MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary

By: Senator(s) Robertson

AN ACT TO CREATE THE JUDICIAL NOMINATING COMMISSION; TO PROVIDE THAT THE GOVERNOR SHALL FILL ANY VACANCY IN AN OFFICE OF THE SUPREME COURT OR THE COURT OF APPEALS BY APPOINTMENT OF ONE PERSON NOMINATED BY THE JUDICIAL NOMINATING COMMISSION; TO PROVIDE FOR THE APPOINTMENT OF THE MEMBERS OF THE JUDICIAL NOMINATING COMMISSION; TO PROVIDE THE TERMS OF THE COMMISSION MEMBERS; TO PROVIDE FOR REIMBURSEMENT AND ADMINISTRATIVE ASSISTANCE; TO PRESCRIBE THE POWERS OF THE JUDICIAL NOMINATING COMMISSION; TO PRESCRIBE THE METHOD OF ACTING OF THE COMMISSION; TO PRESCRIBE THE DEGREE TO WHICH THE COMMISSION IS SUBJECT TO THE OPEN MEETINGS LAW; TO PRESCRIBE THE SUBMISSION OF NAMES TO THE GOVERNOR; TO CREATE THE COMMISSION ON APPELLATE JUDICIAL PERFORMANCE EVALUATION, THE APPOINTMENT OF THOSE COMMISSIONERS, THEIR TERMS AND METHODS OF OPERATION; TO PRESCRIBE THE POWERS AND DUTIES OF THE COMMISSION; TO PROVIDE ADMINISTRATIVE ASSISTANCE; TO ENACT IMMUNITY FOR THE MEMBERS OF THE COMMISSION; TO AMEND SECTION 23-15-973, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THIS ACT; TO AMEND SECTION 23-15-991, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR A RETENTION ELECTION AT THE END OF AN INCUMBENT'S TERM; TO AMEND SECTIONS 23-15-993 AND 23-15-995, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; TO AMEND SECTION 23-15-369, MISSISSIPPI CODE OF 1972, TO PROVIDE THE FORM OF BALLOT IN A RETENTION ELECTION; TO AMEND SECTION 23-15-807, MISSISSIPPI CODE OF 1972, TO REQUIRE REPORTING OF ALL CONTRIBUTIONS TO ANY CANDIDATE FOR RETENTION AS JUDGE OF THE SUPREME COURT OR COURT OF APPEALS; TO AMEND SECTIONS 23-15-975 AND 23-15-977, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Nomination and appointment. The Governor shall fill any vacancy in an office of the Supreme Court justice or the Court of Appeals judge by appointing one (1) person nominated by the Judicial Nominating Commission. The Judicial Nominating Commission shall nominate no more than five (5) nor less than two (2) most qualified persons for each vacancy.

SECTION 2. Judicial Nominating Commission. The Judicial Nominating Commission shall consist of eleven (11) members. Three (3) attorney members, each a resident of separate Supreme Court districts, shall be selected for four-year terms by The Mississippi Bar, except as provided by Section 3. Four (4) lay members shall be appointed for four-year terms, except as provided in Section 3. The Governor shall appoint one (1) member to represent the state at large, the Lieutenant Governor shall appoint one (1) member who shall reside in Supreme Court District 1, the Attorney General shall appoint one (1) member who shall reside in Supreme Court District 2, and the Speaker of the House shall appoint one (1) member who shall reside in Supreme Court District 3. Appointments to the commission shall be made without regard to political affiliation. All appointing authorities shall make reasonable efforts to ensure that the commission substantially reflects the gender, ethnic and racial diversity of the state. Vacancies shall be filled for an unexpired term in like manner. No member of the nominating commission may hold any other office under the United States, the state or other governmental entity for which monetary compensation is received. No member shall be eligible for appointment to a state judicial office so long as he or she is a commission member, nor serve for more than two (2) full terms as a member of the nominating commission.

SECTION 3. Terms of initial commission members. The initial members of the Judicial Nominating Commission shall serve for terms as follows: the three (3) attorney members for one (1), two (2) and three (3) years, respectively; terms of the lay members shall be one (1) year for the member appointed by the Attorney General, two (2) years for the member appointed by the Lieutenant Governor, three (3) years for the member appointed by the Speaker of the House, and four (4) years for the member appointed by the Governor.

SECTION 4. Reimbursement and administrative assistance. (1) Members of the Judicial Nominating Commission shall be reimbursed for all actual and necessary expenses incurred in the carrying out of their official duties.

(2) The Administrative Office of Courts shall make staff, equipment and materials available to assist the commission in carrying out its official duties.

