Mississippi Advisory Opinions August 25, 1993: AGO 000006949 (August 25, 1993)

AGO 000006949.

Dear Ms. Slaughter-Harvey:

Attorney General Mike Moore has received your request for an official opinion from this office, and has assigned it to me for research and reply. I will repeat each question, and respond to each one in sequence. In your letter, you state:

The purpose of this correspondence is to request an official Attorney General's opinion regarding implementation of House Bill 548 (1993 Reg. Sess.), the "Court Reform Act".

Question No. 1: Must a candidate for appellate judge be a resident of the district for the office being sought? Section 3, paragraph (1) of House Bill 548 states only that a candidate be a citizen of the state for five (5) years preceding the election.

Response: A candidate for appellate judge must be a resident of the district for the office being sought. Mississippi Code Section 25-1-59 states:

If any state, district, county, county district, or municipal officer during the term of his office shall remove out of the state, district, county, or municipality for which he was elected or appointed, such office shall thereby become vacant and the vacancy be supplied as by law directed. If any person who has been or shall be a collector or holder of public money is elected to either branch of the legislature or to any office of profit or trust, and shall not have accounted for and paid into the treasury all sums for which he may be accountable on or before the day of the meeting of the legislature to which he shall be chosen or the time for the commencement of his term of office, the seat of such person in the legislature or the office to which he was elected shall be forthwith vacated thereby.

Therefore, by implication, the candidate must be a resident of the district which he or she represents. Also, House Bill 548 specifies that judges will be elected "from" congressional districts.

Question No. 2: If in fact a candidate must be a resident of the district, the five year durational requirement suggests a related

question: Is the candidate required to be a resident (or qualified elector) of the district five years or for any other particular duration in order to qualify as a candidate?

Response: House Bill 548 states:

No person shall be eligible for the office of judge of the Court of Appeals who has not attained the age of thirty (30) years at the time of his election and who has not been a practicing attorney and citizen of the state for five (5) years immediately preceding such election.

A candidate is required to be a resident of the state for five years immediately preceding such election. We find no durational residency requirement insofar as the individual districts are concerned.

Question No.3 Does the residence requirement demand that the candidate be a qualified elector of the district for the office sought at the time of the general election, at the time of taking office, or at some other particular time?

Response: Please see our prior opinions to Mrs. Lorena Dean, dated September 20, 1979, and Union County Election Commissioners. A copy of each opinion is enclosed for your convenience. In summary, these opinions state that a candidate must meet all qualifications of the office he seeks at the time he is actually elected to office. They further state that there must be no remaining contingencies regarding residence or any other qualification at the time the appropriate election officials meet to rule on candidate qualifications.

Question No. 4: Section 3, paragraph (1) of House Bill 548 contains an apparent patent error by requiring the date of the general election for appellate court judges "...on the first Monday after the first Tuesday in November 1994..." Miss. Code Ann. Section 23-15-1015 and other statutes establish the general election date as "Tuesday after the first Monday in November..." Should the general election for appellate court judges be held on the Tuesday after the first Monday in November?

Response: House Bill 548, which has been precleared by the Department of Justice, states that:

An election shall be held on the first Monday after the first Tuesday in November 1994...

We agree that this was an obvious oversight; however, until the Legislature changes this statute, the date of the election will be the first Monday after the first Tuesday in November 1994.

Question No. 5: House Bill 548 does not establish the fee required to be paid by candidates for party nomination to the office of appellate court judge. Miss. Code Ann. Section 23-15-297 establishes the fees for all other offices, and Section 23-15-297 (b) would seem to suggest the appropriate fee to be $200.00. Should candidates entering the race for party nominations for appellate court judge pay a $200 fee to the secretary of the appropriate state executive committee?

Response: Since the districts for appellate court judges are the same as that for U. S. Representatives and the fee for those offices is $200, we are of the opinion $200 is the appropriate fee.

If I may be of further assistance, please do not hesitate to contact me.

Sincerely yours,

MIKE MOORE, ATTORNEY GENERAL

BY: Phil Carter Assistant Attorney General

PC:cw Enclosures