MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Apportionment and Elections

By: Representative Holland

AN ACT TO AMEND SECTIONS 25-5-3, 25-5-7, 25-5-9, 25-5-13, 25-5-15, 25-5-17, 25-5-19, 25-5-21, 25-5-23, 25-5-25, 25-5-27 AND 25-5-33, MISSISSIPPI CODE OF 1972, TO INCLUDE MUNICIPAL ELECTED OFFICIALS IN THE LAWS WHICH PRESCRIBE THE PROCEDURES FOR THE REMOVAL OF COUNTY ELECTED OFFICIALS BY PETITION ELECTION; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 25-5-3, Mississippi Code of 1972, is amended as follows:

25-5-3. The Governor is hereby empowered, in accordance with the provisions of Section 139 of the Mississippi Constitution of 1890, through the procedure and under the regulations prescribed in Sections 25-5-3 through 25-5-37 and for the reasons and causes set forth, to remove any elective county or municipal officer in this state; and every elective officer of any county or municipality in this state may be removed from office by the Governor at any time when done in compliance with the regulations hereinafter set forth.

SECTION 2. Section 25-5-7, Mississippi Code of 1972, is amended as follows:

25-5-7. Before the Governor shall consider the removal from a county or municipal, as the case may be, office of any elective county or municipal, as the case may be, officer, there shall be first filed with him a petition signed by not less than thirty percent (30%) of the qualified electors of the county or municipality, as the case may be, demanding the removal of the officer. The petition shall contain a general statement, in not more than two hundred (200) words, of the ground or grounds on which the removal is demanded, which statement shall be for the information of the officer involved, for the information of the council hereinafter provided, and for the information of the qualified electors of the county or municipality, as the case may be.

All removal petitions with reference to only supervisors, justice court judges and constables must be signed by at least fifty-one percent (51%) of the qualified electors of the beat or district from which they were originally elected.

Upon the request of any qualified elector, it shall be the duty of the county and district prosecuting attorney to advise such person as to the provisions of Sections 25-5-3 through 25-5-37 and how to comply with the same.

SECTION 3. Section 25-5-9, Mississippi Code of 1972, is amended as follows:

25-5-9. The removal petitions shall be in substantially the following forms:

(a) REMOVAL PETITION

(WARNING.--It is a misdemeanor, punishable by fine and imprisonment, for any person to sign any removal petition with any name other than his own, or knowingly to sign his name more than once to the petition, or knowingly to sign the petition when he is not a qualified elector.)

Date: __________

TO THE GOVERNOR OF THE STATE OF MISSISSIPPI:

We, the undersigned qualified electors of __________ County, State of Mississippi, respectfully demand that __________, holding the office of __________ in said county, be removed from office by the Governor for the following reasons, to wit: (Setting out the reasons for removal in not more than two hundred (200) words); that a special election, after lawful notice, be called to permit the qualified electors of the county to vote on the question of whether or not the * * * officer shall be removed;

That we each for himself say that: I am a qualified elector of the county, and my voting precinct is correctly written after my name, and that it was stated to me before the signing of the petition that after signing the same I would not be permitted to remove my name from the petition.

1. __________ __________

2. __________ __________

3. __________ __________

(b) REMOVAL PETITION

(WARNING.--It is a misdemeanor, punishable by fine and imprisonment, for any person to sign any removal petition with any name other than his own, or knowingly to sign his name more than once to such petition, or knowingly to sign the petition when he is not a qualified elector.)

Date: __________

TO THE GOVERNOR OF THE STATE OF MISSISSIPPI:

We, the undersigned qualified electors of the municipality of __________, __________ County, State of Mississippi, respectfully demand that __________, holding the office of __________ in the municipality, be removed from office by the Governor for the following reasons, to wit: (Setting out the reasons for removal in not more than two hundred (200) words); that a special election, after lawful notice, be called to permit the qualified electors of the municipality to vote on the question of whether or not the officer shall be removed;

That we each for himself say that: I am a qualified elector of the municipality, and my voting precinct is correctly written after my name, and that it was stated to me before the signing of the petition that after signing the same I would not be permitted to remove my name from the petition.

1. __________ __________

2. __________ __________

3. __________ __________

SECTION 4. Section 25-5-13, Mississippi Code of 1972, is amended as follows:

25-5-13. Each and every petition, or separately circulated section thereof, containing signatures shall be verified on the last page thereof in substantially the following forms:

(a) STATE OF MISSISSIPPI

County of __________

I, __________, a qualified elector of the county do now state under oath that every person who signed the foregoing petition signed his or her name thereto in my presence, and that before the signing of the petition the signator was told that after signing the same his or her name could not be removed from the petition; that I believe that each has stated his or her name and precinct correctly, and that so far as I know each signer is a qualified elector of this county, and I further certify that the date appearing on the foregoing petition is the correct date on which the first signature was affixed to the petition or any section thereof.

