MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Fees and Salaries of Public Officers; County Affairs

By: Representative Frierson

AN ACT TO REQUIRE CLERKS OF THE JUSTICE COURTS TO BE COMPENSATED ON A FEE BASIS; TO AMEND SECTION 25-7-25, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE FEES ESTABLISHED FOR SERVICES IN THE JUSTICE COURTS SHALL BE PAYABLE TO THE CLERKS OF SUCH COURTS; TO AMEND SECTION 9-11-18, MISSISSIPPI CODE OF 1972, TO ESTABLISH A CAP ON THE ANNUAL COMPENSATION FROM FEES FOR CLERKS OF THE JUSTICE COURT, TO SPECIFY WHICH FEES ARE SUBJECT TO THE CAP AND TO REQUIRE THE JUSTICE COURT CLERK TO MAINTAIN A CASH JOURNAL FOR SMALL FEE TRANSACTIONS; TO AMEND SECTION 9-11-27, MISSISSIPPI CODE OF 1972, TO REQUIRE BOARDS OF SUPERVISORS TO PAY A SALARY TO THE CLERK OF THE JUSTICE COURT WHEN INSUFFICIENT FEES ARE COLLECTED BY THE CLERK; TO AMEND SECTIONS 9-11-19, 9-11-20, 9-11-23 AND 25-3-36, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; TO BRING FORWARD SECTIONS 9-11-21 AND 9-11-27, MISSISSIPPI CODE OF 1972, WHICH PRESCRIBE THE DUTIES OF THE CLERK OF THE JUSTICE COURT RELATING TO ITEMIZED RECEIPTS AND TRAINING REQUIREMENTS; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 25-7-25, Mississippi Code of 1972, is amended as follows:

25-7-25.  (1) * * * The justice court clerks shall charge the following costs and fees, which shall be paid in advance to the clerk of the justice court in accordance with * * * Section 9-11-10:

(a) A uniform total fee in all civil cases, whether contested or uncontested, which shall include all services in connection therewith, except as hereinafter stated, each $25.00

(b) For more than one (1) defendant, for service of process on each defendant 5.00

(c) After final judgment has been enrolled, further proceedings involving levy of execution on judgments, and attachment and garnishment proceedings 15.00

(d) For all services in connection with the issuance of a peace bond 25.00

(e) For celebrating a marriage, and certificate

thereof 10.00

(f) Commission to take depositions 5.00

(g) Appeal with proceedings and bond 5.00

(h) A * * * fee to be collected in all criminal cases in which the defendant is convicted, as follows:

(i) For all violations in Title 63 other than driving under the influence of intoxicating liquor or reckless driving 5.00

(ii) All other criminal cases 25.00

(2) In addition to the salary provided for in subsection (1) of Section 25-3-36, each justice court judge may receive a fee of not more than Twenty-five Dollars ($25.00) for each marriage ceremony he performs in the courtroom or offices of the justice court at any time the courtroom or offices are open to the public. This fee shall be paid by the parties to the marriage. Each justice court judge may receive money or gratuities for marriage ceremonies performed outside of and away from the courtroom and the offices of the justice court, that the parties to the marriage request to have performed at any time the courtroom or offices of the justice court are closed. These monies or gratuities, in an amount agreed upon by the parties to the marriage, are not considered fees for the justice court and are not subject to the requirements set forth in * * * Section 9-11-10.

SECTION 2. Section 9-11-18, Mississippi Code of 1972, is amended as follows:

9-11-18. (1) After making deductions for employee salaries and related salary expenses, and expenses allowed as deductions by Schedule C of the Internal Revenue Code, no clerk of the justice court system of any county in the state shall receive fees as compensation for the justice court clerk's services in excess of Eighty-three Thousand One Hundred Sixty Dollars ($83,160.00) annually. All such fees received during a calendar year by the justice court clerk which are in excess of the salary limitation shall be deposited by such clerk into the county general fund before April 15 of the next succeeding calendar year. If the justice court clerk serves less than one (1) year, then he shall not receive as compensation any fees in excess of that portion of the salary limitation that can be attributed to his time in office on a pro rata basis. There shall be exempted from this subsection any monies or commissions from private or governmental sources which: (a) are to be held by the justice court clerk in a trust or custodial capacity as prescribed in subsection (4); or (b) are received as compensation for services performed upon order of a court or board of supervisors which are not required of the justice court clerk by statute.