SECTION 5. Powers of the Judicial Nominating Commission. The Judicial Nominating Commission shall have the power to adopt any rules and procedures which aid in its selection of the most qualified nominees for judicial office.

SECTION 6. Vacancies. Within sixty (60) days of the occurrence a vacancy, the Judicial Nominating Commission shall meet and submit to the Governor a list of no more than five (5) nor less than two (2) persons qualified for the judicial office.

SECTION 7. Quorum. The commission cannot act unless a quorum exists. A quorum consists of a majority of the commission.

SECTION 8. Chair. The commission shall choose one (1) of its members as chair and establish the chair's term. The chair shall preside at all meetings. When the chair is absent, the commission shall choose a member to act as temporary chair.

SECTION 9. Publicity. When knowledge of a judicial vacancy occurs by written notice from the Governor or when it is known that a vacancy will occur at a definite date, the chair shall publicize the vacancy and solicit the submission of qualified individuals by press release to the media and posting in the courthouses of the district.

SECTION 10. Open meetings. (1) All organizational meetings of the Judicial Nominating Commission shall be open to the public. A notice outlining the topics to be discussed should be given to the public seventy-two (72) hours prior to the meeting. Public participation should be encouraged at each organizational meeting. An "organizational meeting" is an initial meeting to discuss the commission's procedures and requirements for the vacancy.

(2) All final deliberations of the Judicial Nominating Commission shall be secret and confidential.

(3) The confidentiality of other proceedings of the Judicial Nominating Commission shall be determined by commission rule.

SECTION 11. Submitting names of nominees to the Governor. (1) The names of nominees shall be submitted to the Governor in alphabetical order within sixty (60) days after written notice from the Governor of a vacancy.

(2) A confidential memorandum may accompany the list of nominees and may state objective facts concerning each of the nominees listed.

(3) Upon submission of the names to the Governor, the Governor shall make the names public and public comment shall be encouraged.

(4) If the Judicial Nominating Commission does not furnish a list of nominees to the Governor within sixty (60) days of written notice of a vacancy, the Governor may appoint any qualified licensed attorney to the vacancy.

(5) If the Governor does not make an appointment from the list of nominees within thirty (30) days of receiving the list, then the Lieutenant Governor will make the appointment from the same list.

SECTION 12. Commission on appellate judicial performance evaluation. The periodic evaluation of appellate judges subject to retention shall be conducted by the Commission on Appellate Judicial Performance Evaluation. The appointment of commissioners and activities and operations of the commission shall be governed by the following provisions:

(1) Appointment of commissioners: The commission shall consist of nine (9) members appointed as follows: six (6) lay members, two (2) from each Supreme Court district, appointed by the Governor; and three (3) attorney members, one (1) from each Supreme Court district, appointed by the Supreme Court from a list provided by the State Bar Board of Governors. All appointing authorities shall make reasonable efforts to ensure that the commission substantially reflects the gender, ethnic and racial diversity of the jurisdiction.

(a) A commissioner shall perform his or her duties in an impartial and objective manner.

(b) A commissioner is disqualified from taking any action with respect to a judge who is a family member within the third degree of consanguinity, or a judge who was a commissioner's business associate, attorney or client within the preceding five (5) years.

(c) A commissioner shall disclose to the full commission any relationship with a reviewed justice or judge, whether business, personal or attorney-client, or any other cause for conflict of interest, and the commission shall determine whether a commissioner shall be disqualified.

(d) A commissioner shall promptly report to the full commission any information conveyed to him or her concerning any judicial officer under review. The commissioner also shall promptly report to the full commission any attempt by any person or organization to influence him or her other than by fact or opinion.

(2) Terms. All members of the commission shall serve terms of four (4) years except that, of those first appointed, three (3) lay members and two (2) attorneys shall serve for a term of three (3) years. No lay or attorney member may serve more than two (2) terms. Vacancies on the commission shall be filled by the original appointing authority.

(3) Chair and Vice-Chair. Commission members shall elect a chair and a vice-chair every two (2) years. The chair shall preside at all meetings of the commission and shall be the designated spokesperson for the commission. In the absence of the chair, the vice-chair shall preside.

(4) Powers and duties of the commission. The powers and duties of the commission shall be as follows:

(a) To develop techniques for evaluating all justices and judges subject to retention on relevant performance criteria, which include, but are not limited to: integrity; impartiality; judicial temperament; knowledge and understanding of substantive and procedural communication skills; preparation; attentiveness and control over judicial proceedings; docket management and prompt case disposition; administrative skills; punctuality; and effectiveness working with other participants in the judicial process.