(Signature) ________________

Sworn to and subscribed before me, this ___________ day of ___________, 19___.

____________________________

____________________________

(b) STATE OF MISSISSIPPI

County of _______________

Municipality of _________

I, __________, a qualified elector of the municipality do now state under oath that every person who signed the foregoing petition signed his or her name thereto in my presence, and that before the signing of the petition the signator was told that after signing the same his or her name could not be removed from the petition; that I believe that each has stated his or her name and precinct correctly, and that so far as I know each signer is a qualified elector of this municipality, and I further certify that the date appearing on the foregoing petition is the correct date on which the first signature was affixed to the petition or any section thereof.

(Signature) ________________

Sworn to and subscribed before me, this _________ day of __________, 19___.

____________________________

____________________________

SECTION 5. Section 25-5-15, Mississippi Code of 1972, is amended as follows:

25-5-15. (1) Before the submission of the county petitions to the Governor to be filed by him, all sections of the same shall be consolidated and delivered to the county registrar of the county in which the petition has been circulated. No signatures shall be thereafter added. The county registrar shall compare the signatures of the persons appearing on the petition with the names of the qualified electors appearing on the pollbooks of the county, and shall attach to the petition, or to each section of the petition if the same has been circulated in sections, the following certificate:

STATE OF MISSISSIPPI

County of __________

I, __________, county registrar in and for the county and state aforesaid, do hereby certify that I have compared the signatures on the preceding sheets of the removal petition attached hereto, and to the best of my knowledge and belief the * * * petition (or section of petition) contains the signatures of __________ qualified electors of the county (or beat, as case may be), and I have drawn a line in red ink through the names of those signators who appear by the records in my office not to be qualified electors, or who have died. I further certify that as of the date of the petitions there were __________ qualified electors in this county (or beat, as the case may be).

Given under my hand and seal of office, this the ___ day of __________, 19___.

________________

County Registrar

(2) Before the submission of the municipal petitions to the Governor to be filed by him, all sections of the same shall be consolidated and delivered to the municipal registrar of the municipality in which the petition has been circulated. No signatures shall be thereafter added. The municipal registrar shall compare the signatures of the persons appearing on the petition with the names of the qualified electors appearing on the pollbooks of the municipality, and shall attach to the petition, or to each section of the petition if the same has been circulated in sections, the following certificate:

STATE OF MISSISSIPPI

County of _______________

Municipality of _________

I, __________, municipal registrar in and for the municipality, county and state aforesaid, do hereby certify that I have compared the signatures on the preceding sheets of the removal petition attached hereto, and to the best of my knowledge and belief the petition (or section of petition) contains the signatures of __________ qualified electors of the municipality (or beat, as case may be), and I have drawn a line in red ink through the names of those signators who appear by the records in my office not to be qualified electors, or who have died. I further certify that as of the date of the petitions there were __________ qualified electors in this municipality (or beat, as the case may be).

Given under my hand and seal of office, this the ___ day of __________, 19___.

___________________

Municipal Registrar

SECTION 6. Section 25-5-17, Mississippi Code of 1972, is amended as follows:

25-5-17. The certificate by the county or municipal registrar, as the case may be, shall be prima facie evidence of the facts stated therein and of the qualification of the electors whose signatures are thus certified. The Governor shall consider and count only those signatures on such petition as shall be * * * certified by the registrar; provided, however, that any officer sought to be removed or any citizen of the county or municipality, as the case may be, shall have the privilege of submitting evidence in writing, under oath, to the Governor as to the question of whether or not any signator to the petition was in fact a qualified elector at the time of the signing of the petition, or has since died. The decision of the Governor as to whether or not any particular person was or was not a qualified elector at the time of the signing of the petition, or whether or not any particular person has since died, shall be final and shall not be subject to review. The status of the signator as to whether or not he or she was a qualified elector at the time of signing the petition shall be determined as of the date of the petition and not by any other date.

SECTION 7. Section 25-5-19, Mississippi Code of 1972, is amended as follows:

