Tuesday, March 14, 2023

Mississippi seeks to appoint some judges in violation of state constitution

 Luther Mumford writes in The Northside Sun:

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.

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