Mississippi Advisory Opinions July 13, 1982: AGO 000003545 (July 13, 1982)

AGO 000003545.

Dear Mr. Smith:

Attorney General Allain has received your letter of request and has assigned it to me for research and reply. Your letter states:

"Our chancery clerk has been indicted by the October Grand Jury on two counts of embezzlement. His trial on both counts has been set for October 22nd.

"Section 25-5-1 provides that in addition to such other punishment, the Court 'shall adjudge the defendant removed from office; and the office of the defendant shall thereby become vacant.

"The Board of Supervisors, should the chancery clerk be convicted, will appoint a temporary chancery clerk, to serve until another is elected. My question is: Should the Board of Supervisors, in that event, immediately call for a special election, or should they wait to see whether there is an appeal, and if so, the results of an appeal to the Mississippi Supreme Court before calling a special election?"

The Mississippi Supreme Court in Cumbest v. Commissioners of Election, 416 So.2d 683 (1982), said:

"[W]e are convinced the Jolliff cases must be overruled on the principle of law that a person removed from office under section 175 of our Constitution and Miss. Code Ann. 25-5-1 (Supp. 1981) has no right whatsoever to such office by virtue of his election thereto.

"Section 175 states that any public officer, for willful neglect of duty or misdemeanor in office, upon conviction, '. . . shall be removed from office, and otherwise punished as may be prescribed by law.

"Miss. Code Ann. 25-5-1 (Supp. 1981) requires that the circuit court, following conviction of misconduct or misdemeanor in office, or of any felony, in addition to such other punishment as may be prescribed, shall adjudge the defendant removed from office, and the office of the defendant shall thereby become vacant.

"In Bucklew v. State, 192 So.2d 275, 276 (1966) we stated:

"'However, Constitution section 175 and the statute are self-executing. They do not contain any provisions for suspension of the removal pending appeal.'

"Additionally, these statutory and constitutional mandates do not contain any provision for reinstatement in office after removal. When this Court stated i.n Bucklew that these provisions were self-executing, this could only mean that, by virtue of the Constitution and the statute, once a public officer is convicted of the proscribed offense in a circuit court, such officer's right to the office is thereby extinguished. This is i.n accord with the majority of jurisdictions, and supported by valid societal concerns.

* * * *

"We therefore hold that any public officer removed from office following his conviction in a circuit court and pursuant to Section 175 of our Constitution and Miss. Code Ann. 25-5-1 (Supp. 1981) forfeits all of his rights to such office, regardless of what transpires on appeal. His right to such office for the remainder of the term to which he was elected is thereby extinguished, and the Jolliff cases, insofar as they hold to the contrary, are hereby overruled." (Emphasis added)

In response to your question, since the Mississippi Supreme Court has specifically said that upon conviction in a circuit court a public officer forfeits all rights to such office, regardless of what transpires on appeal, it is the opinion of this office that upon such conviction the board of supervisors must fill the vacancy in accordance with the provisions of Mississippi Code Annotated 23-5-197 (1972) (copy enclosed)

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY

Phillip C. Carter Special Assistant Attorney General

PCC:ls Enclosure