Mississippi Advisory Opinions August 29, 1983: 19830829 (August 29, 1983)

Advisory Opinion Text

Honorable Thomas C. “Cleat” Calvery

Chairman

Alcorn County Election Commission

Post Office Box 430

Corinth, Mississippi 38834

Dear Mr. Calvery:

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

You advise that the individual to whom you refer was sentenced in the Circuit Court of Alcorn County, Mississippi upon a plea of guilty to the crime of receiving stolen property to serve three (3) years in the State Penitentiary. The three (3) year pentitentary sentence was suspended and the individual was required to serve ninety (90) days in the county jail and placed on probation. The jail sentence was served and the probation satisfactorily completed.

You further advise that the Mississippi Legislature by House Bill No. 1186 (Chapter No. 914), Laws of 1983, restored the right of suffrage to the named individual.

Additionally, you advise that Governor William Winter by Executive Order No. 473, dated June 21, 1983, ordered ”. . . that any civil rights lost . . .” be restored to the said person.

In this connection, you present several questions which are set forth below followed by the response thereto.

(1) Whether said Executive Order is a pardon?

Pardons by the Governor are controlled by § 124 of the Mississippi Constitution of 1890, which 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.” You do not provide any facts indicating that the above and foregoing constitutional requirements have been met as a precondition to the granting of a pardon.

The Executive Order to which you refer, no doubt, is based upon the provision of § 47-7-41, Mississippi Code of 1972, Annotated, being a statute authorizing the Governor, in his discretion, to restore any civil rights lost by virtue of the plea of guilty. This statute, however, being a statute and not a constitutional provision, must be viewed in the light of the constitutional provision, § 124, Supra, as to whether any Executive Order issued thereon would constitute a pardon. The essential facts necessary to the granting of a pardon being absent, it is the opinion of this office that the Executive Order referred to does not constitute a pardon within the meaning of § 124, Supra.

(2) “Does this Executive Order entitle Mr. Brooks to be qualified as a candidate?”

The copy of Executive Order No. 473 to which you refer has been reviewed and it is the opinion of this office that said Executive Order must be viewed with Constitutional § 253, Ibid, 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 such as would include the right to hold public office or to constitute a pardon such as contemplated by Constitutional § 124, 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 . . . infamous crime; . . .”

§ 1-3-19, Mississippi Code of 1972, Annotated, defines “infamous crime” as an offense punishable by confinement in the State Penitentiary. It necessarily follows, therefore, that it is the opinion of this office that conviction for having received stolen property on a plea of guilty and imposition of sentence to the State Penitentiary for three (3) years, although sentence was suspended, constitutes an infamous crime within the meaning of Constitutional § 44, Supra, and § 1-3-19, Supra.

Therefore, it is the opinion of this office that the Executive Order No. 473, not being a pardon, the disqualification mandated by Constitutional § 44, Supra, is not removed.

(3) “Can the qualification deadline for any candidate be extended past the June 3rd deadline?”

Chapter 567 of the Laws of 1962 requires all candidates desiring to run in a party primary to pay the qualifying fee by five o'clock p.m. sixty (60) days before the date of the primary election to the executive committee of the party in whose primary the candidate desires to run. I am aware of no authority by which said deadline for qualifying as a candidate may be extended.

(4) “Would we be violating the law if we fail to disqualify him in the General Election?”

In the case of Poe v. Forrest County Election Commission (1964) 249 Miss. 757, 163 So.2d 656, the first question determined by the Mississippi Supreme Court “ . . . is whether or not the Commission (County Election Commission) has the duty and discretion to determine the qualifications of persons certified to the Commission as persons nominated by a political party as candidates for public office.”

The Court held in the Poe Case “ . . . that the Commission is a quasi judicial administrative agent of the State, and as such, has authority to determine whether or not a person is qualified as a candidate for public office, . . . ”

Very truly yours,

Bill Allain Attorney General