Determining Candidate Determining Candidate Qualifications for OfficeQualifications for Office

20132013Municipal ElectionsMunicipal Elections

Certification TrainingCertification TrainingPresented by: Reese Partridge/Liz BolinPresented by: Reese Partridge/Liz Bolin

Special Assistant Attorneys GeneralSpecial Assistant Attorneys GeneralMississippi Attorney General’s OfficeMississippi Attorney General’s Office

Jim Hood, Attorney Jim Hood, Attorney GeneralGeneral

Candidate QualifyingCandidate Qualifying Party candidates qualify by filing a small Party candidates qualify by filing a small

statutory fee and a statement of intent with the statutory fee and a statement of intent with the municipal clerkmunicipal clerk’’s office by March 8 at 5pm.s office by March 8 at 5pm.

The fees and statements of intent are forwarded The fees and statements of intent are forwarded promptly to the secretary of the municipal party promptly to the secretary of the municipal party executive committee. (23-15-309)executive committee. (23-15-309)

Independent candidates qualify by filing a Independent candidates qualify by filing a petition with the municipal clerkpetition with the municipal clerk’’s office by s office by March 8 at 5pm. Municipal clerk notifies March 8 at 5pm. Municipal clerk notifies election commission of all persons filing election commission of all persons filing petitions within 2 business days. -361(3)petitions within 2 business days. -361(3)

Additional Candidate Additional Candidate Requirements Requirements

While not related to qualifications to While not related to qualifications to hold office, there are other hold office, there are other requirements candidates must fulfill:requirements candidates must fulfill:

File Statement of Economic Interest File Statement of Economic Interest with the Mississippi Ethics Commission with the Mississippi Ethics Commission within 15 days of qualifying.within 15 days of qualifying.

File periodic and pre-election File periodic and pre-election Campaign Finance Disclosure reports Campaign Finance Disclosure reports with the municipal clerkwith the municipal clerk’’s office, s office, including termination report.including termination report.

Ruling on Candidate Ruling on Candidate Qualifications-Party CandidatesQualifications-Party Candidates

Party executive committees rule on each Party executive committees rule on each party candidateparty candidate’’s legal qualifications. s legal qualifications. The names of candidates who are not The names of candidates who are not qualified electors, who do not meet the qualified electors, who do not meet the other qualifications for the office, or other qualifications for the office, or have been convicted of disqualifying have been convicted of disqualifying crimes, cannot be placed on the ballot.crimes, cannot be placed on the ballot.

Before being disqualified, a candidate Before being disqualified, a candidate must be given notice and the must be given notice and the opportunity for a hearing.opportunity for a hearing.

23-15-309: Party Executive Committee 23-15-309: Party Executive Committee Duties regarding Candidate QualificationsDuties regarding Candidate Qualifications