(2) It shall be unlawful for any justice court clerk to use fees in excess of Eighty-three Thousand One Hundred Sixty Dollars ($83,160.00) annually to pay the salaries or actual or necessary expenses of employees who are related to such clerk by blood or marriage within the first degree of kinship according to the civil law method of computing kinship as provided in Sections 1-3-71 and 1-3-73. However, the prohibition of this subsection shall not apply to any individual who was an employee of the clerk's office before the date his or her relative was employed as justice court clerk. The spouse or children, or both, of the justice court clerk employed in the office of the justice court clerk may be paid a salary; however, the combined annual salaries of the clerk, spouse and any child of the clerk may not exceed an amount equal to the salary limitation.

(3) The justice court clerk shall be liable on his official bond for the proper deposit and accounting of all monies received by his office. The State Auditor shall promulgate uniform accounting methods for the accounting of all sources of income by the offices of the justice court clerk.

(4) There is * * * created in the county depository of each county a clearing account to be designated as the "Justice Court Clerk Clearing Account," into which shall be deposited: (a) all such monies as the clerk of the justice court shall receive from any person complying with any writ of garnishment, attachment, execution or other like process authorized by law for the enforcement of a judgment; (b) all such monies as are received in criminal cases in the justice court pursuant to any order requiring payment as restitution to the victims of criminal offenses; (c) all cash bonds as shall be deposited with the court; (d) any portion of any fees required by law to be collected in civil cases which are to pay for the service of process or writs in another county as provided by Section 9-11-20; and (e) any other money as shall be deposited with the court, except fees paid for the services of a constable, which by its nature is not at the time of its deposit public monies, but which is to be held by the court in a trust or custodial capacity in a case or proceeding before the court. The clerk of the justice court shall account for all monies deposited in and disbursed from such account and shall be authorized and empowered to draw and issue checks on such account at such times, in such amounts and to such persons as shall be proper and in accordance with law; * * * however, such monies as are forfeited in criminal cases shall be paid by the clerk of the justice court to the clerk of the board of supervisors for deposit in the general fund of the county in the same manner as provided in Section 9-11-19 for * * * fines and penalties charged and collected in the justice court.

The following monies paid to the justice court clerk shall be subject to the salary limitation prescribed under subsection (1): (a) all fees required by law to be collected for the filing, recording or abstracting of any bill, petition, pleading or decree in any civil case in the justice court; (b) all fees collected for bonds, certification of decrees and copies of any documents; and (c) any other monies or commissions from private or governmental sources for statutory functions which are not to be held by the court in a trust capacity. Such fees that exceed the salary limitations shall be maintained in a bank account in the county depository and accounted for separately from those monies paid into the Justice Court Clerk Clearing Account.

(5) Any monies deposited with the court in civil cases which are fees paid for the services of a constable shall be reported by the clerk of the court in the same manner as provided by Section 9-11-19 and shall be considered as being fees within the meaning of such section. It shall be the duty of the clerk of the board of supervisors to disburse such fees monthly, upon approval of the board of supervisors, to the constables entitled thereto.

(6) The justice court clearing account may bear interest and the clerk of the justice court shall account for all interest earned on such account and pay such interest to the clerk of the board of supervisors for deposit in the general fund of the county in the same manner as provided in Section 9-11-19 for * * * fines and penalties charged and collected in the justice court.

(7) The justice court clerk shall establish and maintain a cash journal for recording cash receipts from private or government sources for furnishing copies of any papers of record or on file, or for rendering services as a notary public, or other fees wherein the total fee for the transaction is Ten Dollars ($10.00) or less. The cash journal entry shall include the date, amount and type of transaction, and the clerk shall not be required to issue a receipt to the person receiving such services. The State Auditor shall not take exception to the furnishing of copies or the rendering of services as a notary by any clerk free of charge.

(8) Any clerk who knowingly shall fail to deposit funds or otherwise violate this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined in an amount not to exceed double the amount that he failed to deposit, or imprisoned for not to exceed six (6) months in the county jail, or be punished by both such fine and imprisonment.

