Mississippi Advisory Opinions December 31, 1991: AGO 000005546 (December 31, 1991)

AGO 000005546.

Dear Mr. McCollom:

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

"As clerk for the Board of Supervisors of Alcorn County, Mississippi, I have a question which needs an answer prior to the new year. The facts are as follows.

In the recent elections in Alcorn County, D.C. 'Duke' Mathis and Jimmy Travis Drewery ran in the second primary for the democratic nomination for supervisor of the fifth district. Drewery received 1,620 votes and Mathis 1,279 votes. Drewery was certified on the day following the second primary as the democratic nominee for the position of fifth district supervisor and his name was placed on the ballot for the general election scheduled for November 5, 1991, opposite the republican nominee for that position.

On or about October 28, 1991, D.C. 'Duke' Mathis filed a contest of the democratic second primary and a hearing was scheduled before the executive committee of the democratic party of Alcorn county on November 4, 1991. At the conclusion of that hearing, the democratic executive committee declared Mathis to be the nominee of the democratic party for the position of fifth district supervisor. Drewery's name remained on the ballot, however, as the election was scheduled for November 5 and the ruling of the democratic executive committee either occurred shortly prior to midnight on November 4 or shortly after midnight (November 5, 1991). Calls were made to the Attorney General's Office and to the Office of the Secretary of State of the State of Mississippi and officials were advised to leave Drewery's name on the ballot. On November 5, 1991, Drewery filed a Petition for Judicial Review with the Circuit Court of Alcorn County as provided by statute. Drewery was the overwhelming victor in the general election, obtaining in excess of 1,100 votes compared to less than 500 received by the republican nominee.

Since Drewery received the most votes in the general election, the republican nominee (Martin) has filed an election contest in the Circuit Court of Alcorn County.

It is not known whether one or both of the contests that have been filed will be heard by the court prior to January 1, 1992.

We need to know who should be sworn in as supervisor of the fifth district on January 6, 1992, if anyone. If no one is to be sworn in, then we want to be sure that the proper steps are taken by the Board of Supervisors, at a minimum, to provide for a temporary supervisor of the fifth district of Alcorn County. If that is the procedure to be followed, we would need to know for what period of time this individual would serve. Would this individual serve until the Circuit Court makes a ruling on the election contests, etc.

We shall appreciate your guidance on this matter and would, of course, appreciate your thoughts prior to the new year. Obviously, the sooner this information can be received the better able the Board of Supervisors will be to properly handle it."

As a general rule, the certification by a county election commission that an individual has been elected to a particular public office carries with it the right of that individual to assume that office upon the commencement of the term, provided, of course, that the necessary prerequisites (bond, oath, etc.) have been complied with.

At 26 Am Jur 2d Elections Section 305, we find the following:

"A certificate of election is not title to a public office, but a mere muniment of title. It is only prima facie evidence of the holder's right to the office.

Unless so provided by statute, it is not conclusive of an election as against direct attack, yet it entitles the recipient to take the office as against an incumbent whose term has expired, notwithstanding the pendency of a proceeding to contest the election instituted by the incumbent or another. He has a right to exercise the functions of the office until the true result of the election is determined in the manner authorized by law, or until the certificate is set aside in an appropriate proceeding. In other words, the certificate confers a temporary right subject to destruction by an adverse decision of a tribunal having jurisdiction in the matter.

Although a certificate of election may be superseded by a decree in proceedings to contest the election, it is conclusive as to the result of the election until set aside or vacated in some manner authorized by law, and is not subject to collateral attack. . . ."

In Crowe v. Lucas, 595 F.2d 985 (1979), the U.S. Court of Appeals, Fifth Circuit, in reviewing a municipal election in Mississippi said:

".... Defendants argue that the person who defeated Crowe, Harold Ward, was entitled to retain his seat after the election results were voided since he had been issued a certificate of election. This argument is without merit. A certificate of election merely creates a presumption that the person named in it legally occupies the specific office. The presumption is rebuttable, however, and, in this case, Crowe presented sufficient evidence to the Circuit Court to overcome that presumption."

It is clear from the above that certification of an election by an election commission creates a rebuttable presumption that the individual(s) certified as having been elected to a particular office has the right to assume the office and to serve unless and until the presumption of such entitlement has been rebutted in an election contest as provided by law.

Therefore, it is the opinion of this office that, in the absence of a court judgment or order to the contrary, the candidate certified by the Alcorn County Election Commission is entitled to be sworn in and assume the duties of the office in question as of January 6, 1992, provided, of course, that the proper bond has been acquired and all other prerequisites have been met.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Special Assistant Attorney General PC:mfd