(4) Upon receipt of the above information, the proper municipal executive (4) Upon receipt of the above information, the proper municipal executive committee shall then determine whether each candidate is a qualified committee shall then determine whether each candidate is a qualified elector of the municipality, and of the ward if the office sought is a ward elector of the municipality, and of the ward if the office sought is a ward office, shall determine whether each candidate either meets all other office, shall determine whether each candidate either meets all other qualifications to hold the office he is seeking or presents absolute proof that qualifications to hold the office he is seeking or presents absolute proof that he will, subject to no contingencies, meet all qualifications on or before the he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he could be elected to date of the general or special election at which he could be elected to office. The executive committee shall determine whether the candidate has office. The executive committee shall determine whether the candidate has taken the steps necessary to qualify for more than one (1) office at the taken the steps necessary to qualify for more than one (1) office at the election. The committee also shall determine whether any candidate has election. The committee also shall determine whether any candidate has been convicted of any felony in a court of this state, or has been convicted been convicted of any felony in a court of this state, or has been convicted on or after December 8, 1992, of any offense in another state which is a on or after December 8, 1992, of any offense in another state which is a felony under the laws of this state, or has been convicted of any felony in a felony under the laws of this state, or has been convicted of any felony in a federal court on or after December 8, 1992. Excepted from the above are federal court on or after December 8, 1992. Excepted from the above are convictions of manslaughter and violations of the United States Internal convictions of manslaughter and violations of the United States Internal Revenue Code or any violations of the tax laws of this state unless such Revenue Code or any violations of the tax laws of this state unless such offense also involved misuse or abuse of his office or money coming into his offense also involved misuse or abuse of his office or money coming into his hands by virtue of his office. If the proper municipal executive committee hands by virtue of his office. If the proper municipal executive committee finds that a candidate either (a) does not meet all qualifications to hold the finds that a candidate either (a) does not meet all qualifications to hold the office he seeks and fails to provide absolute proof, subject to no office he seeks and fails to provide absolute proof, subject to no contingencies, that he will meet the qualifications on or before the date of contingencies, that he will meet the qualifications on or before the date of the general or special election at which he could be elected, or (b) has been the general or special election at which he could be elected, or (b) has been convicted of a felony as described in this subsection and not pardoned, then convicted of a felony as described in this subsection and not pardoned, then the name of such candidate shall not be placed upon the ballot. If the the name of such candidate shall not be placed upon the ballot. If the executive committee determines that the candidate has taken the steps executive committee determines that the candidate has taken the steps necessary to qualify for more than one (1) office at the election, the action necessary to qualify for more than one (1) office at the election, the action required by Section 23-15-905, shall be taken.required by Section 23-15-905, shall be taken.

23-15-309(4) sentence 123-15-309(4) sentence 1 the proper the proper municipal executive municipal executive

committee committee shallshall then determine then determine whether each candidate is a qualified whether each candidate is a qualified elector of the municipalityelector of the municipality, , andand of the of the ward if the office sought is a ward ward if the office sought is a ward officeoffice, , shall determine whether each shall determine whether each candidate either meets all other candidate either meets all other qualifications to hold the office he is qualifications to hold the office he is seekingseeking or presents absolute proof that or presents absolute proof that he will, subject to no contingencies, he will, subject to no contingencies, meet all qualifications meet all qualifications on or before the on or before the date of the general or special election date of the general or special election at which he could be elected to office.at which he could be elected to office.

23-15-309(4) sentences 3 23-15-309(4) sentences 3 and 4and 4 The committee also shall determine The committee also shall determine

whether any candidate has been whether any candidate has been convictedconvicted of any of any felony in a court of this statefelony in a court of this state, , oror has has been convicted on or after December 8, been convicted on or after December 8, 1992, of any offense in another state which 1992, of any offense in another state which is a felony under the laws of this stateis a felony under the laws of this state, , oror has been convicted of any felony in a has been convicted of any felony in a federal court on or after December 8, 1992.federal court on or after December 8, 1992. ExceptedExcepted from the above are convictions of from the above are convictions of manslaughtermanslaughter and and violations of the United violations of the United States Internal Revenue CodeStates Internal Revenue Code oror any any violations of the tax laws of this stateviolations of the tax laws of this state unlessunless such offense also involved misuse or abuse such offense also involved misuse or abuse of his office or money coming into his hands of his office or money coming into his hands by virtue of his officeby virtue of his office..

23-15-309(4) sentence 523-15-309(4) sentence 5 If the proper If the proper municipal executive municipal executive

committee finds that a candidate committee finds that a candidate eithereither (a) (a) does not meet all qualifications to does not meet all qualifications to hold the office he seeks hold the office he seeks andand fails to fails to provide absolute proof, subject to no provide absolute proof, subject to no contingencies, that he will meet the contingencies, that he will meet the qualifications on or before the date of qualifications on or before the date of the general or special election at which the general or special election at which he could be electedhe could be elected, , oror (b) (b) has been has been convicted of a felony as described in convicted of a felony as described in this subsection and not pardonedthis subsection and not pardoned, , then then the name of such candidate shall the name of such candidate shall not be placed upon the ballotnot be placed upon the ballot..

Qualifying for more than Qualifying for more than one office.one office.

