Mississippi Advisory Opinions April 22, 2013: AGO 2013-00137 (April 22, 2013)

Advisory Opinion Text

TEXT: Deidra J. Bassi

Hortman Harlow Bassi Robinson & McDaniel, PLLC

Post Office Drawer 1409

Laurel, Mississippi 39441-1409

AUTH: Liz Bolin

RQNM: Deidra Bassi

SUBJ: Elections

SBCD: 69

Re: Candidate qualifications

Dear Ms. Bassi:

Attorney General Hood is in receipt of your request for an official opinion and it has been assigned to me for research and reply.

Background and Questions Presented

Your letter states in part:

I represent the City of Laurel and am requesting an opinion from you regarding whether or not a citizen is qualified to run for City of Laurel councilperson. The person who is requesting to be placed on the ballot for the upcoming general election in June as a councilperson was convicted in California State Court for four (4) felonies (i.e., possession of drugs for sale, transportation/sale of drugs, receiving stolen property and felon in possession of a weapon). It is my understanding that each of these four convictions occurred after 1992.

There were two (2) separate Orders from the same state court entitled, “Orders for Release from Penalties and Dismissal Under California’s Penal Code 1203.4 (on probation)” for the receiving stolen property felony and felon in possession of a weapon. Those two (2) Orders are attached hereto as Exhibit “A” and “B”.

Article 4 Section 44 of the Mississippi Constitution provides ineligibility to run for office for persons convicted of felonies such as the ones described above. Part (3) of Article 4 Section 44 of Mississippi’s Constitution provides . . . “This section shall not disqualify a person from holding office if he has been pardoned for the offense. . . “. I have also been informed by Liz Bolin in your office that “expungement” of the felonies will also not disqualify a person.

Section 1203.4 of the California Penal Code is the code section addressing the subject orders of dismissal. This code section provides for the dismissal, however, it also provides qualifiers/exceptions of the dismissal such as the one contained in Section 1203.4(a)(2) of the California Penal Code which provides: “1203.4 (a)(2) dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm...”

One qualifier/exception in particular is pivotal to the issue of this person’s eligibility to run for office and is found in Section 1203.4(a)(3) of the California Penal Code and provides: “Dismissal of an accusation or information underlying a conviction pursuant to this section does not permit a person prohibited from holding public office as a result of that conviction to hold public office.”

Therefore, while the California Court has dismissed the charges for some purposes, sub-section (a)(3) quoted above provides that the dismissal is not effective for the purpose which is at issue in this situation, i.e. the qualification for public office. I am enclosing a copy of CPC 1203.4 for your information attached as Exhibit “C” hereto. I spoke with an assistant district attorney in Alameda County, California and she confirmed my understanding of the subject statute.

In applying Mississippi’s law to the issue of this person’s eligibility, it is my appreciation that the above-described dismissals do not qualify as “pardons” or “expungements” as required by Mississippi law and thus, this person is not qualified to run as a councilperson in the upcoming election. Could you please provide me an opinion of whether or not this person is disqualified for running for public office in Mississippi, under Mississippi election requirements, due to the California felony convictions under these circumstances?

Response

Pursuant to Mississippi Code Section 7-5-25, this office is authorized to issue official opinions on questions of law. Whether or not a candidate for municipal office is qualified to run for office is a factual determination to be made by either a party municipal executive committee in a primary election or the municipal election commission in a general election. (See Miss. Code Ann. Sections 23-15-309; 23-15-361.) For informational purposes, we offer the following discussion.

Applicable Law and Discussion

Section 44 of the Mississippi Constitution addresses the ineligibility of persons to hold office due to felony convictions. Generally, persons convicted of felonies in this state are ineligible to hold public office. Pursuant to an amendment which took effect on December 8, 1992, persons convicted of felonies in other states which are also felonies in the state of Mississippi are disqualified from holding office as are persons convicted of felonies in federal courts. Section 44 (3) specifically excludes from the disqualification rule certain crimes and further recognizes that a person is not disqualified from holding office if he has been pardoned.

In a addition to receiving a pardon, this office has recognized that expungement of a felony conviction as well as non-adjudication of a guilty plea will restore an individual’s ability to run for public office. In an opinion to the Honorable James E. Dees, we opined that “a court order expunging a criminal record made pursuant to Mississippi Code Section 41-29-150 would restore an individual to his pre-conviction status and would not act as a disqualification to running for public office.” MS AG Op., Dees (June 2, 1997). We have also recognized that in the instance of a candidate who has pled guilty pursuant to Mississippi’s “non-adjudication statute”, Section 99-15-26, the plea guilty is withheld pending the successful completion of the conditions set forth in the order of non-adjudication and that there has been no conviction which would disqualify the candidate from having his name placed on the ballot. MS AG Op., Lagasse (September 27, 2002).

Along with your opinion request, you submitted copies of two orders from a California state court titled, “Order for Release from Penalties and Dismissal Under California’s Penal Code 1203.4 (on probation)”. You state that the orders address this candidate’s felony conviction for receiving stolen property and felon in possession of a weapon conviction. While we cannot offer an official opinion as to meaning of California Penal Code Section 1203.4, we do acknowledge the significance of the language in the orders which states “ This order does not relieve the defendant of the obligation to disclose the conviction in response to any direct question in any questionnaire or application for public office , or for licensure by any state or local agency, or for contracting with the California State Lottery.” Based on this language it does not appear that these orders were intended to expunge the candidate’s entire criminal record and there is no indication that the charges were non-adjudicated. Additionally, we note that the facts you present indicate these two orders address only two of the four felony convictions which implies the candidate has two remaining felony convictions.

In conclusion, if the appropriate municipal executive committee in a primary election or the municipal election commission in the general election makes a finding that the candidate was convicted of a felony in California which is also a felony in Mississippi on or after December 8, 1992, his name should not be placed on the primary or general election ballot unless all of the individual’s convictions were expunged, the charges were non-adjudicated or he received a pardon.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

Elizabeth S. Bolin, Special Assistant Attorney General