Senate Bill 2478

AN ACT TO PROVIDE THAT IF AN ELECTED PUBLIC OFFICER DECLARES A CHANGE IN HIS OR HER PARTY AFFILIATION DURING THE TERM OF HIS OR HER OFFICE, SUCH PUBLIC OFFICER SHALL BE REMOVED FROM OFFICE; TO PROVIDE THAT SUCH REMOVAL SHALL BE INITIATED BY THE FILING OF AN AFFIDAVIT WITH THE STATE BOARD OF ELECTION COMMISSIONERS; TO REQUIRE THAT NOTICE OF THE AFFIDAVIT SHALL BE GIVEN TO THE ELECTED PUBLIC OFFICER WITHIN 10 DAYS AFTER RECEIPT OF THE AFFIDAVIT; TO REQUIRE THAT A NOTICE TO APPEAR AT A HEARING AT A TIME SET BY THE STATE BOARD OF ELECTION COMMISSIONERS SHALL BE GIVEN TO THE ELECTED PUBLIC OFFICER AT LEAST 20 DAYS PRIOR TO THE DATE WHEN HIS APPEARANCE IS REQUIRED; TO PROVIDE THAT A COUNCIL OF THREE CHANCERY COURT JUDGES SHALL BE CONVENED AT THE TIME AND PLACE STATED IN THE NOTICE TO DETERMINE IF THE ALLEGATION OF A CHANGE IN PARTY AFFILIATION BY THE ELECTED PUBLIC OFFICER IS FACTUAL; TO PROVIDE THAT THE PUBLIC SHALL BE GIVEN NOTICE OF THE HEARING BY A PROCLAMATION OF THE STATE BOARD OF ELECTION COMMISSIONERS AND THAT ANY CITIZEN MAY APPEAR AND GIVE RELEVANT EVIDENCE; TO PROVIDE THAT IF THE COUNCIL DETERMINES BY CLEAR AND CONVINCING EVIDENCE THAT A CHANGE IN PARTY AFFILIATION HAS OCCURRED, IT SHALL PRESENT ITS FINDINGS TO THE GOVERNOR WHO SHALL REMOVE THE ELECTED PUBLIC OFFICER FROM OFFICE AND DECLARE A VACANCY IN OFFICE IF THE OFFICE IS A LOCAL OFFICE OR APPOINT A REPLACEMENT IF THE OFFICE IS A STATEWIDE OR STATE DISTRICT OFFICE; TO PROVIDE THAT IN THE EVENT THE GOVERNOR IS ALLEGED TO HAVE CHANGED PARTY AFFILIATION, THE LIEUTENANT GOVERNOR SHALL PERFORM THE DUTIES OF THE GOVERNOR UNDER THIS ACT; TO PROVIDE THAT IF A PUBLIC OFFICER IS REMOVED ALL HIS MONETARY CAMPAIGN CONTRIBUTIONS SHALL BE FORFEITED AND DEPOSITED IN A SPECIAL FUND CREATED BY THIS ACT TO ASSIST IN THE DEFRAYING OF ELECTIONS REQUIRED BY THIS ACT; TO PROVIDE A PROCEDURE FOR THE FORFEITURE OF MONETARY CAMPAIGN CONTRIBUTIONS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) As used in this act the term "elected public officer" means any elected statewide, state district, county or municipal officer.

(2) If an elected public officer declares a change in his or her party affiliation during the term of his or her office and prior to the qualifying deadline for such office, such public officer shall be removed from office in the manner provided for in this act.

SECTION 2. (1) Any qualified elector may initiate the removal of an elected public officer for a declaration of a change in party affiliation as provided in Section 1 of this act by filing an affidavit with the State Board of Election Commissioners stating the facts supporting the allegation of a change in party affiliation.

(2) When an affidavit is filed with the State Board of Election Commissioners, the board shall, within ten (10) days of the filing thereof, cause true copies to be personally delivered by some officer, designated in writing by the board, to the elected public officer named in the affidavit, and shall in like manner and form cause to be personally served on the elected public officer named in the affidavit a notice to appear, if he desires, at a time to be fixed by the State Board of Election Commissioners to show that the allegation of a change in party affiliation contained in the affidavit is false. The notice shall be served upon the officer at least twenty (20) days prior to the date when his appearance is required. The place of hearing shall be the county courthouse of the county in which the officer resides.