23-15-905 and 23-15-309 provide that the 23-15-905 and 23-15-309 provide that the executive committee shall determine if a executive committee shall determine if a candidate qualified for more than one candidate qualified for more than one office for an election held on the same office for an election held on the same day.day.

If so, the executive committee shall If so, the executive committee shall determine which office the candidate determine which office the candidate lastlast qualified for and the candidate shall be qualified for and the candidate shall be considered as qualifying for that office considered as qualifying for that office only.only.

Ruling on Candidate Qualifications-Ruling on Candidate Qualifications-General Election CandidatesGeneral Election Candidates

Election Commissions rule on each Election Commissions rule on each independent candidateindependent candidate’’s legal qualifications, s legal qualifications, AND rule on party nominees before their AND rule on party nominees before their names are placed on the general election names are placed on the general election ballot. The names of candidates who are not ballot. The names of candidates who are not qualified electors, who do not meet the other qualified electors, who do not meet the other qualifications for the office, or have been qualifications for the office, or have been convicted of convicted of disqualifyingdisqualifying crimes, cannot be crimes, cannot be placed on the ballot. placed on the ballot.

Before being disqualified, a candidate must be Before being disqualified, a candidate must be given notice and the opportunity for a hearing.given notice and the opportunity for a hearing.

23-15-361: Election Commission Duties 23-15-361: Election Commission Duties regarding Candidate Qualificationsregarding Candidate Qualifications

(5) The municipal commission shall determine whether each party (5) The municipal commission shall determine whether each party candidate in the municipal general election is a qualified elector of candidate in the municipal general election is a qualified elector of the municipality, and of the ward if the office sought is a ward office the municipality, and of the ward if the office sought is a ward office and shall determine whether each candidate either meets all other and shall determine whether each candidate either meets all other qualifications to hold the office he is seeking or presents absolute qualifications to hold the office he is seeking or presents absolute proof that he will, subject to no contingencies, meet all qualifications proof that he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he on or before the date of the general or special election at which he could be elected to office. The municipal election commission also could be elected to office. The municipal election commission also shall determine whether any candidate has been convicted of any shall determine whether any candidate has been convicted of any felony in a court of this state, or has been convicted on or after felony in a court of this state, or has been convicted on or after December 8, 1992, of any offense in another state which is a felony December 8, 1992, of any offense in another state which is a felony under the laws of this state, or has been convicted of any felony in a under the laws of this state, or has been convicted of any felony in a federal court on or after December 8, 1992. Excepted from the above federal court on or after December 8, 1992. Excepted from the above are convictions of manslaughter and violations of the United States are convictions of manslaughter and violations of the United States Internal Revenue Code or any violations of the tax laws of this state Internal Revenue Code or any violations of the tax laws of this state unless such offense also involved misuse or abuse of his office or unless such offense also involved misuse or abuse of his office or money coming into his hands by virtue of his office. If the municipal money coming into his hands by virtue of his office. If the municipal election commission finds that a candidate either (a) is not a qualified election commission finds that a candidate either (a) is not a qualified elector, (b) does not meet all qualifications to hold the office he seeks elector, (b) does not meet all qualifications to hold the office he seeks and fails to provide absolute proof, subject to no contingencies, that and fails to provide absolute proof, subject to no contingencies, that he will meet the qualifications on or before the date of the general or he will meet the qualifications on or before the date of the general or special election at which he could be elected, or (c) has been special election at which he could be elected, or (c) has been convicted of a felony as described above and not pardoned, then the convicted of a felony as described above and not pardoned, then the name of the candidate shall not be placed upon the ballot.name of the candidate shall not be placed upon the ballot.

