J. Jones - June 23, 2021 - Criminal Affidavits

550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 June 23, 2021 The Honorable Jerry Jones Webster County Justice Court 24 East Fox Avenue County Office Building, Suite C Eupora, Mississippi 39744 Re: Criminal Affidavits Dear Judge Jones: The Office of the Attorney General has received your request for an official opinion. Question Presented Should a justice court receive criminal affidavits filed under Mississippi Code Annotated Section 97-45-17, which has been found to be unconstitutional by the Mississippi Court of Appeals in Edwards v. State 294 So. 3d 671 (Miss. 2020)? Brief Response Yes. Justice court clerks must accept and record all criminal affidavits submitted by complainants. Applicable Law and Discussion Section 97-45-17 “makes it a felony to post a message for the purpose of causing injury to any person through the use of any medium of communication, including the Internet or a computer . . . without the victim's consent.” Edwards, at 672. As stated in your request, the Mississippi Court of Appeals in Edwards ruled that Section 97-45-17 is “substantially overbroad” and, as a result, is “facially invalid and unconstitutional.” Id. at 676, 78. Rule 2.1 of the Mississippi Rules of Criminal Procedure provides, in part: (a) Commencement. All criminal proceedings shall be commenced either by charging affidavit, indictment, or bill of information. (b) Docketing the Case. Hon. Jerry Jones June 23, 2021 Page 2 550 HIGH STREET • SUITE 1200 • JACKSON, MISSISSIPPI 39201 POST OFFICE BOX 220 • JACKSON, MISSISSIPPI 39205 TELEPHONE (601) 359-3680 (1) Charging affidavit. Anyone bringing a criminal charge in municipal court or justice court shall lodge a charging affidavit with the judge or clerk of the court. The clerk of the court shall record all charging affidavits on the docket. MRCrP 2.1 (emphasis added). After a criminal affidavit is filed by the clerk, the judge is then charged with determining if there is probable cause to believe that the defendant committed the offense alleged in the affidavit. MRCrP 2.2(a)–(b); MS AG Op., Barton at *1 (Mar. 30, 2018). Justice court clerks must accept and record all criminal affidavits submitted by complainants. MRCrP 2.1. Whether the conduct described in the affidavit is violative of a criminal statute that has been invalidated as unconstitutional, or whether such conduct meets the elements of another crime, is a determination for the judge. If this office may be of any further assistance to you, please do not hesitate to contact us. Sincerely, LYNN FITCH, ATTORNEY GENERAL By: /s/ Phil Carter Phil Carter Special Assistant Attorney General