Mississippi Advisory Opinions June 26, 2014: AGO 2014-00240 (June 26, 2014)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Rep. Rita Martinson

SUBJ: Legislative

SBCD:104

TEXT: The Honorable Rita Martinson

Mississippi House of Representatives

1472 Highway 51

Madison, Mississippi 39110

Re: Service on Political Party Executive Committee by Convicted Felon

Dear Representative Martinson:

Attorney General Jim Hood received your letter of request and assigned it to me for research and reply.

Facts

You cite a Consent Decree approved by the United States District Court for the Southern District of Mississippi (Eastern Division) in Civil Action No. 4:05cv 33TSL-AG1 wherein certain restrictions were placed on the chairman of the Noxubee County Democratic Executive Committee, the Noxubee County Democratic Executive Committee and the Noxubee County Circuit Clerk all who were serving in those capacities at the time of the Consent Decree. The Consent Decree remained in effect through December 31, 2012.

We are aware of the decision in U.S. v. Brown, 2007 WL 2461965 (S.D. Miss.) in which the Court placed specific restrictions on the chairman of the Noxubee County Democratic Executive Committee serving at the time. That decision was affirmed by the Fifth Circuit Court of Appeals at 561 F.3d 420 (2009). The order imposing such remedial relief remained in effect through November 20, 2011.

As pointed out in your letter, we cannot opine on potential violations of a federal consent decree. Any violation of the terms of the consent decree or the order imposing remedial relief must necessarily be determined by the Court.

You also cite Mississippi Code Section 25-1-115 (Supp. 2013) as amended by House Bill 874, 2014 Regular Session, effective July 1, 2014, and Section 23-15-1054(3) (Supp. 2013) that impose certain restrictions on who may serve on party executive committees.

We are also aware that Ike Brown, one of the defendants in the above cited cases, and as we understand, the subject of your inquiry, has a felony conviction of forgery in state court. We have obtained documents that show that while Mr. Brown had his civil rights restored by the issuance of an executive order by then Governor Ray Mabus, he never received a full pardon that is required for a convicted felon to have his eligibility to hold a position of trust restored.

Issue Presented

You ask "what are the legal implications for a convicted felon wishing to serve or one who is currently serving on a municipal, county or state executive committee after the amendments to Section 25-1-115, Mississippi Code of 1972, made by House Bill 874, 2014 Regular Session, become effective on July 1, 2014?"

Response

Without regard to the legal implications of the amendment to Section 25-1-115 in House Bill 874, we are of the opinion that one who has a felony conviction of forgery in a court of the State of Mississippi and has not received a full pardon is not eligible to serve on a political party executive committee.

Applicable Law and Discussion

Section 23-15-1054(3) specifically prohibits a convicted felon from serving on a county party executive committee.

As to serving on party executive committees generally, we have previously opined that since such committees are statutorily created, they are generally viewed as quasi-governmental entities and since they are statutorily required to conduct primary elections in accordance with state law, membership on such committees constitutes serving in a position of public trust and that potential candidates for membership on such committees are subject to the provisions of Section 44 of the Mississippi Constitution. MS AG Op., Jackson (May 12, 1993); MS AG Op. James (October 18, 2002).

Section 44, Mississippi Constitution of 1890 provides in part:

(1) No person shall be eligible to a seat in either House of the Legislature, or to any office of profit or trust, who shall have been convicted of bribery, perjury, or other infamous crime; ... .

Section 1-3-19 defines the term "infamous crime" as "offenses punished with death or confinement in the penitentiary."

Section 99-19-35 provides:

A person convicted of bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy, shall not be allowed to practice medicine or dentistry, or be appointed to hold or perform the duties of any office of profit, trust, or honor, unless after full pardon for the same. (Emphasis added)

Having previously opined that potential candidates for membership on party executive committees are subject to the provisions of Section 44 of the Mississippi Constitution, it follows and is our opinion that such candidates are also subject to the provisions of Section 99-19-35.

Conclusion

Since the subject of your inquiry has been convicted of a felony in a court of the State of Mississippi and has not received a full pardon, he is not eligible to be a member of a political party executive committee.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.