23-15-361(5) sentence 123-15-361(5) sentence 1 The The municipal commission municipal commission shall determine shall determine

whether each party candidate in the whether each party candidate in the municipal general municipal general election is a qualified election is a qualified elector of the municipalityelector of the municipality, , and and of the ward of the ward if the office sought is a ward office if the office sought is a ward office andand shall determine whether each candidate shall determine whether each candidate either meets all other qualifications to hold either meets all other qualifications to hold the office he is seeking the office he is seeking oror presents presents absolute proof that he will, subject to absolute proof that he will, subject to no contingencies, meet all no contingencies, meet all qualifications on or before the date of qualifications on or before the date of the general or special election at which the general or special election at which he could be elected to officehe could be elected to office. .

23-15-361(5) sentences 2 23-15-361(5) sentences 2 & 3& 3

The municipal election commission also The municipal election commission also shall determine whether any candidate has shall determine whether any candidate has been been convictedconvicted of of any felony in a court of any felony in a court of this statethis state, , oror has been convicted on or after has been convicted on or after December 8, 1992, of any offense in another December 8, 1992, of any offense in another state which is a felony under the laws of this state which is a felony under the laws of this statestate, , oror has been convicted of any felony in has been convicted of any felony in a federal court on or after December 8, a federal court on or after December 8, 19921992. . ExceptedExcepted from the above are from the above are convictions of convictions of manslaughtermanslaughter and and violations violations of the United States Internal Revenue Code of the United States Internal Revenue Code or any or any violations of the tax laws of this state violations of the tax laws of this state unlessunless such offense such offense also involved misuse or also involved misuse or abuse of his office or money coming into his abuse of his office or money coming into his hands by virtue of his office.hands by virtue of his office.

23-15-361(5) sentence 423-15-361(5) sentence 4 If the municipal election commission

finds that a candidate either (a) is not a qualified elector, (b) does not meet all qualifications to hold the office he seeks and fails to provide absolute proof, subject to no contingencies, that he will meet the qualifications on or before the date of the general or special election at which he could be elected, or (c) has been convicted of a felony as described above and not pardoned, then the name of the candidate shall not be placed upon the ballot.

Qualifying for more than Qualifying for more than one office.one office.

23-15-905 provides that the election 23-15-905 provides that the election commission shall determine if a commission shall determine if a candidate qualified for more than one candidate qualified for more than one office for an election held on the same office for an election held on the same day.day.

If so, the election commission shall If so, the election commission shall determine which office the candidate last determine which office the candidate last qualified for and the candidate shall be qualified for and the candidate shall be considered as qualifying for that office considered as qualifying for that office only.only.

Other qualifications you Other qualifications you may need to determine.may need to determine.

Refer to the Secretary of State’s Qualifying Refer to the Secretary of State’s Qualifying Guide for qualifications of each office and Guide for qualifications of each office and the corresponding citations to state law. the corresponding citations to state law.

Durational residency requirements for Durational residency requirements for some forms of municipal government (but some forms of municipal government (but NOT in code charter mayor-alderman form NOT in code charter mayor-alderman form of government).of government).

Special charter municipalities may have Special charter municipalities may have additional candidate qualification additional candidate qualification requirements.requirements.

Qualifications of Candidates: When Qualifications of Candidates: When they must be met.they must be met.

On the date the Executive Committees On the date the Executive Committees and Election Commissions meet to rule and Election Commissions meet to rule on candidate qualifications, the candidate on candidate qualifications, the candidate must meet must meet all qualifications to hold the all qualifications to hold the office he is seeking or must present office he is seeking or must present absolute proof that he will, subject to no absolute proof that he will, subject to no contingencies, meet all qualifications on contingencies, meet all qualifications on or before the date of the general of or before the date of the general of special election at which he could be special election at which he could be elected to office.elected to office.

