Mississippi Advisory Opinions December 13, 1995: AGO 95-0813 (December 13, 1995)

Advisory Opinion Text

Ms. Dona Rush

City of Belzoni

P. O. Box 674

Belzoni, MS 39038

Re: Alderman/Chancery Clerk

Dear Ms. Rush:

Attorney General Mike Moore has received your recent letter on behalf of the City of Belzoni and has asked me to respond. Your letter states:

I am writing on behalf of the Mayor and Board of Aldermen of the City of Belzoni concerning the electing of one of the Aldermen as Chancery Clerk for Humphreys County effective January 1, 1996.

The Mayor and Board need to know if this Alderman will be able to hold positions with the City and County. If not will the procedures for a special election have to be taken.

Art. 1, Sections 1 and 2 of the Mississippi Constitution state:

Section 1 . The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

Section 2 . No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.

In Dye v. State Ex rel. Hale , 507 So. 2d 332, 343 (Miss. 1987) the Mississippi Supreme Court stated that “no officer of one department may perform a function ‘at the core’ of the power properly belonging to either of the other two departments.” ( citing Alexander v. State of Mississipp i, 441 So. 2d 1329, 1345-46 (Miss. 1983) .

The Mississippi Supreme Court has held that a municipal board of aldermen is in the legislative branch. City of Jackson v. Freeman-Howie, Inc. , 121 So. 2d 120 (Miss. 1960) . This office is of the opinion that the office of chancery clerk is in the executive branch and that the chancery clerk exercises power at the core of that branch. See also the prior enclosed opinion to C. R. Montgomery, June 16, 1994 (circuit clerk is in the executive branch). Therefore, we are of the opinion that the separation of powers doctrine set forth in Art. 1, Sections 1 and 2 of the Constitution prohibits a person from serving as an alderman and as chancery clerk simultaneously. If the alderman takes office as chancery clerk, he will vacate the alderman's office, creating a vacancy necessitating a special election under Section 23-15-857, M.C.A . Enclosed is a copy of the procedure to be followed in conducting a special election.

If we may be of any further assistance, please let us know.

Mike Moore, Attorney General.

Alice Wise, Special Assistant Attorney General.

INTRODUCTION

The purpose of this Special Edition of Mississippi Election Times is to outline the steps that must be taken in order lawfully to hold a Municipal Special Election.

As you know, the new Mississippi Election Code (The Code) became effective on January 1, 1987. The Code makes significant changes regarding Municipal Special Elections to fill vacancies in elective offices.

GENERAL PROVISIONS

Mississippi Code Annnotated Section 23-15-857 (Special Pamphlet, 1986) sets forth the general procedure which must be followed to fill vacancies in municipal offices.

1. When unexpired term does not exceed six (6) months.

A vacancy in an elective municipal office the unexpired term of which does not exceed six (6) months must be filled by appointment by the municipal governing authorities. The “governing authorities” of a municipality are generally the Board of Aldermen and the Mayor. The Board of Aldermen would make such appointment subject to the Mayor's veto. If your municipality operates under either the Mayor-Council, Council-Manager, Commission, or Private Charter form of government, consult your City Attorney to determine who is legally authorized to make such appointments and the manner in which such appointments are to be made. The Municipal Clerk must then certify such appointment to the Secretary of State, and the appointee will be commissioned by the Governor.

II. When unexpired term exceeds six (6) months.

If a vacancy occurs in an elective municipal office the unexpired term of which exceeds six (6) months, the governing authorities must enter an order on the official minutes requiring an election to be held in the municipality to fill the vacancy and fixing a date upon which such election will be held. This order must be entered at the next regular meeting of the governing authorities after the occurrence of the vacancy or at a special meeting to be held not later than ten (10) days after occurrence of the vacancy. The order must set the election on a date not less than thirty (30) days nor more than fourty-five (45) days after the date on which the order is adopted. Again, if your municipality operates under either the Mayor-Council, Council-Manager, Commission, or Private Charter form of government, consult your City Attorney for possible variations of this procedure.

NOTICE

Notice of the election must be given by the Municipal Clerk by an appropriate publication in a newspaper published in the municipality, or if there is no newspaper published in the municipality, the notice must be published in a newspaper which has a general circulation within the municipality. Notice must also be given by posting a copy of the notice at three (3) public places in the municipality not less than twenty-one (21) days prior to the date of the election. One (1) of such notices must be posted at City Hall. The first notice in the newspaper must be published at least thirty (30) days before the date of such election.