(b) To develop performance evaluation surveys of lawyers, jurors, peers, chief judges, court personnel and others who have direct and continuing contact with justices and judges;

(c) To develop uniform statewide evaluation criteria, forms and procedures;

(d) To consult with trial court commissions on evaluation criteria, techniques and sources;

(e) To subpoena witnesses and hire agents;

(f) To request public comment on the performance of appellate justices and judges;

(g) To produce and distribute to the public no later than sixty (60) days before the election pertinent information concerning each appellate justice or judge subject to retention.

(h) To promulgate rules necessary to implement the provisions of this legislation.

SECTION 13. Recommendations on retention of justices and judges. (1) The State Appellate Commission shall conduct an evaluation of each justice of the Supreme Court and each judge of the Court of Appeals who is subject to retention. Evaluations shall be completed and a narrative profile prepared for communication to the justice or judge no later than thirty (30) days prior to the last day on which a justice or judge can declare his or her intent to stand for retention. The appellate justice or judge shall have the opportunity to meet with the appropriate commission or otherwise respond to the evaluation no later than ten (10) days following receipt of such evaluation. If such a meeting is held or response is made, the commission may revise its evaluation.

(2) After the requirement in subsection (1) is met, the commission shall compile a narrative summary of the evaluation findings, and shall make a recommendation to the public regarding the justice or judge subject to retention. The recommendation shall be stated as "retain," "do not retain," or "no opinion." A no opinion recommendation shall be made only when a commission concludes that there is insufficient reliable information to make a firm recommendation and shall be accompanied by a detailed explanation.

SECTION 14. Administrative assistance. (1) The Administrative Office of Courts shall staff and provide other assistance to the State Appellate Commission in carrying out its duties.

(2) Commission members shall receive no compensation, but shall be reimbursed for actual and necessary expenses incurred in carrying out their official duties.

SECTION 15. Privilege and immunity. All documents and information obtained by or submitted to the commission and all results of judicial evaluations are absolutely privileged and no lawsuit predicated thereon may be brought. Statements made to the commission are absolutely privileged; provided, however, that this absolute privilege does not apply to statements made in any other forum. Members of the committee and staff shall be immune from suit and liability for any conduct in the course of their duties.

SECTION 16. Section 23-15-973, Mississippi Code of 1972, is amended as follows:

23-15-973. It shall be the duty of the judges of the circuit court to give a reasonable time and opportunity to the candidates for the office of judge of the * * * circuit judge and chancellor to address the people during court terms. In order to give further and every possible emphasis to the fact that the said judicial offices are not political but are to be held without favor and with absolute impartiality as to all persons, and because of the jurisdiction conferred upon the courts by this chapter, the judges thereof should be as far removed as possible from any political affiliations or obligations. It shall be unlawful for any candidate for any of the offices mentioned in this section to align himself with any candidate or candidates for any other office or with any political faction or any political party at any time during any primary or general election campaign. Likewise it shall be unlawful for any candidate for any other office nominated or to be nominated at any primary election, wherein any candidate for any of the judicial offices in this section mentioned, is or are to be nominated, to align himself with any one or more of the candidates for said offices or to take any part whatever in any nomination for any one or more of said judicial offices, except to cast his individual vote. Any candidate for any office, whether nominated with or without opposition, at any primary wherein a candidate for any one of the judicial offices herein mentioned is to be nominated who shall deliberately, knowingly and willfully violate the provisions of this section shall forfeit his nomination, or if elected at the following general election by virtue of said nomination, his election shall be void.

SECTION 17. Section 23-15-991, Mississippi Code of 1972, is amended as follows:

23-15-991. The term of office of judges of the Supreme Court shall be eight (8) years. Concurrently with the regular election for representatives in Congress, held next preceding the expiration of the term of an incumbent, and likewise each eighth year thereafter, an election shall be held in the Supreme Court district from which such incumbent was selected or appointed to submit the name to the voters eligible to vote within his district as to whether he shall be retained in office. If a majority of those voting on the question vote to retain the incumbent, he shall begin a new term of office at the expiration of his current term. If a majority of those voting on the question vote against retaining him in office, the vacancy shall be filled as provided by Section 144A, Mississippi Constitution of 1890.

