Special Edition: Mississippi fee/fine/cost legislation in the 2017 session

HB 672

  • Requires appointment of counsel for indigent persons who face the possibility of incarceration due to a charge of failure to pay fines, fees, court costs, state assessments or restitution, or for a charge of failure to appear for court proceedings on a failure-to-pay charge.
  • Provides a court shall not order the imprisonment or revoke the probation of a person for nonpayment of a fine or restitution, or failure to make timely payments toward such penalties under a payment schedule approved by the court, without first holding a hearing, on the record, inquiring into the reasons for the nonpayment, the individual’s ability to pay and efforts to secure resources, and the adequacy of alternatives to incarceration.
  • Provides a court shall not order the imprisonment or revoke the probation of an individual for nonpayment of fees, state assessments, or court costs, or failure to make timely payments toward such penalties under a payment schedule approved by the court.’
  • Provides a person shall be presumed to be “unable to pay” a fine, fee, state assessment, court cost or restitution if the person:
    1. Has an annual income at or below the federal poverty level;
    2. Resides in a correctional or mental health facility;
    3. Is homeless;
    4. Is currently enrolled in one or more types of public assistance;
    5. Has a development disability or is totally and permanently disabled; or
    6. By the payment of fines, state assessments, fees, court costs, or restitution, would be deprived or the person’s dependents, including children and elderly parents, would be deprived of financial support needed to meet basic needs such as housing, food, child care, or transportation.

Died in House Judiciary A Committee.

HB 1033 AS APPROVED BE CONFERENCE COMMITTEE

      • Provides incarceration shall not automatically follow the nonpayment of a fine, restitution, court order or court costs.
      • Provides incarceration may be employed only after the court has conducted a hearing and examined the reasons for nonpayment and finds, on the record, that the defendant was not indigent or could have made payment but refused to do so.
      • Provides when determining whether a person is indigent, the court shall use the current Federal Poverty Guidelines and there shall be a presumption of indigence when a defendant’s income is at or below one hundred twenty-five percent (125%) of the Federal Poverty Guidelines, subject to a review of his or her assets.
      • Provides a defendant at or below one hundred twenty-five percent (125%) of the Federal Poverty Guidelines without substantial liquid assets available to pay fines, fees, and costs shall be deemed indigent. In determining whether a defendant has substantial liquid assets, the judge shall not consider up to Ten Thousand Dollars ($10,000.00) in tangible personal property, including motor vehicles, household goods, or any other assets exempted from seizure under execution or attachment as provided under Section 85-3-1.
      • Provides if the defendant is above one hundred twenty-five percent (125%) of the Federal Poverty Guidelines, the judge shall make an individualized assessment of his or her ability to pay based on the totality of the circumstances including, but not limited to, the defendant’s disposable income, financial obligations and liquid assets. If the judge determines that a defendant who claims indigence is not indigent and the defendant could have made payment but refused to do so, the case file shall include a written explanation of the basis for the determination of the judge. In justice and municipal court, such finding shall be included in the court’s order.
      • Provides if it appears to the satisfaction of the court that nonpayment is not willful, the court shall enter an order that allows the defendant additional time for payment, reduces the amount of each installment, revokes the fine, in whole or in part, or allows the defendant to perform community service at the state minimum wage per hour rate.
      • Provides if the court finds nonpayment is willful after consideration of the defendant’s situation, means, and conduct with regard to the nonpayment, the court shall determine the period of incarceration, if any, subject to the limitations set by law
      • Provides if, at the time the fine, restitution or court cost is ordered, a sentence of incarceration is also imposed, the aggregate total of the period of incarceration imposed pursuant to this section and the term of the sentence originally imposed may not exceed the maximum term of imprisonment authorized for the offense.

Conference Committee report referred to House and Senate 3/27/17.

SB 2572

See HB 672. Died in Senate Judiciary A Committee.

 

Mississippi: House approves plan to let Chief Justice pick trial judge to hear challenges to state laws

The Mississippi House earlier this week approved a plan discussed here to have constitutional challenges to state laws heard by a Circuit Court judge handpicked by the state’s Chief Justice.

HB 805 as passed 78-44 provides when there is a lawsuit “challenging the lawfulness or constitutionality of any state law, order, rule or regulation” the case would not be assigned to the Circuit Judge(s) in that county or in the capital (Hinds County) if the suit was filed there.

Instead, the case would be filed with the Supreme Court and the Chief Justice shall “designate and notify a [Circuit Court] judge to hear and determine the matters at issue.”

News reports for the 2015 version of this bill indicated this is an effort to bypass judges in Hinds County, where the capital is located.

The bill now goes to the Senate.

Mississippi: Should judges be elected or appointed? If elected, partisan or nonpartisan? Legislation on all sides of issue(s) in legislature this year.

Like many states, Mississippi doesn’t have just one method of judicial selection. It has 4.