SECTION 3. At the time and place designated in the notice, the Governor shall cause to be convened a removal council to be composed of three (3) chancery judges appointed by the State Board of Election Commissioners, none of whom shall reside in the district in which the officer under question resides, to hear and determine whether the allegation of change of party affiliation contained in the affidavit is factual. The senior chancellor shall serve as the presiding judge of the council. The hearing herein provided may continue from day to day and be recessed from time to time, as in the discretion of the council may be ordered. The public shall be given notice of the hearing by proclamation of the State Board of Election Commissioners of the time and place of such hearing. Any interested citizen or citizens may likewise appear at the hearing and make such representations to the council as, in the discretion of the council, may be material to the issues involved. The council shall promulgate rules for such hearings, which shall be in writing, but all representations shall be made under oath, to be administered by some member of the council. It shall not be necessary that a stenographic record be kept of the hearing, but the testimony taken shall be heard as nearly as practicable in compliance with the usually applicable rules of evidence. All decisions of the council on any question, preliminary or final, including the question of whether just cause for a removal has been shown, shall be final and not subject to review.

The elected public officer concerned shall be entitled to be represented by counsel of his choice at the hearing.

SECTION 4. (1) The council shall keep minutes of its final judgments, and the disposition of each affidavit shall be recorded therein. If it be the judgment of the council that the change in party affiliation has not been proven by clear and convincing evidence to have occurred, then the affidavit shall be dismissed.

(2) If the council shall be of the opinion that a change in party affiliation has been shown by clear and convincing evidence, the council shall present its findings to the Governor who shall:

(a) Declare a vacancy in the elective office if the office is a county or municipal office; or

(b) Appoint a qualified person to serve in the elective office if the office is a statewide or a state district office.

(3) If an elected public officer is removed under this act, all monetary campaign contributions that are reported or required to be reported under Sections 23-15-801 through 23-15-817 that are in possession of the officer at the time of his removal or on the qualifying deadline for the office from which he is removed if he is removed after such deadline, shall be subject to forfeiture to the state as provided in Section 8 of this act and shall be deposited in the special fund created in Section 7 of this act.

SECTION 5. The elected public officer named in the removal petition shall continue to perform the duties of his office until the council issues its decision. If, however, the officer named in the affidavit shall offer his resignation before the issuance of the decision of the council, it shall be accepted, shall take effect on the date it is offered, and the vacancy shall be filled as provided by law for the filling of any vacancy in an elective county office.

SECTION 6. In the event the Governor is named in the affidavit filed with the State Board of Election Commissioners pursuant to this act, the Lieutenant Governor shall perform the duties of the Governor under this act.

SECTION 7. There is hereby created in the State Treasury a special fund to be designated as the "Removal From Office Election Fund" into which shall be deposited funds as required by this act. Money in the fund shall not lapse and shall be utilized to assist local jurisdictions in defraying the cost of elections required by this act.

SECTION 8. (1) When campaign contributions are subject to forfeiture under this act, proceedings under this section shall be instituted promptly.

(2) (a) A petition for forfeiture shall be filed promptly in the name of the State of Mississippi with the clerk of the circuit court of the county in which the person to whom the contributions were made lives. A copy of such petition shall be served upon the person to whom the monetary campaign contributions were made and any person in possession of the monetary campaign contributions.

(b) If there is any reasonable cause to believe that the monetary contributions are encumbered, then the state shall make a good faith inquiry to identify the person to whom they are encumbered.

(c) No proceedings instituted pursuant to this section shall proceed to hearing unless the judge conducting the hearing is satisfied that this section has been complied with. Any answer received from an inquiry required by this section shall be introduced into evidence at the hearing.

(3) (a) The removed officer shall file a verified answer within twenty (20) days after the completion of service of process. If no answer is filed, the court shall hear evidence that monetary campaign contributions of the removed officer are subject to forfeiture and forfeit the property to the state. If an answer is filed, a time for hearing on forfeiture shall be set within thirty (30) days of filing the answer or at the succeeding term of court if court would not be in progress within thirty (30) days after filing the answer.

(b) If the removed public officer has filed a verified answer denying that the monetary contributions are subject to forfeiture, then the burden is on the state to prove that the contributions are subject to forfeiture. The burden of proof placed upon the state shall be by a clear and convincing evidence. However, if no answer has been filed, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the monetary campaign contributions are subject to forfeiture.

(d) If it is found that the monetary campaign contributions are subject to forfeiture, then the judge shall forfeit the property to the state. However, if proof at the hearing discloses that the value of interest of any claimant is greater than or equal to the contribution, the court shall order the contribution released to him. If the value of such interest is less than the contribution and if the proof shows that the contribution is subject to forfeiture, the court shall order the property forfeited to the state.

(4) All contributions which are forfeited to the state shall be forwarded to the State Treasurer and deposited in the special fund created in Section 7 of this act; however, the forfeited contributions shall first be applied to the satisfaction of all interests, if any, in such contributions.

SECTION 9. The Attorney General of the State of Mississippi shall submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.

SECTION 10. This act shall take effect and be in force from and after the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended.