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.”)
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).
- 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:
- Has an annual income at or below the federal poverty level;
- Resides in a correctional or mental health facility;
- Is homeless;
- Is currently enrolled in one or more types of public assistance;
- Has a development disability or is totally and permanently disabled; or
- 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.
See HB 672. Died in Senate Judiciary A Committee.
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.
Like many states, Mississippi doesn’t have just one method of judicial selection. It has 4.
- Nonpartisan thanks to a major reform effort in 1994 Nonpartisan Judicial Elections Act (Supreme Court, Court of Appeals, Circuit, Chancery, County)
- Partisan (Justice)
- Appointment and reappointment (Municipal Courts in municipalities over 10,000)
- 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.
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.
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.