Law and Analysis

The threshold question regarding this matter is whether the County Democratic Executive Committee accepted the responsibility of acting as the Temporary Municipal Executive Committee in a timely manner so as to insure an orderly process to determine who will have their names placed on the General Election Ballot.

We are of the opinion that the relevant statutes contemplate that, in order to have an orderly municipal party primary, the appropriate political party has the responsibility to have a lawfully constituted municipal party executive committee in place prior to the qualifying deadline.

Potential candidates who are allowed to file their statements of intent and pay the requisite filing fee when no municipal executive committee is in place are placed in the untenable position of not knowing whether a primary is going to be conducted. If there is no committee in place as of the qualifying deadline and the county party executive committee declines to act as the temporary municipal executive committee, such candidates would have no opportunity to have their names on the general election ballot by qualifying as an independent.

It is a political party’s responsibility to decide if it will conduct a municipal primary prior to the general election. If there is no lawfully elected municipal party executive committee in place, there are two ways that the appropriate county executive committee can establish a temporary executive committee to conduct a primary. Pursuant to Section 23-15-313(1) the chairman of a county executive committee may, upon petition of five (5) or more “members of that political faith, ” call a mass meeting of the municipal qualified electors of their political faith who may then select a temporary municipal executive committee. Alternatively, pursuant to Section 23-15-313(2) the county party executive committee may serve as the temporary municipal executive committee.

Section 23-15-309 provides in part:

(1) Nominations for all municipal officers which are elective shall be made at a primary election, or elections, to be held in the manner prescribed by law. All persons desiring to be candidates for the nomination in the primary elections shall first pay Ten Dollars ($10.00) to the clerk of the municipality, at least sixty (60) days prior to the first primary election, no later than 5:00 p.m. on such deadline day.

(2) The fee paid pursuant to subsection (1) of this section shall be accompanied by a written statement containing the name and address of the candidate, the party with which he is affiliated, and the office for which he is a candidate.

(3) The clerk shall promptly receipt the payment, stating the office for which the person making the payment is running and the political party with which such person is affiliated. The clerk shall keep an itemized account in detail showing the time and date of the receipt of such payment received by him, from whom such payment was received, the party with which such person is affiliated and for what office the person paying the fee is a candidate. The clerk shall promptly supply all necessary information and pay over all fees so received to the secretary of the proper municipal executive committee. Such funds may be used and disbursed in the same manner as is allowed in Section 23-15-299 in regard to other executive committees. (Emphasis added)

If there is no municipal party executive committee in place when potential candidates file their statements of intent and pay their filing fees, municipal clerks cannot comply with the statutory requirement that they “promptly” supply such fees and information to a “proper municipal executive committee.”

We have previously said:

Section 23-15-309 sets forth the procedure for qualifying as a candidate in a municipal primary. Paragraph (3) of that code section requires the municipal clerk to “promptly supply all necessary information and pay over all fees so received to the secretary of the proper municipal executive committee.” Therefore, a party executive committee must be in place on the qualifying deadline so the municipal clerk can “promptly” turn the fees and statements of intent over to said committee. MS AG Op., Howell (February 28, 2001)

Section 23-15-309 clearly contemplates that a municipal party executive committee be in place at the time a potential candidate files his statement of intent and pays the filing fee. However, if a clerk has accepted one or more potential candidate's statement of intent and filing fee at a time when no committee is in place and a legitimate temporary committee is subsequently formed in accordance with Sections 23-15-313 and-315 prior to the qualifying deadline, we are of the opinion that said temporary committee could proceed to review the potential candidates' qualifications and conduct a party primary and/or certify unopposed candidates as the party's nominees. MS AG Op., Bowman (March 16, 2001).

