Mississippi Advisory Opinions September 08, 1994: AGO 000009245 (September 8, 1994)

AGO 000009245.

Dear Mr. Blackmon:

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

"I am writing to request your opinion as to the method of selecting district attorneys for the Twenty-first and Twenty-second Circuit Court Districts in the event that Chapter 564, HB 1809, Laws of 1994 is precleared under the Voting Rights Act by the U.S. Department of Justice.

Section 174, Mississippi Constitution of 1890, states that 'A district attorney for each circuit court shall be selected in the manner provided by law, whose term of office shall be four years, whose duties shall be prescribed by law, and whose compensation shall be a fixed salary.' It appears to be clear that the two new circuit court districts will have district attorneys under the provisions of Section 174, Mississippi Constitution of 1890.

Section 23-15-843, Mississippi Code of 1972, provides the procedure for special elections to fill vacancies in the office of district attorney. It appears from this section that a vacancy would be created for each new circuit court district in the event Chapter 564, HB 1809, Laws of 1994, is precleared. At this point, I would assume that the Governor would be required to call a special election to be held at the next General Election since the vacancies will likely occur close enough to the November General election to preclude appointment.

I would appreciate an opinion from you as to how this situation would be handled in the event that Chapter 564, HB 1809, Laws of 1994, is precleared."

We preface our response by stating that it is our understanding that the U.S. Department of Justice has sent a letter dated September 6, 1994, interposing no objection to the implementation of HB 1809.

Mississippi Code Annotated Section 23-15-843 (Revised 1990) provides:

"In case of death, resignation or vacancy from any cause in the office of district attorney, the unexpired term of which shall exceed six (6) months, the Governor shall within ten (10) days after happening of such vacancy issue his proclamation calling an election to fill a vacancy in the office of district attorney to be held on the next regular special election day in the district wherein such vacancy shall have occurred unless the vacancy shall occur before ninety (90) days prior to the general election in a year in which an election would normally be held for that office as provided by law, in which case the person so appointed shall serve the unexpired portion of the term. Candidates in such a special election shall qualify in the same manner and shall be subject to the same time limitations as set forth in Section 23-15-839. Pending the holding of such special election, the Governor shall make an emergency appointment to fill the vacancy until the same shall be filled by election as aforesaid." (emphasis ours)

In regard to the qualifying deadline for a special election held pursuant to Section 23-15-843, Section 23-15-839 provides:

"The election commissioners shall require each candidate to qualify at least sixty (60) days before the date of the election, ...."

In response to your inquiry, it is our opinion that a special election to fill the vacancies in the newly created circuit court districts are required to be held in accordance with the above quoted statutes.

The sixty (60) day qualifying deadline prior to the next special election day (November 8, 1994) is Friday September 9, 1994. The Governor, by statute, has the discretion to take up to ten (10) days to issue his proclamation. If the Governor does not issue his proclamation prior to the September 9, 1994 deadline, it is the opinion of this office that, absent an order from a court of competent jurisdiction establishing a new deadline, the election to fill the vacancies in question could not be held. If this occurs, the emergency appointees appointed by the Governor pursuant to Section 23-15-843 would continue to serve. Furthermore, since 1995 is the regular election year for the election of district attorneys and Section 23-15-839 provides that when the next regular special election day at which vacancies may be filled occurs in a year in which an election would normally be held for that office, the person so appointed shall serve the unexpired portion of the term, it is our opinion that the persons appointed by the Governor would serve the remainder of the term or until January, 1996.

Sincerely,

MIKE MOORE ATTORNEY GENERAL

By:

Phil Carter Assistant Attorney General

PC:sm