JUSTICE DEPARTMENT SUBMISSION

Section 51.17, 28 CFR, Part 51 provides that the conduct of any Special Election is subject to the preclearence requirement of Section 5 of the Voting Rights Act of 1965 to the extent that the jurisdiction makes changes in the practices or procedures to be followed. The statute specifically provides that any discretionary setting of the date for a Special Election is subject to the preclearance requirement. Since Section 23-15-857 (2) does allow for a certain amount of discretion in setting the date of a Special Election, a submission asking for preclearance must be made to the U.S. Department of Justice. (Please see the attached excerpts from the Federal Register which set forth the procedures for making a submission.) Since Section 23-15-857(2) requires that a Special Election to fill a vacancy in municipal elective offices be held not later than forty-five (45) days after the date the order setting the date for the election is entered, it appears that the election would not have to be delayed if preclearance is not received prior to election day.

CANDIDATE QUALIFICATION

Each candidate must qualify by petition filed with Municipal Clerk at least ten (10) days before the date of the election. The petition must contain the names of at least fifty (50) qualified municipal electors if the municipality has a population of one thousand (1,000) or more. If the population of the municipality is less than one thousand (1,000), the petition must contain the names of at least fifteen (15) qualified municipal electors. We find no specific statutory requirements regarding the number of names that must appear on a petition to be a candidate for an office to be elected by a ward of a municipality. In order to be certain that a petition is legally sufficient, it is suggested that if the population of the ward is one thousand (1,000) or more, the names of at least fifty (50) qualified municipal electors who are registered in the ward appear on the petition. If the population of the ward is less than one thousand (1,000), the names of at least fifteen (15) qualified municipal electors who are registered in the ward would be sufficient. Copies (in reduced form) of acceptable petitions for at-large and ward elections are attached.

Mississippi Code Annotated Section 1-3-75(1972) requires that all petitions presented to the governing authorities of a municipality must be personally signed by each petitioner. Therefore, for example, if a husband signed his wife's name to a petition, her name could not be lawfully counted.

QUALIFYING FEE

There is no qualifying fee for candidates in Municipal Special Elections.

DETERMINING RESULTS

The candidate receiving a majority of the votes cast shall be elected. If no candidate receives a majority vote, the names of the two (2) candidates receiving the highest number of votes will be placed on the ballot for a “run-off election” to be held one (1) week after the Special Election, and whoever receives the most votes cast in such “run-off” shall be elected. If only one (1) person qualifies to run, the election shall be dispensed with and that person must be appointed. If no one qualifies, the election shall be dispensed with and the vacancy must be filled by appointment.

CERTIFICATE OF ELECTION

The Municipal Election Commission must give a Certificate of Election to the person elected. When the certificate has been issued and the individual elected has acquired the necessary surety bond, he or she may be sworn in and may assume the duties of the office. It is not necessary for the person elected to have a commission in order to be sworn in and assume his or her duties.

FILING COPY OF ORDER AND RESULTS

The Municipal Election Commission must provide the Secretary of State a copy of the order calling the Special Election and a statement of the results (that is, the precinct returns). The copy of the order and the statement of the results must be certified by the Municipal Clerk as being true and correct.

MISCELLANEOUS

Please note that Mississippi Code Annotated Section 23-15-221 (Special Pamphlet, 1986) requires the appointment of Election Commissioners and specifies that the governing authorities of municipalities having a population of less than twenty thousand (20,000) according to the latest Federal Decennial Census must appoint three (3) Election Commissioners; the governing authorities of municipalities having a population of twenty thousand (20,000) or more but less than one hundred thousand (100,000) must appoint five (5) Election Commissioners; and the governing authorities of municipalities having a population of one hundred thousand (100,000) or more must appoint seven (7) Election Commissioners.

In order for the Office of the Secretary of State to have a current listing of Municipal Election Commissioners, it is requested that each Municipal Clerk provide us with a copy of the order appointing Election Commissioners and the mailing address of each Commissioner if the order does not include such.

PETITION

AT LARGE

TO: Election Commission of the Municipality of __________

We, the undersigned qualified electors of the Municipality of __________, County of __________, State of Mississippi, hereby petition that the name of ____________________ be placed upon the ballot of the __________ election to be held on (General or Special) __________, 19___, as a candidate for the office of ____________________.

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