If a Mississippi statute has been ruled unconstitutional, must justice court clerks still accept criminal affidavits citing that statute?

Plain-English summary

In 2020, the Mississippi Court of Appeals decided Edwards v. State and held that Section 97-45-17, the Mississippi cyberstalking statute, was substantially overbroad and therefore facially invalid and unconstitutional. The statute made it a felony to post a message intended to cause injury to any person through any communication medium without the victim's consent.

After Edwards, complainants kept showing up in justice court with criminal affidavits citing Section 97-45-17. Judge Jerry Jones in Webster County Justice Court asked the AG: should the clerk continue to accept these affidavits, or should the clerk refuse them because the underlying statute is unconstitutional?

The AG said accept them. Mississippi Rule of Criminal Procedure 2.1 lays out the steps:

• All criminal proceedings start with a charging affidavit, indictment, or bill of information.
• Anyone bringing a charge in justice or municipal court files a charging affidavit with the judge or clerk.
• The clerk shall record all charging affidavits on the docket.

The word "all" matters. The clerk is not a screening officer; the clerk is a recorder. The screening happens at the next step, when the judge reviews the affidavit for probable cause under Rule 2.2. At that point, the judge can determine that the alleged conduct does not fit a constitutional criminal statute and decline to issue process. Or the judge can determine that the alleged conduct fits some other statute (a non-cyberstalking offense covered by a different code section) and proceed accordingly.

The clerk's job is to put the affidavit on the docket. The judge's job is to decide whether the affidavit states a crime. Separating those roles keeps the clerk from acting as a quasi-judge.

What this means for you

For Mississippi justice court and municipal court clerks

Under the opinion, "justice court clerks must accept and record all criminal affidavits submitted by complainants," citing Rule 2.1, which says the clerk "shall record all charging affidavits on the docket." The opinion does not give the clerk a screening role; whether the affidavit states a valid offense is left to the judge.

For Mississippi justice court and municipal court judges

After the affidavit is filed, the judge "is then charged with determining if there is probable cause to believe that the defendant committed the offense alleged in the affidavit" (Rule 2.2; Barton). The opinion states that "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."

For complainants and crime victims

The opinion's effect is that a clerk should accept and docket your criminal affidavit even if it cites the cyberstalking statute struck down in Edwards. Whether the conduct you describe states a crime, under that statute or another, is decided by the judge after the affidavit is filed, not by the clerk at the counter.

Common questions

Q: What did Edwards v. State say about the cyberstalking statute?
A: The opinion states the Mississippi Court of Appeals in Edwards ruled that § 97-45-17 is "substantially overbroad" and "facially invalid and unconstitutional." The opinion describes the statute as one that "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."

Q: Does this opinion apply to other unconstitutional statutes?
A: The opinion states the procedural rule generally: clerks "must accept and record all criminal affidavits," and whether the alleged conduct violates an invalidated statute or "meets the elements of another crime" is "a determination for the judge." That clerk-records / judge-decides division would apply the same way to an affidavit citing another invalidated statute.

Q: What if the affidavit clearly describes lawful conduct?
A: The opinion leaves that to the judge. After the affidavit is filed, the judge determines probable cause under Rule 2.2; the clerk's role is to record the affidavit.

Q: What if the conduct might fit a different statute?
A: The opinion says whether the conduct "meets the elements of another crime" is a determination for the judge. It does not name a specific replacement statute; it leaves that analysis to the judge reviewing the affidavit.

Q: Does this same rule apply to municipal court?
A: Yes. Rule 2.1 applies to both justice and municipal courts ("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's duty to record applies in both.

Q: What about criminal complaints brought by police officers?
A: Officers also file charging affidavits. The Rule 2.1 duty to accept and record applies to all complainants, citizen and law enforcement.

Q: When does service of the warrant or summons happen?
A: After the judge finds probable cause under Rule 2.2. The clerk's docket entry is just step one. Steps two and three (probable cause determination, issuance of process) are judicial steps.

Background and statutory framework

The opinion rests on the division between the clerk's recording function and the judge's legal determination. Rule 2.1 of the Mississippi Rules of Criminal Procedure provides that all criminal proceedings are commenced by charging affidavit, indictment, or bill of information, that "[a]nyone bringing a criminal charge in municipal court or justice court shall lodge a charging affidavit with the judge or clerk of the court," and that "[t]he clerk of the court shall record all charging affidavits on the docket."

Section 97-45-17, the cyberstalking statute, is described in the opinion (quoting Edwards) as a statute that "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." The Mississippi Court of Appeals in Edwards held it "substantially overbroad" and "facially invalid and unconstitutional."

The AG's answer is that the clerk must still record such affidavits, because Rule 2.1 directs the clerk to record "all charging affidavits." The substantive questions, whether the conduct violates the invalidated statute or "meets the elements of another crime," are for the judge. After the affidavit is filed, the judge "is then charged with determining if there is probable cause to believe that the defendant committed the offense alleged in the affidavit" under Rule 2.2(a)-(b) (citing the Barton opinion).

Citations and references

Statutes:

• Miss. Code Ann. § 97-45-17, cyberstalking (held unconstitutional by Edwards)

Cases:

• Edwards v. State, 294 So. 3d 671 (Miss. Ct. App. 2020), Section 97-45-17 facially invalid and unconstitutional

Court rules:

• Mississippi Rule of Criminal Procedure 2.1, commencement of criminal proceedings; clerk to record all charging affidavits
• Mississippi Rule of Criminal Procedure 2.2, judge's probable cause determination

Prior AG opinions:

• MS AG Op., Barton (Mar. 30, 2018), judge determines probable cause after affidavit filing

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/07/J.-Jones-June-23-2021-Criminal-Affidavits.pdf

Original opinion text

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.

(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