  1. Nonpartisan thanks to a major reform effort in 1994 Nonpartisan Judicial Elections Act (Supreme Court, Court of Appeals, Circuit, Chancery, County)
  2. Partisan (Justice)
  3. Appointment and reappointment (Municipal Courts in municipalities over 10,000)
  4. Optional elections (Municipal Courts in municipalities under 10,000)

And like many states Mississippi is engaged in a debate of how best to place judges on the various benches.

HB 496: revert to partisan elections for courts currently subject to nonpartisan races. The Speaker of the House voiced his support for a return to pre-1994 partisan judicial elections. Nevertheless, the bill was tabled (i.e. killed) last week in the House Judiciary A committee.

HB 960: require municipal court judges be elected in municipalities over 10,000. Continue local-option of election vs. appointment in municipalities under 10,000. In House Apportionment and Elections committee.

HB 1256: make Justice court races nonpartisan. Mandate that position is part-time and allow judges of the court to practice law. In House Judiciary A committee.

 

 

 

Mississippi: House committee approves plan to let Chief Justice pick judge to hear challenges to state laws; part of larger national trend to get lawsuits out of state capitals

Like legislatures in other states such as North Carolina and Texas, Mississippi has attempted in recent years to move challenges to the constitutionality of state laws out of the courts that sit in the state’s capital and instead allow for the state’s chief justice to select the judge(s) to hear such cases. The most recent efforts in this area just cleared the House Judiciary A committee this week.

Under HB 805 as introduced when there is a lawsuit “challenging the lawfulness or constitutionality of any state law, order, rule or regulation” the case would not be assigned to the Circuit Judge(s) in that county. Instead, the case would be filed with the Supreme Court and the Chief Justice shall “designate and notify a [Circuit Court] judge to hear and determine the matters at issue.”

News reports for the 2015 bill indicated this is an effort to bypass judges in Hinds County, where the capital is located.

This isn’t the first time this plan was submitted. HB 710 of 2015 was approved by the full House 70-48 and was discussed here but died in the Senate Judiciary A Committee. HB 719 of 2016 never even came out of the House committee.

Mississippi: House approves bill limiting judges’ ability to ban guns in courthouses; rejected amendment tried to protect judge targeted for attack

A bill that prohibit judges from banning guns in courthouses was approved by the Mississippi House yesterday. HB 571 as amended modifies a 2011 law (discussed here) allowing anyone with a concealed carry permit who took a gun safety court to carry their guns into courthouses but still prohibiting courtroom carry when a judicial proceeding was taking place. The issue came to a head recently when the Lowndes County Chancery Court in late 2015 issued an order extending the courtroom ban to 200 feet outside the courtroom during judicial proceedings (news on issue here and here).

HB 571 would specifically limit the definition of “courtroom” to

the actual room in which a judicial proceeding occurs, including any jury room, witness room, judge’s chamber, office housing the judge’s staff, or similar room. “Courtroom” shall not mean hallways, courtroom entrances, courthouse grounds, lobbies, corridors, or other areas within a courthouse which are generally open to the public for the transaction of business outside of an active judicial proceeding.

One member of the House offered a floor amendment to allow Judge Sadie Holland of Lee County to continue to have the ability to ban guns from the courthouse. Judge Holland was the target of an attack in 2013 when a letter containing ricin was sent to her. The amendment failed on a voice vote.

In situation almost identical to Wyoming in 2013, Mississippi House debating whether judges can extend courtroom gun bans to cover courthouses

Over the last several years various states have debated prohibitions on courthouse carry; should the public in general, or concealed carry permit holders in particular, be allowed to bring their guns to court? Mississippi in 2011 opted for a broad carry policy, one that it is in the process of debating again.

In 2011 Mississippi enacted HB 506, a law allowing anyone with a concealed carry permit who took a gun safety court to carry their guns into courthouses (discussed here).

A person licensed under Section 45-9-101 to carry a concealed pistol, who has voluntarily completed an instructional course in the safe handling and use of firearms offered by an instructor certified by a nationally recognized organization that customarily offers firearms training, or by any other organization approved by the Department of Public Safety, shall also be authorized to carry weapons in courthouses except in courtrooms during a judicial proceeding… (emphasis added)

The law also allows judges to ban guns in courtrooms (“This section shall in no way interfere with the right of a trial judge to restrict the carrying of firearms in the courtroom.”)

The issue came to a head recently when the Lowndes County Chancery Court in late 2015 issued an order extending the courtroom ban to 200 feet outside the courtroom during judicial proceedings (news on issue here and here).

Two bills are looking to alter these provisions.

HB 561 repeals the 2011 provisions allowing for courthouse carry entirely.

HB 571 keeps the existing law, but defines what is a “courthouse” and a “courtroom” very narrowly. A “courtroom” for example would not include “hallways, courtroom entrances, courthouse grounds, lobbies, corridors, or other areas within a courthouse which are generally open to the public for the transaction of business outside of an active judicial proceeding.”