Section 23-15-313 provides in part:

(1) If there be any political party, or parties, in any municipality which shall not have a party executive committee for such municipality, such political party, or parties, shall within thirty (30) days of the date for which a candidate for a municipal office is required to qualify in that municipality select qualified electors of that municipality and of that party's political faith to serve on a temporary municipal executive committee until members of a municipal executive committee are elected at the next regular election for executive committees. The temporary municipal executive committee shall be selected in the following manner: The chairman of the county executive committee of the party desiring to select a temporary municipal executive committee shall call, upon petition of five (5) or more members of that political faith, a mass meeting of the qualified electors of their political faith who reside in such municipality to meet at some convenient place within such municipality, at a time to be designated in the call, and at such mass convention the members of that political faith shall select a temporary municipal executive committee which shall serve until members of a municipal executive committee are elected at the next regular election for executive committees. The public shall be given notice of such mass meeting as provided in Section 23-15-315. The chairman of the county executive committee shall authorize the call within five (5) calendar days of receipt of the petition. If the chairman of the county executive committee is either incapacitated, unavailable or nonresponsive and does not authorize the mass call within five (5) calendar days of receipt of the petition, any elected officer of the county executive committee may authorize the call within five (5) calendar days. If no elected officer of the county executive committee acts to approve such petition after an additional five (5) calendar days from the date, the chair of the county executive committee not taking action as provided by this section, the petitioners shall be authorized to produce the call themselves.

(2) If no municipal executive committee is selected or otherwise formed before an election, the county executive committee may serve as the temporary municipal executive committee and exercise all of the duties of the municipal executive committee for the municipal election. After a county executive committee has fulfilled its duties as the temporary municipal executive committee, as soon as practicable thereafter, the county executive committee shall select a municipal executive committee no later than before the next municipal election. (Emphasis added)

While Paragraph (2) of Section 23-15-313 was added subsequent to the issuance of Howell and Bowman and provides that the appropriate county party executive committee may act as the temporary municipal party executive committee, we remain of the opinion that a legitimate committee must be in place prior to the qualifying deadline.

It is our opinion that the phrase “before an election” means that a county executive committee must assume the duties of serving as the temporary municipal committee prior to all critical stages of conducting a municipal primary e.g. the printing of the ballots, the appointment and training of pollworkers and the deadline for candidates to file their statements of intent and pay the filing fees. Obviously, if that phrase is interpreted to mean before election day, it would lead to the absurd conclusion that a county executive committee could announce the day before a primary that it will act as the temporary municipal executive committee. This would be totally unworkable if two or more individuals had filed their statements of intent and paid their filing fees for the same office prior to the qualifying deadline when no legitimate committee was in place. It would be impossible to conduct the primary with no ballots and no trained pollworkers to conduct the primary.

In support of that conclusion, we note that in statutory construction one should not adopt a construction that will result in an absurdity or inequity. Quitman County v. Turner, 196 Miss. 746, 18 So.2d 122 (Miss. 1944). The construction of a statute which will be more beneficial and avoid objectionable consequences should be adopted. McCaffery's Food Market v. Mississippi Milk Commission, 227 So.2d 459 (Miss. 1969). One should give consideration to the purpose and policy the legislature had in view when it adopted the law. Aikerson v. State, 274 So.2d 124 (Miss. 1973); Brady v. John Hancock Life Insurance , 342 So.2d 295 (Miss. 1977); Absurd and unthought of results will not be attributed to the Legislature. If such results follow from the plain letter of the statute, if it can be reasonably done, some other construction of the statute must be found. Davenport v. State, 143 Miss. 121, 108 So. 433 (Miss. 1926).

The qualifying deadline was March 8, 2013. Also, you state that you received the letter certifying Candidate B from the County Democratic Executive Committee “on or about March 22, 2013.” Section 23-15-715 requires that ballots be available for absentee voting “within forty-five (45) days next prior to any election.” March 22, 2013 is the forty-fifth day prior to the May seventh (7 ) primary election date. If it had been a contested primary, the ballots could not possibly have been available for absentee balloting forty-five (45) days prior to the primary election. Therefore, the letter from the County Democratic Executive Committee was, in our opinion, not timely.

To interpret the statutes to allow a county executive committee to wait until after the qualifying deadline to decide if it will act as the temporary municipal executive committee, in addition to the possible absurd situations that could arise as indicated above, could lead to a committee making the decision not to conduct a primary or to certify a nominee based on the committee members personal feelings toward a particular candidate.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.