Tag: Mississippi

Who decides who can carry a gun into a courtroom? And what is a courtroom, exactly? Arkansas and Mississippi debating the issues.

As I’ve noted over the years, there’s been more and more of an effort to expand where people can carry firearms into courthouses, but the traditional (and in some states constitutional) boundary is the courtroom door. But what is a “courtroom”? And what about law enforcement?

What is a courtroom?
In Mississippi this issue came up most recently as the result of litigation. The state legislature had previously enacted a law to allow for courthouse carry for those with enhanced licenses, but specifically exempted courtrooms. Several Mississippi judges attempted to create by administrative order a gunfree zone that encompassed portions of their courthouse. In June of last year the Mississippi Supreme Court struck down that policy (Ward v. Winston Colom) but did uphold the courtroom ban.

The debate did not stop there, however. Enter HB 1581, which would specifically defined “courthouse” and “courtroom” for purposes of the carrying statute, and provide that a “courtroom” includes “judges’ chambers, witness rooms and jury rooms. ” However, explicitly excluded from “courtroom” is ” 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 grassed areas, cultivated flower beds, sidewalks, parking lots, or other areas contained within the boundaries of the public land upon which the courthouse is located.”

HB 1581 was approved by the House Judiciary B committee on February 5.

Does law enforcement have a “right” to carry into a courtroom?

The other question is whether a judge could prohibit law enforcement from coming into a courtroom armed. When the New Hampshire legislature tried to force this issue in the 1970s, that state’s high court ruled against a statute that required judges let law enforcement come in armed (State v. LaFrance, 124 N.H. 171, 471 A.2d 340, 1983 N.H. LEXIS 377 (1983). The provision in RSA 490:4-a (“Notwithstanding any other rule, regulation or order to the contrary, law enforcement officers shall be permitted to wear firearms in any courtroom in the state.”) struck as unconstitutional. Violates the separation of powers doctrine provided by part 1, article 37 of the Constitution of New Hampshire.)

Mississippi law already provides “A law enforcement officer, as defined in Section 45-6-3, shall be authorized to carry weapons in courthouses in performance of his official duties” but what about courtroom carry? HB 1019 would have specifically put into law that the existing statute did not apply where the officer was “instructed by the judge of that court in that judge’s courtroom” to leave the weapon. The bill went nowhere in the House.

Arkansas is debating a similar courtroom-carry-by-law-enforcement bill. Arkansas law already contains a provision that law enforcement “is permitted to possess a handgun in the courtroom.” SB 197 as originally filed would have allowed for both on-duty and off-duty certified law enforcement to courtroom carry.

This was amended, however, with a proviso: an off-duty officer may not courtroom carry if he or she is “a party to or a witness in a civil or criminal matter unless the law provides otherwise.”

SB 197 is set for a hearing in the Arkansas Senate City, County, and Local Affairs Committee tomorrow (2/12).

3 states consider ending partisan judicial races, but 2 other states debate bringing them back; other states want an end to partisan election of clerks of court

Years ago, I noted the North Carolina/West Virginia paradox. As West Virginia moved to expand its public financing of judicial races (court of last resort at least), North Carolina moved to end their program. West Virginia moved to end partisan judicial races at almost the same moment North Carolina moved to bring their judicial races back to partisan.

The above dynamic is playing out in the 2019 legislative sessions in a host of states: one state moving one way on judicial selection, while a nearby (and sometimes neighboring) state considers going the other way.

Partisan to Nonpartisan
New Mexico SJR 12 would end partisan races for Supreme Court, Court of Appeals, District Court, and Metropolitan Court. A similar plan was introduced as SJR 10 of 2017 (discussed here). The 2017 effort was approved in the Senate Rules Committee but proceed no further.

Mississippi HB 1490 addresses a quirk in Mississippi law. The state has previously ended partisan judicial elections for all courts except the state’s lowest (justice court). HB 1490 would switch these elections to partisan and provide that judges elected to these courts would be considered legally “part-time” judges and eligible to continue to practice law.

South Carolina HB 3034 would require nonpartisan elections in probate courts. Interesting, South Carolina’s probate court judges are the only judges in the state subject to voters. Most (Supreme Court, Court of Appeals, Circuit, and Family) are chosen by the legislature. Magistrates Court judges are appointed by the governor with legislative confirmation. Municipal Court judges are appointed by local government.

Nonpartisan to Partisan
Kentucky HB 123 would amend the state’s constitution to require partisan elections for judges in the state. The move seems, at least in part, prompted by a recent decision of the state’s supreme court striking down the governor’s and legislature’s pension reform plan as unconstitutional.

South Dakota SJR 3 would end nonpartisan elections for all judges.

Clerk Races
While a great deal of focus is on judicial races, another key judiciary-related office is that of Clerk of Court. While there have been several attempts in states to make these races nonpartisan over the years, none have succeeded. Nevertheless, the topic is up for debate this year in the following states:

Mississippi SB 2374 would convert several county offices to nonpartisan including Chancery Clerk and Circuit Clerk.

Nebraska LB 72, LB 144, and LB 211 would allow for some of all county officers, including clerks of court, to be elected on a nonpartisan basis. The bills differ in how that change would occur: LB 72 and LB 211 would simply convert these elections to nonpartisan directly. HB 144 would require voters to approve such a change on a county-by-county basis.

South Carolina HB 3032 would end the practice of electing on a partisan basis the Clerk of Common Pleas who serves ex officio as the clerk for all courts of record in a county (unless specified by another statute).





Mississippi: Legislature sends to Governor plan to expand Chief Justice’s power to appoint temporary judges to courts; CJ could assign temp judges to particular cases or case types/dockets

The Mississippi Legislature has unanimously advanced to the governor a bill to expand the power of the state’s Chief Justice to appoint “special judges” to help clear up case backlogs.

State law already allows the Chief Justice, with the consent of a majority of the Supreme Court, to make such appointments for the Court of Appeals, Chancery Court, or Circuit Court. Now the Chief Justice could name such temporary special judges to County Courts.

Additionally, rather than simply appointing the temporary judge to a court, the Chief Justice could give the temporary judge particular assignments (“The Chief Justice, in his discretion, may appoint the special judge to hear particular cases, a particular type of case, or a particular portion of the court’s docket.”)

 

Mississippi: Bill to drug test judges and other elected officials filed; latest in 3 decades of bills debated/enacted on this subject

Over the last several decades there has been a push to drug test those who are on any kind of public assistance and, in response, efforts by state legislators to put the same sort of drug testing requirements on public officials, including in many instances judges (I discussed this phenomena at length here and here and here and here).

This year’s version comes from Mississippi HB 490. The bill requires annual drug testing of all elected officials, including specifically judges, to determine eligibility to receive their compensation. The language of HB 490 is effectively verbatim that of HB 472 which would require drug testing for all recipients of state or local funded benefits.

If enacted, HB 490 is likely to face a court challenge. In 1997, the same year Louisiana mandated drug testing for certain adult recipients of public assistance (HB 2435), the state enacted a process for random drug testing of all “elected officials” (HB 646). The elected officials plan was struck down in 1998 by the Federal courts when Justice of the Peace Phillip O’Neill and other elected officials challenged the law. (O’Neill v. Louisiana., E.D. La. 1998, 61 F.Supp.2d 485, affirmed 197 F.3d 1169, cert. denied 120 S.Ct. 2740, 530 U.S. 1274, 147 L.Ed.2d 2005).

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.