The situation is almost identical to one that occurred in 2012 in Wyoming. There, existing law provided for a courtroom ban, which a local judge by administrative order extended to cover the entire courthouse. The Wyoming legislature then passed a law (HB 216 of 2013) which narrowly defined courtroom and explicitly allowed for courthouse carry (discussed here).

Both HB 561 and HB 571 have been filed in the House Judiciary B Committee.

With North Carolina going back to partisan races for Court of Appeals, other states looking at similar moves

With North Carolina moving its Court of Appeals races from nonpartisan back to partisan, I thought I’d take a moment to examine what other states with nonpartisan appellate races have seen similar efforts in recent years.

Arkansas: The state had partisan elections until a 2000 constitutional amendment (Amendment 80) rewrote the state’s entire judiciary article. Section 18 of the new judiciary article requires nonpartisan elections.

Supreme Court Justices and Court of Appeals Judges shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office.

HJR 1015 of 2015 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Georgia: The state in 1983 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Art. VI, Sec. VII, Para. I)

All Justices of the Supreme Court and the Judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.

HR 855 of 2005 would have ended the mandated use of nonpartisan elections and allowed the General Assembly to use either partisan or nonpartisan elections. It died without a hearing.

Idaho: The state has made use of nonpartisan elections for the Supreme Court since at least 1970 (I.C. 34-905).

There shall be a single nonpartisan ballot for the election of justices of the supreme court and district judges.

There has been no attempt to alter this provision in the last two decades.

Kentucky: The state in 1975 adopted an entirely new constitution that requires nonpartisan election of appellate judges (Sec. 117)

Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.

There has been no attempt to alter this provision in the last two decades.

Minnesota: State law mandates that those seeking a seat on the state’s appellate courts run on a nonpartisan basis (Minn. Stat. 204B.06(6))

Each justice of the Supreme Court and each Court of Appeals and district court judge is deemed to hold a separate nonpartisan office.

There has been no attempt to change this from nonpartisan to partisan, although several bills were introduced to change the nonpartisan races to gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Mississippi: The state made use of partisan elections until the adoption of the Nonpartisan Judicial Election Act in 1994. MS Code 23-15-976 specifies that

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation.

Nearly 3 dozen attempts have been made to repeal the Nonpartisan Judicial Election Act in its entirety or at least with respect to the appellate courts and revert the law back to what it was prior to 1994 bringing a return to partisan elections. None have advanced out of committee.

Montana: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (MT Code 13-14-111)

Except as otherwise provided in this chapter, candidates for nonpartisan offices, including judicial offices, must be nominated and elected according to the provisions of this title.

SB 393 of 2005, D. 1760 of 2009, and HB 521 of 2011 would have made the races for Supreme Court partisan. The 2005 bill was killed in committee and the 2009 version only reached the drafting stage. The 2011 version was approved on a 12-6 vote of the House State Administration Committee but was killed by the full House on a 45-54 procedural vote not to advance the bill beyond the 2nd Reading calendar.

Nevada: State law mandates that those seeking a seat on the state’s Supreme Court or its new Court of Appeals run on a nonpartisan basis (N.R.S. 293.195)

Judicial offices…are hereby designated nonpartisan offices.

There has been no attempt to change this from nonpartisan to partisan.

North Dakota: State law prohibits any reference to party on ballots for the state’s Supreme Court (N.D. Cent. Code 16.1-11-08)

No reference may be made to a party ballot or to the party affiliation of a candidate in a petition and affidavit filed by or on behalf of a candidate for nomination in the primary election to an elective county office, the office of judge of the supreme court, judge of the district court, or superintendent of public instruction.

There has been no attempt to change this from nonpartisan to partisan.

Oregon: State law defines races for the Supreme Court and Court of Appeals as nonpartisan (O.R.S. 254.005(8))

“Nonpartisan office” means the office of judge of the Supreme Court, Court of Appeals….

There has been no attempt to change this from nonpartisan to partisan.

Washington: State law mandates that those seeking a seat on the state’s Supreme Court run on a nonpartisan basis (RCW 29A.52.231)

The offices of superintendent of public instruction, justice of the supreme court, judge of the court of appeals, judge of the superior court, and judge of the district court shall be nonpartisan and the candidates therefor shall be nominated and elected as such.

Two bills to convert races for both appellate courts (HB 2661 of 2011) or just the Supreme Court (HB 1051 of 2015) were never heard in committee. A third proposal (HB 2150 of 2007) would have replaced nonpartisan elections with gubernatorial appointment from a judicial nominating commission list and yes/no retention elections.

Wisconsin: State law defines judicial races as occurring during the nonpartisan Spring Elections (Wis. Stat. 5.02(21))

“Spring election” means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party in a year in which electors for president and vice president are to be elected.

There has been no attempt to change this from nonpartisan to partisan.