SECTION 3. Section 9-11-27, Mississippi Code of 1972, is amended as follows:

9-11-27. (1) The board of supervisors of each county shall * * * appoint one (1) person to serve as clerk of the justice court system of the county. The clerk of the justice court may appoint such other employees for the justice court of the county as he deems necessary, including a person or persons to serve as deputy clerk or deputy clerks. The board of supervisors of each county with two (2) judicial districts may * * * appoint a person to serve as a deputy clerk of the justice court system of the county in the judicial district not served by the clerk. The clerk may appoint such other employees for the justice court system of the county as he deems necessary * * * . The clerk and deputy clerks shall be empowered to file and record actions and pleadings, to receive and receipt for monies, to acknowledge affidavits, to issue warrants in criminal cases upon direction by a justice court judge in the county, to approve the sufficiency of bonds in civil and criminal cases, to certify and issue copies of all records, documents and pleadings filed in the justice court and to issue all process necessary for the operation of the justice court. The clerk or deputy clerks may refuse to accept a personal check in payment of any fine or cost or to satisfy any other payment required to be made to the justice court clerk. All orders from the justice court judge to the clerk of the justice court shall be written. All cases, civil and criminal, shall be assigned by the clerk to the justice court judges of the county in the manner provided in Section 11-9-105 and Section 99-33-2.

(2) The clerk of the justice court shall be entitled to those fees and costs required to be paid to the clerk by law, subject to the limitation prescribed in Section 9-11-18. However, any clerk who does not receive Twenty-five Thousand Dollars ($25,000.00) or more in fees and costs after making deductions for employee salaries and related salary expenses, and expenses allowed as deductions by Schedule C of the Internal Revenue Code, during a calendar year shall be paid by the board of supervisors of the county such amount that, when added to the fees and costs collected by the clerk, equals no less than Twenty-five Thousand Dollars ($25,000.00). The clerk shall certify this amount to the board of supervisors before February 1 of the next succeeding calendar year, which shall pay to the clerk the amount certified as being due before March 1.

(3) For each employee and deputy clerk of the justice court employed by the board of supervisors of the county, the board of supervisors shall pay to the clerk of the justice court an amount equal to the salary of the employee or deputy clerk. All other employees and deputy clerks of the justice courts shall be paid from the fees and costs collected by the clerk of the justice court.

SECTION 4. Section 9-11-19, Mississippi Code of 1972, is amended as follows:

9-11-19. (1) It shall be the duty of every clerk of the justice court to receive and account for all * * * fines and penalties charged and collected in the justice court, and, monthly, to report in writing under oath, to the clerk of the board of supervisors, who shall upon receipt submit such report to the board of supervisors of all such * * * fines and penalties received, including cash bonds and other monies which have been forfeited in criminal cases and, at least semiannually, any delinquent fines and penalties. The clerk shall give the date, amount and names of persons from whom such monies were received and shall pay so much thereof as shall have been received to the clerk of the board of supervisors for deposit into the general fund of the county. Any clerk of the justice court who * * * fails to make such report or to pay the money so received shall, in addition to any other fine or punishment provided by law for such conduct, not be entitled to any compensation to which the clerk may be entitled from the county for the period of time during which such report or money is outstanding.

(2) The provisions of this section shall not, except as to cash bonds and other monies which have been forfeited in criminal cases, apply to monies required to be deposited in the Justice Court Clerk Clearing Account as provided in Section 9-11-18.

SECTION 5. Section 9-11-20, Mississippi Code of 1972, is amended as follows:

9-11-20. In any civil case in the justice court in which any process or writ is to be served outside of the county where issued, the clerk of the justice court is * * * directed to forward, by United States mail, to the clerk of the justice court of the county where such writ or process is to be served, that portion of any fees required by law to be collected for the service of such process or writ along with the process or writ to be served. The clerk of the justice court of the county where the process or writ is to be served shall, upon receipt thereof, deliver such process or writ to a constable of the county for the service thereof and shall report and pay over such fees to the * * * clerk of the board of supervisors at the time and in the manner provided in subsection (1) of Section 9-11-19 for the report and payment of * * * fines and penalties charged and collected in the justice court.