Disqualifying crimesDisqualifying crimes

The candidate must not have been The candidate must not have been convicted in a Mississippi state court convicted in a Mississippi state court of any felony; or convicted in a of any felony; or convicted in a federal court of a felony or convicted federal court of a felony or convicted in the court of any other state of any in the court of any other state of any felony that is a felony in Mississippi felony that is a felony in Mississippi (other than manslaughter or IRS or (other than manslaughter or IRS or other tax law violations, unless such other tax law violations, unless such offense also involved misuse or abuse offense also involved misuse or abuse of his/her office or many coming into of his/her office or many coming into his/her hands by virtue of his/her his/her hands by virtue of his/her office) after December 8, 1992. office) after December 8, 1992. (§44, (§44, Miss. Constitution of 1890)Miss. Constitution of 1890)

NonadjudicationsNonadjudicationsMS AG Op., Lagasse (Sept 27, 2002) & MS AG Op., MS AG Op., Lagasse (Sept 27, 2002) & MS AG Op.,

Watts (Sept 24, 1999)Watts (Sept 24, 1999)

Miss. Code Ann. Section 99-15-26 is the Miss. Code Ann. Section 99-15-26 is the main nonadjudication statute.main nonadjudication statute.

Pursuant to that statute’s provisions Pursuant to that statute’s provisions the acceptance of the plea of guilty is the acceptance of the plea of guilty is being withheld pending the successful being withheld pending the successful completion of the conditions set forth in completion of the conditions set forth in the Order of the Order of NonadjudicationNonadjudication. .

Therefore, there has been no conviction Therefore, there has been no conviction or acceptance of a guilty plea. If the or acceptance of a guilty plea. If the candidate meets all other requirements candidate meets all other requirements to hold office, his name is eligible to be to hold office, his name is eligible to be placed on the ballot. placed on the ballot.

Expunged convictionsExpunged convictionsMS AG Op., Dees (June 2, 1997)MS AG Op., Dees (June 2, 1997)

Also called expungement and expunction.Also called expungement and expunction. Once expunged, convictions are not public Once expunged, convictions are not public

record.record. Miss. Code Ann. Section 41-29-150 (1972) is one Miss. Code Ann. Section 41-29-150 (1972) is one

of the statutory provisions for expungement.of the statutory provisions for expungement. A court order A court order expungingexpunging a criminal record a criminal record

made pursuant to Section 41-29-150 would made pursuant to Section 41-29-150 would restore such individual to the status that he restore such individual to the status that he occupied prior to such conviction, and would not occupied prior to such conviction, and would not act as a disqualification to running for public act as a disqualification to running for public office.office.

Qualifications: ResidencyQualifications: Residency The candidate must be a qualified The candidate must be a qualified

voter and resident of the county, and voter and resident of the county, and if the office is elected from a county if the office is elected from a county district, must be a resident of the district, must be a resident of the county district. county district.

Determination of residency is a Determination of residency is a factual determination. There are factual determination. There are some guidelines in court and AG some guidelines in court and AG opinions, but it will always be a opinions, but it will always be a question of fact decided by the question of fact decided by the executive committee in primaries and executive committee in primaries and election commissions in general election commissions in general elections.elections.

Candidate Residency a Question Candidate Residency a Question of Factof Fact

(Davies, 2-23-01)

Residency of a potential candidate for public office is a question of fact that must be determined by the appropriate election commission and, in case of a primary, the appropriate party executive committee.

Supreme Court on ResidencySupreme Court on Residency(Norwood, 9-5-97)

The Mississippi Supreme Court (in Hinds Co. Elec. Comm. vv. Brinston(671 So.2d 667)) has held that the county of domicile requires an actual residence be voluntarily established with a bona fide intention of remaining in that county for an indefinite period of time. If the election commission finds that an individual satisfies the residency requirements as a matter of fact, the commission must include that name upon the ballot. The election commission is authorized to inquire into the residency of a candidate prior to the printing of the ballots. If a candidate does not satisfy the residency requirement, then the burden shifts to the candidate to negate the finding of the commission.

NOTE: Notice and opportunity for a hearing NOTE: Notice and opportunity for a hearing required.required.

Homestead Exemption in Homestead Exemption in Residency IssuesResidency Issues

The The BrinstonBrinston case from the Miss. case from the Miss. Supreme Court also establishes how Supreme Court also establishes how homestead exemption is to be weighed in homestead exemption is to be weighed in determining residency:determining residency:

““There is a strong but rebuttable There is a strong but rebuttable presumption of residency in the county presumption of residency in the county where the homestead exemption is filed. where the homestead exemption is filed. The location of the homestead exemption The location of the homestead exemption creates this strong presumption because creates this strong presumption because of the benefit in the form of tax relief one of the benefit in the form of tax relief one receives by filing.”receives by filing.”

