Mississippi Advisory Opinions July 18, 1995: AGO 95-0455 (July 18, 1995)

Advisory Opinion Text

Senator W. L. Rayborn

Mississippi State Senate

3404 Harmony Drive, SE

Brookhaven, Mississippi 39601

Re: Initiative Petitions

Dear Senator Rayborn:

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

“Please provide your opinion as well as research material on the following:

Does a petition circulator have any constitutional or statutory right to collect signatures on PRIVATE property of any kind?

Does a petition circulator have any constitutional or statutory right to collect signatures on PUBLIC property of any kind?

Are there any court cases establishing the rights of petition circulators that might be applied in Mississippi? If yes, then please provide the cases.

According to the Mississippi Constitution and all state laws, can a petition circulator collect signatures in or near a voting precinct? If yes, then provide reference.

As a catch-all question referencing the above questions, are there any limitations on a person's ability to collect signatures?

In Article 15, Section 273, paragraph 2, sentence 1, of the Mississippi Constitution, it uses the terms ‘signed’ and ‘signatures'. Also, in Section 23-17-19, it uses the terms ‘signed’ and ‘written’ relating to the initiative process. What do these terms mean? And more specifically, does the Mississippi Constitution or statutes prescribe that a person must, in his or her own handwriting, fill in the information that is requested after their signature on an initiative petition? Can the information requested after their signature on an initiative petition be printed by computerized mechanism, from voting records, onto the petition, in advance of the person signing? The person signing is swearing the correctness of the information following their signature, can this be printed by mechanism in advance of the person signing?

In Article 15, Section 273, paragraph 2, sentence 1, of the Mississippi Constitution, it uses the terms ‘subject or subject matter’, please define these terms. Does the requirement that a proposed constitutional amendment deal with same subject of subject matter apply to the citizen initiative process? In recalling a bad law and a bad public official something dealing with the ‘same subject matter’?

In Article 15, Section 273, paragraph 5, of the Mississippi Constitution, it prohibits using the initiative process (d) to modify the initiative process for proposing amendments to this Constitution. Is there any prohibition to using the initiative process for proposing an amendment to the Mississippi Constitution to give the citizens of Mississippi the right to initiate statutes by an initiative process?

Can one proposing an amendment to the Mississippi Constitution using the initiative process include in the amendment a provision for reimbursement of expenses on the part of the sponsor as part of the requirements in Article 15, Section 273, paragraph 4 or in any other part of the amendment? If yes, then what would this sponsor have to do to obtain this reimbursement after the amendment becomes part of the constitution?

In response to your questions regarding the rights of a petition circulator on private and public property, we find no specific provisions of law that address the rights of petition circulators and are of the opinion that such individuals are subject to our trespass laws and other applicable laws just as are individuals who enter private property for other purposes. Likewise, persons collecting signatures on public property would be subject to any statutory or regulatory restrictions on solicitations, etc.

In response to your question regarding the collection of signatures at a polling place, Mississippi Code Annotated, Section 23-15-241 provides in part:

“The manager designated an election bailiff shall, in addition to his other duties, be present during the election to keep the peace and to protect the voting place, and to prevent improper intrusion upon the voting place or interference with the election, and to arrest all persons creating any disturbance about the voting place, and to enable all qualified electors who have not voted, and who desire to vote, to have unobstructed access to the polls for the purpose of voting ....”

Section 23-15-245 (Revised 1990) provides in part:

“A space of thirty (30) feet in every direction from the polls, or the room in which the election is held, shall be kept open and clear of all persons except the election officers ....”

The above quoted statutory provisions prohibit a petition circulator from being within thirty (30) feet of the room where the election is held. Said provisions also in our opinion, prohibit petition circulator from, in any way, impeding the progress of a voter who is approaching a polling place.

In regard to your question on whether the information following a petitioner's signature may be printed by computer, Mississippi Code Annotated, Section 23-17-19 (Revised 1990) contains the statutory petition form that must be used in the initiative process. It states in part:

“I have personally signed this petition, I am a qualified elector of the State of Mississippi in the city (or town), county and congressional district written after my name, my residence address is correctly stated and I have knowingly signed this petition only once.”

In response to your question, we are of the opinion that the required information following the signature of a petition may be printed by computer in advance of the signing of said petition.

In response to your question concerning the terms “subject” and “subject matter” we note that paragraph (2) of Section 273, Mississippi Constitution of 1890 is applicable only to constitutional amendments proposed by the Legislature.

We next turn to your question concerning the use of the initiative process to amend the Constitution to give citizens the right to propose statutes. In proposing the initiative amendment the Legislature debated the issue of authorizing the proposal of statutes by the initiative process and specifically rejected such provision by limiting the process to proposing amendments to the constitution. In Board of Supervisors of Harrison County v. Duplantier, 583 So.2d 1275 (Miss. 1991) the Mississippi Supreme Court, in quoting from a prior decision said:

“A constitution is framed for the guidance and Government of the whole people, and the words used therein are to be given their usual and popular signification and meaning; and, unless that be the manifest intention of the framers of the instrument, phrases or terms susceptible of two different interpretations are not usually to be given a restricted or a technical construction.”

In response to your question, we are of the opinion that it was the manifest intention of the Legislature to restrict the initiative process to proposals of amendments to the constitution with certain exceptions. In our opinion a proposal to amend the constitution to allow the process to be utilized to proposed statutes would be contrary to the manifest intent of Section 273 and is therefore prohibited. Further, such a proposal would be contrary to Article IV, Section 33, Mississippi Constitution of 1890, which vests the legislative authority in the Senate and House of Representatives and would constitute an attempt to amend said section by implication, which is not allowed under Section 273.

In response to your last question regarding the use of the initiative process to propose reimbursement of expenses incurred by the sponsor, we are of the opinion that such a proposal would be precluded as an attempt to modify the initiative process. The process as stated in Section 273 of the Constitution requires the preparation of a fiscal analysis of each initiative. In our opinion such fiscal analysis does not contemplate the inclusion of expenses incurred by the sponsors thereof.

Sincerely,

Mike Moore Attorney General

Phil Carter, Special Assistant Attorney General.