SECTION 18. Section 23-15-993, Mississippi Code of 1972, is amended as follows:

23-15-993. For the purpose of all elections, each of the nine (9) judgeships of the Supreme Court shall be considered a separate office. The three (3) offices in each of the three (3) Supreme Court districts shall be designated Position Number 1, Position Number 2 and Position Number 3, and * * * each incumbent shall state the position number of the office he wishes to retain and the ballot shall so indicate. In Supreme Court District Number 1: Position Number 1 shall be that office for which the term ends in January 1966; Position Number 2 shall be that office for which the term ends in January 1965; and Position Number 3 shall be that office for which the term ends in January 1969. In District Number 2: Position Number 1 shall be that office for which the term ends in January 1972; Position Number 2 shall be that office for which the term ends in January 1969; and Position Number 3 shall be for that office for which the term ends in January 1973. In District Number 3: Position Number 1 shall be that office for which the term ends in January 1969; Position Number 2 shall be that office for which the term ends in January 1969; and Position Number 3 shall be that office for which the term ends in January 1965.

SECTION 19. Section 23-15-995, Mississippi Code of 1972, is amended as follows:

23-15-995. Except as may be otherwise provided * * *, the general laws for the election of state officers shall apply to and govern the retention of judges of the Supreme Court.

SECTION 20. Section 23-15-369, Mississippi Code of 1972, is amended as follows:

23-15-369. (1)(a) Whenever a constitutional amendment is submitted to the vote of the people, the substance of such amendment shall be printed in clear and unambiguous language on the ballot after the list of candidates, if any, followed by the word "YES" and also by the word "NO", and shall be styled in such a manner that a "YES" vote will indicate approval of the proposal and a "NO" vote will indicate rejection.

(b) The substance of the amendment shall be an explanatory statement not exceeding seventy-five (75) words in length of the chief purpose of the measure. Such statement shall be prepared by the Legislature and included in the concurrent resolution proposing the amendment to the Constitution. The statement shall avoid, whenever possible, the use of legal terminology or jargon and shall use instead, simple, ordinary, everyday language. The Secretary of State shall give each proposed constitutional amendment a designating number for convenient reference. This number designation shall appear on the ballot. Designating numbers shall be assigned in the order of filing or certification of the amendments. The Secretary of State shall furnish the designating number and the substance of each amendment to the circuit clerk of each county in which such amendment is to be voted on.

(c) The full text of each proposed constitutional amendment shall be published by the Secretary of State as provided for in Section 7-3-39, Mississippi Code of 1972, and shall be posted prominently in all polling places, with copies of said proposed amendment to be otherwise available at each polling place.

(2) Except as may be otherwise provided in subsection (1) of this section, whenever any public measure, question or matter that requires an affirmative or negative vote is submitted to a vote of the electors, the measure or matter shall be printed on the ballot and also the words "FOR" or "AGAINST" to be so arranged by the proper officer so that the voter can intelligently vote his preference.

23-15-369. (1)(a) Whenever a constitutional amendment is submitted to the vote of the people, the substance of such amendment shall be printed in clear and unambiguous language on the ballot after the list of candidates, if any, followed by the word "YES" and also by the word "NO", and shall be styled in such a manner that a "YES" vote will indicate approval of the proposal and a "NO" vote will indicate rejection.

(b) The substance of the amendment shall be an explanatory statement not exceeding seventy-five (75) words in length of the chief purpose of the measure. Such statement shall be prepared by the Legislature and included in the concurrent resolution proposing the amendment to the Constitution. The statement shall avoid, whenever possible, the use of legal terminology or jargon and shall use instead, simple, ordinary, everyday language. The Secretary of State shall give each proposed constitutional amendment a designating number for convenient reference. This number designation shall appear on the ballot. Designating numbers shall be assigned in the order of filing or certification of the amendments. The Secretary of State shall furnish the designating number and the substance of each amendment to the circuit clerk of each county in which such amendment is to be voted on.

(c) The full text of each proposed constitutional amendment shall be published by the Secretary of State as provided for in Section 7-3-39, Mississippi Code of 1972, and shall be posted prominently in all polling places, with copies of said proposed amendment to be otherwise available at each polling place.

(2) Except as may be otherwise provided in subsection (1) of this section, whenever any public measure, question or matter that requires an affirmative or negative vote is submitted to a vote of the electors, the measure or matter shall be printed on the ballot and also the words "FOR" or "AGAINST" to be so arranged by the proper officer so that the voter can intelligently vote his preference.

(3) Whenever any judge shall stand for retention election, the ballot shall be printed as required by the Mississippi Constitution of 1890 and by law.

SECTION 21. Section 23-15-807, Mississippi Code of 1972, is amended as follows:

23-15-807. (a) Each candidate or political committee shall file reports of contributions and disbursements in accordance with the provisions of this section. All candidates or political committees required to report may terminate its obligation to report only upon submitting a final report that it will no longer receive any contributions or make any disbursement and that such candidate or committee has no outstanding debts or obligations. The candidate, treasurer or chief executive officer shall sign each such report.