25-5-19. The county or municipal registrar, as the case may be, shall not retain in his possession any such petition or any section thereof for a longer period than two (2) days for the first two hundred (200) signatures thereon and one (1) additional day for each two hundred (200) additional signatures or fraction thereof, and the time consumed in the examination of the petitions shall not be counted in determining the time between the signing and the filing of the petitions. At the expiration of the examination, the registrar shall forthwith file the same with the Governor, with his certificate attached, and shall obtain a written receipt for the same. The forms herein are not mandatory, but directory, and if substantially followed in any petition it shall be sufficient, disregarding clerical and technical errors. If the registrar be unable to examine the petition, he shall * * * certify the fact to the county or municipal election commissioners, as the case may be, who shall in the same manner and time perform all the functions herein required of the registrar. In the event the county or municipal registrar is the officer whose removal is sought by the petition, then the petition shall be delivered to one of the county or municipal election commissioners, as the case may be, in which the petition has been circulated, and the county or municipal election commissioners, as the case may be, shall in the same manner and within the same time perform all functions herein required of the registrar. A fee of Five Cents (5¢) per signature shall be allowed for the aforesaid examination of the petitions, to be paid out of the general funds of the county or municipality, as the case may be, upon due proof of said examination. Any registrar or any board of county or municipal election commissioners, as the case may be, or member thereof who wilfully fails or refuses to perform the duty or duties herein required of him or them shall be subject to a civil penalty of One Thousand Dollars ($1,000.00), to be recovered in the chancery court of the county by suit which may be filed by any qualified elector who signed the petition or any section thereof.

SECTION 8. Section 25-5-21, Mississippi Code of 1972, is amended as follows:

25-5-21. When the petitions * * * have been filed with the Governor, within ten (10) days of the filing thereof the Governor shall cause true copies thereof (photostatic copies being sufficient) to be personally delivered by some officer of the county or municipality, as the case may be, designated in writing by the Governor, to the officer sought to be removed, and shall in like manner and form cause to be personally served on the officer a notice to appear, if he desires, at a time to be fixed by the Governor to show cause, if any he can, why the question of his removal should not be submitted to a vote of the qualified electors as hereinafter provided, which the notice shall be served upon the officer at least twenty (20) days before 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 9. Section 25-5-23, Mississippi Code of 1972, is amended as follows:

25-5-23. 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 Governor, none of whom shall reside in the district in which the officer under question resides, to hear and determine whether there is substantial basis for a removal election consistently with the provisions of Sections 25-5-3 through 25-5-37. 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 qualified electors of the county or municipality, as the case may be, shall likewise be given notice by proclamation of the Governor of the time and place of the hearing. Any interested citizen or citizens may likewise appear at the time and place 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 the 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 representations, either for or against removal, 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 an election has been shown, shall be final and not subject to review.

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

SECTION 10. Section 25-5-25, Mississippi Code of 1972, is amended as follows:

25-5-25. The council shall keep minutes of its final judgments, and the disposition of each petition shall be recorded therein. If it be the judgment of the council that sufficient cause has not been shown to justify the removal of the officer, then the petition shall be dismissed and no new petition shall be filed or entertained for a period of one (1) year from the date of the order dismissing the petition.

If, however, the council shall be of the opinion that sufficient cause has been shown to justify the removal of the officer, then notice to the qualified electors of the county or municipality, as the case may be, involved shall be given, in accordance with the general election laws of the State of Mississippi in the matter of filling vacancies in county or municipal offices, that an election shall be held in the county or municipality, as the case may be, to determine the question of whether or not the county or municipal official shall be removed from office.

SECTION 11. Section 25-5-27, Mississippi Code of 1972, is amended as follows:

25-5-27. The officer named in the removal petition shall continue to perform the duties of his office until the results of the special removal election shall be officially proclaimed. If, however, the officer named in the petition for removal shall offer his resignation before the issuance of the proclamation for the holding of special removal election, 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 or municipal office. The officer who either resigns or is removed shall not be eligible to fill the vacancy caused by his removal or resignation, or serve as deputy in the office from which he resigns or is removed.

SECTION 12. Section 25-5-33, Mississippi Code of 1972, is amended as follows:

25-5-33. The election commissioners of the county or municipality, as the case may be, or a quorum thereof, shall meet at the office of the county or municipal registrar, as the case may be, at 9:00 a.m. of the day following the special removal election, and shall then proceed to canvass, tabulate, and certify the results of the election as now provided by the general election laws of the State of Mississippi. The certificate of the results, showing the total votes cast for the removal of the officer, the total votes cast against the removal of the officer, and the total number of qualified electors in the county, supervisors district or municipality in which the election was held, shall be forwarded to the Governor. If a majority of all qualified electors of the county, supervisors district or municipality in which the election has been held * * * have not voted in the election, either for or against the removal, or if a majority of the qualified electors voting in the election * * * oppose removal, the officer shall not be removed and shall not thereafter during his term of office be subject to another removal election. If a majority of all qualified electors of the county, supervisors district or municipality in which the election has been held have voted either for or against removal, and if a majority of the qualified electors voting in the election * * * vote for the removal of the officer, then the Governor shall issue his proclamation declaring the office vacant, removing the officer, and appointing a suitable person to fill the vacancy until the same can be filled in a special election to be held not more than sixty (60) days after the aforesaid proclamation of the Governor. No officer shall be subject to a removal petition until he shall have served at least one (1) year of his term.

SECTION 13. 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 14. 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.