Mississippi Advisory Opinions June 27, 1983: 19830627 (June 27, 1983)

Advisory Opinion Text

Honorable Larry O. Norris

Chairman

Forrest County Democratic Executive Committee

Post Office Box 272

Hattiesburg, Mississippi 39401

Dear Mr. Norris:

Attorney General Bill Allain has received your request for opinion and has referred it to the undersigned for research and reply.

Your request for opinion concerns the qualifications of a person, whom you name, to be a candidate for the office of Supervisor in Forrest County, Mississippi.

While the Attorney General is authorized, when requested in writing, to render his opinion in writing upon any question of law relating to the conduct of elections to officers having duties with respect thereto, the Attorney General is not legally authorized to make individual determinations as to whether any certain individual's name should be placed upon the ballot. Opinions of the Attorney General in response to written requests set forth the applicable or controlling statutes and court decisions without regard to the identity of any particular individual.

As you point out, § 3118, found on Page 296 of the 1982 Cumulative Supplement to the Mississippi Code of 1972, Annotated & Amended, places the duty and responsibility, regarding primary elections, upon the proper executive committee to determine whether or not each candidate is a qualified elector and otherwise qualified within the terms and provisions thereof, and any other applicable law, to be a candidate for the office being sought and eligible to have his or her name placed upon the ballot.

With these prefatory remarks in mind and in response to your request, you relate that a person, whom you name, was convicted in March, 1973, for committing the crime of embezzlement in the Circuit Court of Forrest County, Mississippi and sentenced to serve a term in the Mississippi State Penitentiary.

You further advise that the individual was parolled and in the latter part of 1980, Governor William Winter issued an Executive Order restoring to such person “any civil rights lost” by virtue of said conviction. Additionally, you advise that said person presented the Governor's Executive Order to the county registrar in the early part of 1981, pursuant to which he was registered as a voter and a qualified elector in Forrest County, Mississippi.

On behalf of the Couty Democratic Executive Committee you request an opinion as to whether the name of said individual may be legally placed upon the ballot as a candidate for the office of Supervisor in Forrest County, Mississippi pursuant to the provisions of § 3118, Supra .

§ 3118, Supra , provides in pertinent part:

“The proper executive committee shall . . . determine whether or not each candidate is a qualified elector and whether any candidate has been convicted of . . . embezzlement . . . If the proper executive committee finds that a candidate is not a qualified elector, or that such candidate has been convicted of any of the crimes herein set forth and not pardoned nor has served his sentence, . . . then the name of such candidate shall not be placed upon the ballot.” (Emphasis added)

Reading the above quoted provisions of the statute literally, a pardon is set forth as a condition upon which, notwithstanding a prior conviction of embezzlement, a person's name may be placed upon the ballot as a candidate.

§ 124 of the Mississippi Constitution of 1890 pertains to the pardoning power of the Governor and contains the limitation in cases of felony that “ . . . no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.”

The Mississippi Legislature having utilized the word “pardoned” and no other words relating to either executive or legislative clemency, the question arises as to whether, by the use of the word “pardoned”, the Legislature intended to limit the extinguishment of conviction to only such cases of conviction where a pardon has been granted pursuant to § 124, Supra .

§ 253 of the Mississippi Constitution of 1890 provides:

“The legislature may, by a two-thirds vote of both houses, of all members elected, restore the right of suffrage to any person disqualified by reason of crime; but the reasons therefor shall be spread upon the journals, and the vote shall be yeas and nays.”

Notwithstanding the constitutional provisions of § 124 and § 253, Supra , the Mississippi Legislature enacted § 47-7-41, Mississippi Code of 1972, Annotated, which provides:

“When a probationer shall be discharged for probation by the court of original jurisdiction, the field supervisor shall forward a written report of the order of said probationer to the division of community services, which shall present a copy of this report to the governor. The governor may, in his discretion, at any time thereafter by appropriate executive order restore any civil rights lost by the probationer by virtue of his conviction or plea of guilty in the court of original jurisdiction.”

Both constitutional provisions quoted above, one pertaining to executive clemency and the other to legislative clemency, contain specific preconditions to the granting of such clemency. Regarding a felony, as involved here, § 124, Supra , requires the precondition that “ . . . the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.”

In reviewing the above cited constitutional sections and statute, it is seen that pardon is only referred to in § 124, Supra .

“ . . . not pardoned . . . ” as specified in § 3118, Supra , infers the clemency necessary to remove conviction of embezzlement as a disqualification to be a candidate for public office in the primary election.

Notwithstanding the express conditions laid down in § 253, Supra , upon the Legislature in the restoration of the right of suffrage to any person disqualified by reason of crime, that before such restoration is permitted by the Constitution to be granted by the Mississippi Legislature with respect to each person to whom such is authorized, “ . . . a two-thirds vote of both houses, of all members elected, . . . ” is required.

The Mississippi Legislature enacted § 47-7-41, Supra , above quoted, authorizing the Governor, in his discretion, regarding a probationer upon being discharged from probation by the court of original jurisdiction and forwarding of a written report by the field supervisor of the record of said probationer to the division of community services, which division is required to present a copy of said report to the Governor, to restore by appropriate Executive Order any civil rights lost by the probationer by virtue of his conviction or plea of guilty in the court of original jurisdiction.

It is the opinion of this office that the Executive Order to which you refer and § 47-7-41, Supra , upon which it is based, must be viewed with constitutional § 253, Supra , as a backdrop. § 253, Supra , limits legislative clemency to the restoration of suffrage. It necessarily follows, therefore, that the Executive Order must be interpreted within the limits of restoration of suffrage and not in the light of any expanded view so as to include the right to hold public office or to constitute a pardon such as contemplated by constitutional § 124, Supra , or § 3118, Supra .

Moreover, § 44 of the Mississippi Constitution of 1890 provides, among other things:

“No person shall be eligible to . . . any office of profit . . . who shall have been convicted of bribery, perjury or other infamous crime; . . . ”

It necessarily follows, therefore, that it is the opinion of this office that an individual such as you describe as having been convicted of the crime of embezzlement and not having received a full pardon therefor would be prohibited by the provisions of § 3118, Supra , from having his name placed upon the ballot in the primary election as a candidate for public office.

Very truly yours,

Bill Allain, Attorney General