Residency and Abandonment of Old Residency and Abandonment of Old ResidenceResidence

Residency and domicile are synonymous. Residency and domicile are synonymous. Domicile, once established, continues Domicile, once established, continues until removal to another locality with until removal to another locality with intent to remain there and abandonment intent to remain there and abandonment of the old domicile without intent to of the old domicile without intent to return. MS AG Op., Conaway return. MS AG Op., Conaway (September 20, 1989) quoting from:(September 20, 1989) quoting from:

Hubbard v. McKey, 193 So.2d 129 (1966)..

If statements of intent If statements of intent conflict with the facts.conflict with the facts.

In determining domicile, one's In determining domicile, one's statements of intent are entitled to statements of intent are entitled to little weight when in conflict with little weight when in conflict with the facts.the facts.

Cheek v. Fortune, 341 F.Supp 729 Cheek v. Fortune, 341 F.Supp 729 (N.D.Miss., 1972)(N.D.Miss., 1972)

Long continued residence Long continued residence as a factor in the absence of as a factor in the absence of

avowed intention.avowed intention. Long continued residence is Long continued residence is

controlling and conclusive in controlling and conclusive in determining the question of domicile determining the question of domicile in the absence of any avowed in the absence of any avowed intention, and of acts which indicate intention, and of acts which indicate a contrary intention.a contrary intention.

Stubbs v. Stubbs, 211 So.2d 821 Stubbs v. Stubbs, 211 So.2d 821 (1968) (1968)

Intention must be Intention must be unqualified.unqualified.

The intention to make a home must The intention to make a home must be an unqualified one, not be an unqualified one, not conditional on the happening of a conditional on the happening of a future event. future event.

Jones v. State, 207 Miss. 208, 42 Jones v. State, 207 Miss. 208, 42 So.2d 123 (1949) So.2d 123 (1949)

Contesting candidate Contesting candidate qualifications – Party qualifications – Party

candidatescandidates 23-15-961. A very short window to challenge a

party candidate’s statutory qualifications: Within 10 days after the qualifying deadline.

The initial complaint is filed with the party executive committee, who must have a hearing on the matter within 10 days of receipt of complaint.

Their decision, or failure to timely act, may be appealed to circuit court.

Contesting candidate qualifications: General

Election 23-15-963. The Miss. Supreme 23-15-963. The Miss. Supreme

Court held in Court held in Rogers v. CainRogers v. Cain, 9 So.3d , 9 So.3d 1124 (2009) that 23-15-963 does not 1124 (2009) that 23-15-963 does not apply to municipal elections.apply to municipal elections.

Accordingly, the pre-election remedy Accordingly, the pre-election remedy to challenge candidates who do not to challenge candidates who do not meet statutory qualifications is no meet statutory qualifications is no longer available.longer available.

Thank you.Thank you.Contact Information:Contact Information:

Reese PartridgeReese PartridgeLiz BolinLiz Bolin

Special Assistant Attorneys GeneralSpecial Assistant Attorneys General601-359-3680601-359-3680

rpart@ago.state.ms.usrpart@ago.state.ms.usLboli@ago.state.ms.usLboli@ago.state.ms.us

Visit our web site at : Visit our web site at : www.ago.state.ms.uswww.ago.state.ms.usOther useful websites: Other useful websites:

www.msjrc.state.ms.uswww.msjrc.state.ms.us http://billstatus.ls.state.ms.us/http://billstatus.ls.state.ms.us/

http://cgt.msstate.edu/pdf/publications/http://cgt.msstate.edu/pdf/publications/ municipal%20book%202011.pdfmunicipal%20book%202011.pdf

www.electionline.orgwww.electionline.org electionlawblog.orgelectionlawblog.org