(b) Candidates who are seeking election, or nomination for election, and political committees that make expenditures for the purpose of influencing or attempting to influence the action of voters for or against the nomination for election, or election, of one or more candidates or balloted measures at such election, shall file the following reports:

(i) In any calendar year during which there is a regularly scheduled election, a preelection report, which shall be filed no later than the seventh day before any election in which such candidate or political committee has accepted contributions or made expenditures and which shall be complete as of the tenth day before such election;

(ii) In 1987 and every fourth year thereafter, periodic reports, which shall be filed no later than the tenth day after May 31, June 30, September 30 and December 31, and which shall be complete as of the last day of each period; and

(iii) In any calendar years except 1987 and except every fourth year thereafter, a report covering the calendar year which shall be filed no later than January 31 of the following calendar year.

(c) Contents of reports. Each report under this article shall disclose:

(i) For the reporting period and the calendar year, the total amount of all contributions and the total amount of all expenditures of the candidate or reporting committee required to be identified pursuant to item (ii) of this paragraph. Such reports shall be cumulative during the calendar year to which they relate;

(ii) The identification of:

1. Each person or political committee who makes a contribution to the reporting candidate or political committee during the reporting period, whose contribution or contributions within the calendar year have an aggregate amount or value in excess of Two Hundred Dollars ($200.00) when made to a political committee or to a candidate for an office other than statewide office or office elected by Supreme Court district, or in excess of Five Hundred Dollars ($500.00) when made to a candidate for statewide office or office elected by Supreme Court district, or in the case of any candidate for election or retention to the office of judge of the Supreme Court or the Court of Appeals, each person or political committee who makes any contribution to the reporting candidate or political committee during the reporting period, together with the date and amount of any such contribution;

2. Each person or organization who receives an expenditure or expenditures from the reporting candidate or political committee during the reporting period when the expenditure or expenditures to such person or organization within the calendar year have an aggregate value or amount in excess of Two Hundred Dollars ($200.00) when received from a political committee or candidate for an office other than statewide office or office elected by Supreme Court district, or in excess of Five Hundred Dollars ($500.00) when received from a candidate for statewide office or office elected by Supreme Court district, together with the date and amount of such expenditure.

(d) Notwithstanding any provision of this section to the contrary, a political committee that receives more than fifty percent (50%) of its contributions from persons or political committees domiciled outside of the State of Mississippi shall not be required to identify contributors who are domiciled outside of the State of Mississippi.

SECTION 22. Section 23-15-975, Mississippi Code of 1972, is amended as follows:

23-15-975. (1) As used in Sections 23-15-974 through 23-15-985 of this subarticle, the term "judicial office" includes the office of * * * circuit judge, chancellor, county court judge and family court judge.

(2) All judicial offices, as well as the office of Supreme Court judge and judge of the Court of Appeals, shall be full-time positions and such justices and judges shall not engage in the practice of law before any court, administrative agency or other judicial or quasi-judicial forum except as provided by law for finalizing pending cases after election to judicial office.

SECTION 23. Section 23-15-977, Mississippi Code of 1972, is amended as follows:

23-15-977. (1) All candidates for judicial office as defined in Section 23-15-975 of this subarticle shall file their intent to be a candidate with the proper officials not later than the first Friday after the first Monday in May prior to the general election for judicial office and shall pay to the proper officials the following amounts:

(a) Candidates for circuit judge and chancellor, the sum of One Hundred Dollars ($100.00).

(b) Candidates for county judge and family court judge, the sum of Fifteen Dollars ($15.00).

(2) Candidates for judicial offices listed in paragraph (a) * * * of subsection (1) of this section shall file their intent to be a candidate with, and pay the proper assessment made pursuant to subsection (1) of this section to, the State Board of Election Commissioners.

(3) Candidates for judicial offices listed in paragraph (b) of subsection (1) of this section shall file their intent to be a candidate with, and pay the proper assessment made pursuant to subsection (1) of this section to, the circuit clerk of the proper county. The circuit clerk shall notify the county commissioners of election of all persons who have filed their intent to be a candidate filed with, and paid the proper assessment to, such clerk. Such notification shall occur within two (2) business days and shall contain all necessary information.

SECTION 24. The Attorney General of the State of Mississippi is hereby directed to submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.

SECTION 25. This act shall take effect and be in force from and after January 1, 1998, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, or the date that the amendments to the Mississippi Constitution of 1890 as proposed by Senate Concurrent Resolution No. 528, 1997 Regular Session, is certified by the Secretary of State as having been ratified by the people, whichever is later.