SECTION 6. Section 9-11-23, Mississippi Code of 1972, is amended as follows:

9-11-23. When any clerk of the justice court shall have collected in his official capacity any money, fines or penalties required by law to be paid over to another person or official, and the clerk fails to pay or account for the same to the person or official entitled to receive the same, he shall be liable to be proceeded against on his official bond in a summary way by motion in any court having jurisdiction of the amount collected and withheld, of which motion five (5) days' notice shall be served on the clerk of the justice court and the sureties on his bond, or such of them as may be found; and judgment for the amount illegally withheld by the clerk of the justice court and ten percent (10%) thereon, and all costs, shall be rendered against the clerk of the justice court and his sureties, or such of them as have been served with notice.

SECTION 7. Section 25-3-36, Mississippi Code of 1972, is amended as follows:

25-3-36. (1) From and after October 1, 1998, every justice court judge shall receive as full compensation for his or her services and in lieu of any and all other fees, costs or compensation heretofore authorized for such justice court judge, an annual salary based upon the population of his or her county according to the 1990 federal decennial census; however, no justice court judge shall be paid less than the salary authorized under this section to be paid the justice court judge based upon the population of the county according to the 1980 federal decennial census. The amount of the salary shall be * * * as follows:

(a) In counties with a population of more than two hundred thousand (200,000), a salary of Forty-six Thousand Two Hundred Ninety-nine Dollars ($46,299.00).

(b) In counties with a population of more than one hundred fifty thousand (150,000) but not more than two hundred thousand (200,000), a salary of Forty-two Thousand Five Hundred Four Dollars ($42,504.00).

(c) In counties with a population of more than seventy-five thousand (75,000) but not more than one hundred fifty thousand (150,000), a salary of Thirty-eight Thousand Seven Hundred Nine Dollars ($38,709.00).

(d) In counties with a population of more than forty-nine thousand (49,000) but not more than seventy-five thousand (75,000), a salary of Thirty-three Thousand Three Hundred Ninety-six Dollars ($33,396.00).

(e) In counties with a population of more than thirty-four thousand (34,000) but not more than forty-nine thousand (49,000), a salary of Twenty-eight Thousand Eight Hundred Forty-two Dollars ($28,842.00).

(f) In counties with a population of more than twenty-four thousand five hundred (24,500) but not more than thirty-four thousand (34,000), a salary of Twenty-seven Thousand Three Hundred Twenty-four Dollars ($27,324.00).

(g) In counties with a population of more than twenty-one thousand (21,000) but not more than twenty-four thousand five hundred (24,500), a salary of Twenty-four Thousand Two Hundred Eighty-eight Dollars ($24,288.00).

(h) In counties with a population of more than sixteen thousand five hundred (16,500) but not more than twenty-one thousand (21,000), a salary of Twenty-one Thousand Two Hundred Fifty-two Dollars ($21,252.00).

(i) In counties with a population of more than twelve thousand (12,000) but not more than sixteen thousand five hundred (16,500), a salary of Eighteen Thousand Two Hundred Sixteen Dollars ($18,216.00).

(j) In counties with a population of more than eight thousand (8,000) but not more than twelve thousand (12,000), a salary of Fifteen Thousand Dollars ($15,000.00).

(k) In counties with a population of eight thousand (8,000) or less, a salary of Twelve Thousand Dollars ($12,000.00). The board of supervisors of any county having two (2) judicial districts and two (2) justice court judges for the county shall pay each justice court judge an amount equal to that * * * provided in this subsection for judges in the next higher population category per year, if the justice court judge maintains regular office hours and is personally present in the office he maintains for at least thirty (30) hours per week. In any county having a population greater than eight thousand (8,000) but less than eight thousand five hundred (8,500) according to the 1990 federal decennial census and in which U.S. Highway 61 and Mississippi Highway 4 intersect, the board of supervisors * * *, in its discretion, may pay such justice court judges an additional amount not to exceed the sum of Eleven Thousand Five Hundred Fifty Dollars ($11,550.00) per year, payable beginning April 1, 1997.

