House Bill 1020 has already been the subject of national comment because, in cases arising out of the new Capitol Complex Improvement District, it would displace the elected Hinds County judges with a new appointed court. Some blame racial bias. Whether that is true would, of course, depend on the race of the new judges. But there are far deeper problems with the bill.
The Mississippi Constitution does not allow the displacement of elected judges. To be constitutional, the new court would have to be “inferior” to elected judges and subject to their review. Moreover, there is nothing in the Mississippi Constitution that would allow the chief justice of the Mississippi Supreme Court or anyone else to do what the bill asks, i.e. to appoint its members. The constitution does not contemplate filling any permanent judicial office by appointment, and the temporary appointing powers it gives belong exclusively to the governor.
So House Bill 1020, if passed, would either simply add a new and unnecessary layer of judicial review to any case arising in the district or, if review by the elected judges could somehow be curtailed, and appointment were even possible, it could put the governor in the driver’s seat of litigation against, among others, the governor and his executive branch agencies. That is not a good idea.
The Mississippi Constitution says the judicial power lies in courts “as are provided for in this constitution.” It provides for an elected Supreme Court and elected circuit and chancery trial courts. It then says that the legislature can create “inferior courts” which it also can abolish “whenever deemed expedient.” In other words, the judges of those courts, unlike the judges of the named courts, have no protection against a legislature which does not like their rulings and so chooses to eliminate their positions.
When the legislature created the elected Court of Appeals in 1994, the Supreme Court held that it is a constitutional “inferior court,” even though it shares jurisdiction with the Supreme Court, because it is “inferior” in ultimate authority to the Supreme Court itself. Appellate cases are filed in the Supreme Court and some are then assigned by the Supreme Court to the Court of Appeals for decision. At any time, the Supreme Court can take a case back. And a party disappointed in the Court of Appeals can obtain certiorari review in the Supreme Court. That court can then decide the case as if it had originally been filed there.
What this means is that, in order to create a trial court with jurisdiction that would otherwise belong to the circuit and chancery courts, that court has to be “inferior” to those courts. It has to be subject to their controlling authority or review.
The authors of bill 1020 initially disregarded this requirement altogether. In the version of the bill now before the Senate, however, there is a provision that allows review for “prejudicial error” in the circuit court. Even assuming this would make the circuit court “superior” rather than “inferior” in its powers and a new trial is not required, the bill makes significant review virtually impossible by giving the circuit court only 30 days after the record is filed to decide the case.
But this is no appeal at all. Under the rules that govern appeals, the 30 day period is only long enough to allow one side to file its brief. In fact, appeals can take up to a year to be resolved and frequently do. The appellate rules allow time for both sides to brief the case and, after that is concluded, the appellate court has by statute 270 days to decide the case. In other words, meaningful appellate review by the Hinds County Circuit Court could easily last a year, and when completed would be subject to yet another review in the Supreme Court. And the Hinds County Circuit Court already requires extra judges to keep up with its work.
Even worse, there is no authority in the Mississippi Constitution for anyone other than the electorate to permanently fill a judicial office at any level. When a judge dies or resigns, the governor appoints a replacement but it is only to fill out the unexpired term. When a judge remains in office but cannot sit on a particular case then either the parties agree on a substitute or the governor makes an appointment.
In 1989, a member of the Supreme Court drafted, and the legislature passed, a law giving the chief justice of the Supreme Court the authority to appoint a substitute judge when one is needed for a particular case. Since then, the chief justices have made many appointments. But the constitutionality of those appointments rests on the fact that the parties and the governor have accepted the appointments. The legislation gives the parties the power to object and the governor the power to override the appointment, but they have not done so.
It is easy to see how this practice, and the wisdom with which the chief justices have exercised this power, could lead a legislator to believe that the power could be extended to other circumstances, including the Capital Improvement District court. But it cannot.
House Bill 1020 is a very bad idea. If passed, it will cause the state to spend millions of dollars to create a court that will not solve the sponsors’ objective of circumventing elected judges in Hinds County and will almost certainly be declared, along with any rulings it may have issued, to be unconstitutional, null and void.
Luther Munford is a Northsider. He chaired Gov. Ray Mabus’ judicial nominating committee in 1988-92.
