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 clerks and municipal court clerks

Accept every criminal affidavit. Record it on the docket. Do not turn complainants away because their affidavit cites a statute you have heard is unconstitutional, or because the conduct alleged sounds non-criminal, or because the affidavit names the wrong section of the code. Those are judge decisions.

Your role under Rule 2.1(b)(1) is administrative: take the document, log it, route it to the judge. If a complainant insists on filing something patently insufficient (no parties, no facts, blank document), reasonable administrative judgment may apply, but the standard for refusing is very narrow.

If a complainant gets the statute wrong, the affidavit can still be valid. The judge can apply the right statute to the alleged facts. Better to err on the side of accepting and letting the judge sort it out.

For Mississippi justice court and municipal court judges

When you review a criminal affidavit citing Section 97-45-17 (or any statute ruled unconstitutional), do not just dismiss because of Edwards. Ask:
1. Does the alleged conduct describe a crime under a different, constitutional statute?
2. If yes, treat the affidavit as charging that crime (with appropriate amendment if needed) and decide probable cause.
3. If no, refuse to issue process and explain why on the record.

The Edwards decision struck the statute, but the conduct that statute used to cover (online harassment, threats, stalking) may still be criminal under stalking statutes (Section 97-3-107), threats statutes, harassment statutes, or other code sections. Read the affidavit for the underlying conduct, not just the statute citation.

Document your decisions clearly. A complainant whose affidavit is denied process deserves to understand why. A defendant whose case proceeds deserves to know which constitutional statute is at issue.

For Mississippi prosecutors

If your law enforcement officers or your office is using Section 97-45-17 in any post-Edwards work, stop. The statute is unconstitutional. Charges based on it will be dismissed. Re-evaluate whether the conduct can be charged under stalking, threats, harassment, or other valid statutes.

Train justice court and municipal court personnel on the post-Edwards landscape so affidavits coming in cite valid statutes from the start.

For complainants and crime victims

If you are filing an affidavit about online threats, harassment, or stalking, you do not have to figure out which statute applies. Describe what happened, by whom, on what date, with what effect. The court will figure out which (if any) criminal statute fits. Your job is to give a clear factual narrative under oath.

If you are turned away by a clerk because of a statute issue, that may not be appropriate. Ask to see the judge or speak to the clerk's supervisor. Per the AG opinion, clerks are required to accept charging affidavits.

For criminal defense attorneys

If your client was charged under Section 97-45-17 post-Edwards, move to dismiss. Edwards is binding precedent that the statute is facially invalid. Charges under it cannot stand.

If your client was charged under a different statute based on facts that overlap with the old cyberstalking offense (e.g., Mississippi's stalking statute, telecommunications harassment statute), evaluate whether the alleged conduct actually fits the elements of the new charging statute. Edwards is a reminder that overbroad criminal statutes will not survive constitutional scrutiny.

Common questions

Q: What did Edwards v. State actually say?
A: The Mississippi Court of Appeals (not the Supreme Court, despite the AG opinion's reference, the case is a Court of Appeals decision) held that Section 97-45-17 was "substantially overbroad" and therefore "facially invalid and unconstitutional." The statute had criminalized any message posted with intent to cause injury through any communication medium without consent. That swept in protected speech and was struck down.

Q: Wait, the opinion says "Mississippi Court of Appeals" but cites at "294 So. 3d 671 (Miss. 2020)". Which court actually decided it?
A: The Mississippi Court of Appeals decided Edwards. The "Miss. 2020" notation in the AG opinion is potentially imprecise, since that abbreviation is sometimes ambiguous between Court of Appeals and Supreme Court. The reporter (So. 3d) is the regional reporter for state intermediate and supreme courts. The AG opinion's text says "Mississippi Court of Appeals," and that is the substantive answer.

Q: Can the legislature fix Section 97-45-17?
A: Yes. The legislature could re-enact a narrower version that survives First Amendment scrutiny. Until then, the existing statute as struck cannot be enforced.

Q: Does this opinion apply to other unconstitutional statutes?
A: The legal principle applies generally. Justice court clerks accept all charging affidavits; judges decide probable cause and statutory fit. If another statute is later struck down, the same procedure applies: the clerk accepts, the judge declines to find probable cause under the invalid statute (but may consider whether the conduct fits a different valid statute).

Q: What if the affidavit clearly describes lawful conduct?
A: That is for the judge, not the clerk. The judge under Rule 2.2 reviews the affidavit and decides if there is probable cause. If the alleged conduct is lawful, the judge declines to issue process.

Q: What if the alleged conduct could be cyberstalking-like behavior that fits a different statute?
A: Mississippi has stalking (Section 97-3-107), aggravated stalking, and harassment statutes that may cover online or electronic conduct. The judge can recharacterize the affidavit as charging under one of those statutes if the elements are met. The judge should explain on the record what statute is supporting the warrant or summons.

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

Mississippi's criminal procedure has historically distinguished sharply between the clerical (administrative) and judicial functions in lower courts. The clerk takes papers in. The judge applies the law.

Rule 2.1 of the Mississippi Rules of Criminal Procedure (effective 2017, replacing the older Uniform Rules of Procedure for Justice Court) makes that distinction explicit. All charging affidavits are recorded; the judge then makes legal determinations on them.

Section 97-45-17, the cyberstalking statute, was on the books for several years before Edwards. The statute criminalized using any "medium of communication" (specifically including the Internet or a computer) to post a message "for the purpose of causing injury to any person...without the victim's consent." The Court of Appeals in Edwards struck it down for substantial overbreadth: the statute swept in protected speech, including political and personal expression that may upset or "injure" someone but is constitutionally protected.

After Edwards, the practical question for justice courts was: do we keep accepting cyberstalking affidavits? The AG's answer is yes, on the broad procedural rule that all charging affidavits are docketed. The substantive question (is this charge valid?) is for the judge.

The AG opinion also implicitly preserves the option that the alleged conduct might fit a different statute. A judge reading an affidavit citing the unconstitutional cyberstalking statute can consider whether the same conduct violates a constitutional stalking, harassment, or threats statute. If yes, the case can proceed under that statute. If no, the judge declines process.

This procedural separation between clerk's recording and judge's determination has roots in older Mississippi practice and parallels federal procedure on criminal complaints, indictments, and informations. The clerk does not screen for legal sufficiency. The judge does.

The Barton (2018) opinion the AG cited is part of a line of opinions on Rule 2.2's probable cause determination. The judge uses Rule 2.2(a)-(b) to review the affidavit and decide whether there is probable cause to believe the defendant committed the alleged offense. That is where the constitutional-statute question gets resolved.

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