In any county having a population greater than ten thousand (10,000) but less than ten thousand five hundred (10,500) according to the 1990 federal decennial census and in which Mississippi Highway 3 and Mississippi Highway 6 intersect, the board of supervisors * * *, in its discretion, may pay such justice court judges an additional amount not to exceed One Thousand Four Hundred Fifty Dollars ($1,450.00) per year, payable beginning April 1, 1997. In any county having a population greater than twenty-four thousand seven hundred (24,700) and less than twenty-four thousand nine hundred (24,900), according to the 1990 federal census, wherein Mississippi Highways 15 and 16 intersect, the board of supervisors shall pay such justice court judge an additional amount equal to Two Thousand Five Hundred Dollars ($2,500.00) per year.

(2) Notwithstanding the provisions of subsection (1) of this section, in the event that the number of justice court judges authorized pursuant to Section 9-11-2(1) is exceeded pursuant to the provisions of Section 9-11-2(4), the aggregate of the salaries paid to the justice court judges of such a county shall not exceed the amount sufficient to pay the number of justice court judges authorized pursuant to Section 9-11-2(1), and such amount shall be equally divided among those justice court judges continuing to hold office under the provisions of Section 9-11-2(4).

(3) From and after the effective date of House Bill No. , 2000 Regular Session, all fees, costs, fines and penalties charged and collected in the justice court shall be paid to the clerk of the justice court. * * * The clerk of the justice court shall deposit all monies required to be deposited in the Justice Court Clerk Clearing Account into such account, as provided in Section 9-11-18.

(4) The salaries provided for in subsection (1) of this section shall be payable monthly by warrant drawn by the clerk of the board of supervisors on the general fund of the county; however, the board of supervisors, by resolution duly adopted and entered on its minutes, may provide that such salaries shall be paid semimonthly on the first and fifteenth day of each month. If a pay date falls on a weekend or legal holiday, salary payments shall be made on the workday immediately preceding the weekend or legal holiday.

(5)  * * * The salary of a justice court judge shall not be reduced during his term of office as a result of a population change following a federal decennial census.

(6) Any justice court judge who is unable to attend and hold court by reason of being under suspension by the Commission on Judicial Performance or the Mississippi Supreme Court shall not receive a salary while under such suspension.

SECTION 8. Section 9-11-21, Mississippi Code of 1972, is brought forward as follows:

9-11-21. The clerk of the justice court is required in all cases to give to any person paying him any fees, costs or other money a uniform receipt, the form of which is to be prepared by the Attorney General. Such receipt shall contain the particulars of such fees, costs or other money, the amount of such fees, costs or other money and such other information as the Attorney General shall deem necessary. The county shall have printed such receipts at county expense and distribute them to the clerk of the justice court of the county. Provided, however, that where the party filing the complaint is an entity of government, the clerk shall not be required to receive a prepayment of costs nor issue a receipt, but the clerk shall enter a notation on the docket wherein said complaint is recorded indicating that the party is exempt from payment of costs.

SECTION 9. Section 9-11-29, Mississippi Code of 1972, is brought forward as follows:

9-11-29. (1) Within ninety (90) days after appointment, every person appointed as clerk of the justice court under the provisions of subsection (2) of Section 9-11-27, shall file annually in the office of the circuit clerk a certificate of completion of a course of training and education conducted by the Mississippi Judicial College of the University of Mississippi Law Center.

(2) Every person appointed as clerk and deputy clerk of the justice court shall, before entering into the duties of the position, give bond, with sufficient surety, to be payable, conditioned and approved as provided by law and in the same manner as other county officers, in a penalty equal to Fifty Thousand Dollars ($50,000.00); and any party interested may proceed on such bond in a summary way, by motion in any court having jurisdiction of the same, against the principal and sureties, upon giving five (5) days' previous notice. The cost of such bond shall be paid by the county.

(3) Upon the failure of any person appointed as clerk of the justice court to file the certificates of completion as provided in subsection (1) of this section, such person shall not be allowed to carry out any of the duties of the office of clerk of the justice court, and shall not be entitled to compensation for the period of time during which such certificates remain unfiled.

SECTION 10. This act shall take effect and be in force from and after October 1, 2000.