Mississippi Advisory Opinions October 17, 2014: AGO 2014-00390 (October 17, 2014)

Advisory Opinion Text

AUTH: Phil Carter

RQNM: Kimberly Turner

SUBJ: Elections - Qualification of Candidates

SBCD: 71

TEXT: Kimberly P. Turner, Esquire

Assistant Secretary of State, Elections Division

Post Office Box 136

Jackson, Mississippi 39205

Re: 2015 Qualifying Deadline

Dear Ms. Turner:

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

Issue Presented

Your letter states:

Miss. Code Ann. Section 23-15-299 provides March 1 at 5:00 p.m. as the deadline by which candidates entering a race for party nominations for office for various state-wide, county district and county offices must pay the required assessment(s) to the secretary of the respective State Executive Committee. Miss. Code Ann. Section 23-15-359 likewise provides March 1 at 5:00 p.m. as the deadline by which candidates for various state-wide, county district and county offices must file their qualifying papers to either the State Board of Election Commissioner or proper county circuit clerk. The statute does not give any direction for when this deadline falls on a weekend or legal holiday.

In 2015, March 1 falls on a Sunday. As stated above, offices which accept candidate filings include the Secretary of State, County Circuit Clerks, and State Party Executive Committees. These offices do not keep regular office hours on weekends.

By a previous opinion issued to the Hon. Leslie Scott in 2003, a year in which March 1 fell on a Saturday, your office stated, rather than designating a date other than that required by the statute, our office is of the opinion that all those officials authorized to accept candidate qualification papers must open their offices and be available for that purpose on that date until 5:00 p.m., regardless of whether that office is normally open on that day of the week.

Based upon the specificity of the statutory deadline set forth in Miss. Code Ann. Sections 23-15-299 and 23-15-359 and the previous opinion, we request an official opinion regarding whether the offices of the Secretary of State, County Circuit Clerks and State Party Executive Committees must remain open from 8:00 a.m. to 5:00 p.m. on the qualifying deadline of Sunday, March 1, 2015 as well as from 8:00 a.m. to 5:00 p.m. on the preceding Saturday, February 28, 2015 to accept candidates’ filings.

Response

In response to your specific question, we find no legal requirement that the offices of Secretary of State, County Circuit Clerks and State Party Executive Committees be open on Saturday, February 28, 2015 or Sunday, March 1, 2015.

Applicable Law and Analysis

As noted in your letter, candidates for the 2015 primary and general elections are statutorily required to file the their qualifying papers and pay any required fees “...by 5:00 p.m. on March 1 of the year in which the primary election for the office is held or on the date of the qualifying provided by statute for the office, whichever is earlier...”. See Sections 23-15-297, -299 and -359. In 2015 the deadline of March 1 falls on a Sunday.

The Legislature has made no specific provisions applicable to a situation in which the statutory deadline falls on a Saturday, Sunday or legal holiday. We recommend that the Legislature address this matter early in the 2015 Session in order to provide clarity and consistency and to reduce the potential for litigation. The statutory deadline cannot be amended by way of an Attorney General’s opinion.

The Legislature has specified the days and times state and county offices are to be open.

Section 25-1-98 provides in part:

In addition to any other times required by statute, all state offices shall be open and staffed for the normal conduct of business from 8:00 a.m. until 5:00 p.m., Monday through Friday, except on legal holidays as set forth in Section 3-3-7. .... . (Emphasis added)

***

Section 25-1-99 provides in part:

The offices of all circuit and chancery clerks and sheriffs shall be open for business on all business days from 8:00 a.m. to 5:00 p.m., except that within the discretion of the board of supervisors of said county, the above county offices may be closed at 12:00 noon one (1) business day of each week, or may be closed all day Saturday of each week, or may be closed at 12:00 noon on one (1)additional business day of each week. ... .

While Section 23-15-653 requires county registrars (circuit clerks) to keep their offices open until noon on the two (2) Saturdays prior to each election for absentee balloting purposes, we find no statutory requirement that state, county or political party offices be open on weekends or holidays for the purpose of accepting candidate qualifying statements of intent, fees or petitions.

Also, while we find no Mississippi Cases that address the issue, the Tennessee State Supreme Court addressed it in Koella v. State ex rel. Moffatt, 405 S.W. 2d 184 (Tenn. 1966). In that case the Court cited 29 C.J.S. Elections 137, p. 401 which states:

‘If the last day for filing a certificate falls on a Sunday or a legal holiday, it *** must be filed the day before in order to be in time.’

Conclusion

Based on the above, we find no legal requirement that the offices of Secretary of State, County Circuit Clerks and State Party Executive Committees be open on Saturday, February 28, 2015 or Sunday, March 1, 2015. Therefore, since Sections 23-15-299 and -359 provide that no qualifying papers and applicable fees may be filed or paid prior to January 1 of the year of the elections, potential candidates will have access to those offices to file the necessary qualifying papers and pay any applicable fees during normal business hours from January 1, 2015 to 5 p.m. on February 27, 2015 unless, in the case of county circuit clerks, their offices are normally open on Saturdays pursuant to an order of their boards of supervisors as authorized by Section 25-1-99.

Our opinion to Leslie Scott, Esq. dated January 16, 2003 is hereby modified accordingly.

Sincerely,

JIM HOOD, ATTORNEY GENERAL.

Phil Carter, Special Assistant Attorney General.