Mississippi Advisory Opinions July 22, 1983: AGO 000008878 (July 22, 1983)

Mississippi Attorney General Opinions

1983.

AGO 000008878.

1983-95

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Dear Mr. Burrell:

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

Your letter states:

"This letter is being written by us on behalf of the Claiborne County Board of Supervisors, whom we have the pleasure of representing.

"Three members of the Claiborne County Board of Education were subject to a recall petition, and after a hearing thereon a final judgment of the removal council was entered ordering that all three submit to a recall election (for your information a copy of one of the final judgments is enclosed).

"Claiborne County, Mississippi, was finally approved for redistricting by the U.S. Justice Department the latter part of June, 1983, which was after the recall petitions had been filed but prior to the final judgment of the removal council.

"The Board of Supervisors has requested that we submit to you the following questions:

"1. Is the recall election to be held on a county-wide basis or on a district basis which would include the three districts of the individuals sought to be recalled?

"2. If on a district by district basis, would the election be held on the new districts as ordered by the Claiborne County Board of Supervisors and as approved by the U.S. Justice Department?

"3. Could the Claiborne County Board of Supervisors in effect set the special election in conjunction with the general election in November of 1983? Reference is here made to Section 23-5-197 and 25-5-29 of the Mississippi Code.

"Any help you could give us in answering these questions would be greatly appreciated."

In response to your first and second questions, it is the opinion of this office that the recall election must be held on a district basis and that since the districts from which the three members were elected are no longer in existence, said election must be held in the districts as presently constituted pursuant to the Order of the Claiborne County Board of Supervisors and subsequent approval by the U. S. Justice Department.

However, to avoid possible future litigation, the board may wish to seek a declaratory judgment from the proper court as to the appropriate area in which the election should be held.

Mississippi Code Annotated 25-5-25 (1972) provides that notice for recall elections "shall be given, in accor- dance with the general election laws of the State of Mississippi in the matter of filling vacancies in county offices . . . .

"Section 23-5-199 which governs such notices provides that

"[t]he commissioners of election of the several counties to whom the writ of election may be directed, shall, immediately on the receipt thereof, give notice of such election by posting notices at the courthouse, and in each election district in the county, for thirty days prior to the election . . . . "

"The "writ of election" referred to in Section 23-5-199 is the order directed to the commissioners of election by the board of supervisors pursuant to Section 23-5-197 which governs how vacancies in county offices are to be filled and requires that such elections be held within sixty (60) days of said writ or order

Section 23-5-197, Mississippi Code of 1972, provides in part:

"When the unexpired term shall exceed six months, the board of supervisors of the county shall make an order, in writing, directed to the commissioners of election, commanding an election to be held in the county or proper district, on a day to be named in the order, within sixty days, to fill the vacancy. The election commissioners then shall give at least thirty days' notice of such election, . . . ."

The statute directs that the election be held within sixty (60) days from the date that the board enters its order.

If the board does not enter its order more than sixty (60) days prior to any regular election, the board could set the day for such special election on the same day as a regular election which would occur within sixty (60) days of the board order.

Very truly yours,

BILL ALLAIN, ATTORNEY GENERAL

BY Phillip C. Carter Special Assistant Attorney General

PCC:ls