MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Judiciary, Division A
By: Senator(s) Robertson
AN ACT TO PROVIDE THAT VACANCIES IN THE OFFICE OF JUDGE OF THE SUPREME COURT AND COURT OF APPEALS SHALL BE FILLED BY APPOINTMENT OF THE GOVERNOR, SUBJECT TO THE ADVICE AND CONSENT OF THE SENATE; TO CREATE NEW SECTION 9-3-4, MISSISSIPPI CODE OF 1972, TO PLACE THE PROVISIONS CONCERNING THE TERMS AND SERVICE OF JUDGES OF THE SUPREME COURT IN THE SUPREME COURT CHAPTER OF THE MISSISSIPPI CODE AND TO PROVIDE THAT VACANCIES ARE FILLED BY APPOINTMENT OF THE GOVERNOR; TO AMEND SECTION 9-1-103, MISSISSIPPI CODE OF 1972, TO CONFORM; TO AMEND SECTION 9-4-5, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT VACANCIES IN THE OFFICE OF JUDGE OF THE COURT OF APPEALS ARE FILLED BY APPOINTMENT OF THE GOVERNOR; TO REPEAL SECTION 9-4-15, MISSISSIPPI CODE OF 1972, WHICH PROVIDES THAT GENERAL ELECTIONS FOR THE OFFICE OF JUDGE OF THE COURT OF APPEALS SHALL BE HELD AT THE SAME TIMES AS GENERAL ELECTIONS FOR CONGRESSIONAL OFFICES; TO AMEND SECTION 23-15-197, MISSISSIPPI CODE OF 1972, TO CONFORM THE TIMES FOR HOLDING OF RETENTION ELECTIONS FOR APPELLATE JUDGES; TO AMEND SECTION 23-15-369, MISSISSIPPI CODE OF 1972, TO SPECIFY THE MANNER IN WHICH RETENTION BALLOTS SHALL BE PRINTED; TO AMEND SECTION 23-15-607, MISSISSIPPI CODE OF 1972, TO SPECIFY THE MANNER IN WHICH THE RESULTS OF A RETENTION ELECTION FOR AN APPELLATE COURT JUDGE IS TO BE CERTIFIED; TO AMEND SECTIONS 23-15-849, 23-15-973, 23-15-975 AND 23-15-977, MISSISSIPPI CODE OF 1972, TO CONFORM; TO AMEND SECTION 23-15-991, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE RETENTION ELECTION AND FORM OF BALLOT FOR RETENTION ELECTIONS IN ORDER FOR AN APPELLATE JUDGE TO SUCCEED HIMSELF; TO AMEND SECTIONS 23-15-993 AND 23-15-995, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 9-3-4, Mississippi Code of 1972:
9-3-4. (1) The term of office of judges of the Supreme Court shall be eight (8) years and shall begin on the first Monday of January of the year in which the prior term expires. Any judge of the Supreme Court holding office or elected thereto on January 1, 2006, shall remain in office for the duration of his term unless he vacates the office or is removed for cause. From and after January 1, 2006, vacancies in the office of justice of the Supreme Court shall be filled by appointment of the Governor, subject to the advice and consent of the Senate.
(2) For the purpose of appointment and election, 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 in qualifying for retention for any office of judge of the Supreme Court, each candidate shall state the position number of the office he wishes to retain and the ballots 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 2. Section 9-1-103, Mississippi Code of 1972, is amended as follows:
9-1-103. (1) Whenever a vacancy shall occur in any judicial office by reason of death of an incumbent, resignation or retirement of an incumbent, removal of an incumbent from office, * * * creation of a new judicial office in which there has not heretofore been an incumbent and for which no election is provided by statute, or failure of an incumbent to prevail in a required retention election, the Governor shall have the authority to appoint a qualified person as follows:
(a) For judicial offices filled by election, the Governor shall appoint a qualified person to fill the vacancy to serve for the unexpired term or until the vacancy is filled by election as provided in Section 23-15-849, Mississippi Code of 1972.
(b) For judicial offices filled by appointment, the Governor shall appoint a qualified person to fill the vacancy to serve for the unexpired term.
(2) When a vacancy shall occur for any of the reasons enumerated in this section, the clerk of the court shall notify the Governor of the vacancy immediately.
SECTION 3. Section 9-4-5, Mississippi Code of 1972, is amended as follows:
9-4-5. (1) (a) The term of office of judges of the Court of Appeals shall be eight (8) years.
(b) An election shall be held on the first Tuesday after the first Monday in November 1994, to elect the ten (10) judges of the Court of Appeals, two (2) from each congressional district; provided, however, judges of the Court of Appeals who are elected to take office after the first Monday of January 2002, shall be elected from the Court of Appeals Districts described in subsection (5) of this section. The judges of the Court of Appeals shall begin service on the first Monday of January 1995.
(c) * * * In order to provide that the offices of not more than a majority of the judges of said court shall become vacant at any one (1) time, the terms of office of six (6) of the judges first to be elected shall expire in less than eight (8) years. For the purpose of all elections of members of the court, each of the ten (10) judges of the Court of Appeals shall be considered a separate office. The two (2) offices in each of the five (5)districts shall be designated Position Number 1 and Position Number 2, and in qualifying for office as a candidate for any office of judge of the Court of Appeals, each candidate shall state the position number of the office to which he aspires and the election ballots shall so indicate.
(d) (i) In the First Court of Appeals District, the judge of the Court of Appeals for Position Number 1 shall be that office for which the term ends in January of 1999, and the judge of the Court of Appeals for Position Number 2 shall be that office for which the term ends in January of 2003.
(ii) Inthe Second Court of Appeals District, the judge of the Court of Appeals for Position Number 1 shall be that office for which the term ends in January of 2003, and the judge of the Court of Appeals for Position Number 2 shall be that office for which the term ends in January of 2001.
(iii) Inthe Third Court of Appeals District, the judge of the Court of Appeals for Position Number 1 shall be that office for which the term ends in January of 2001, and the judge of the Court of Appeals for Position Number 2 shall be that office for which the term ends in January of 1999.
(iv) Inthe Fourth Court of Appeals District, the judge of the Court of Appeals for Position Number 1 shall be that office for which the term ends in January of 1999, and the judge of the Court of Appeals for Position Number 2 shall be that office for which the term ends in January of 2003.
(v) Inthe Fifth Court of Appeals District, the judge of the Court of Appeals for Position Number 1 shall be that office for which the term ends in January of 2003, and the judge of the Court of Appeals for Position Number 2 shall be that office for which the term ends in January of 2001.
(2) No person shall be eligible for the office of judge of the Court of Appeals who has not attained the age of thirty (30) years at the time of his election or appointment and who has not been a practicing attorney and citizen of the state for five (5) years immediately preceding such election or appointment.
(3) Until January 1, 2006:
(a) The laws regulating the general elections shall apply to and govern the elections of judges of the Court of Appeals except as otherwise provided in Sections 23-15-974 through 23-15-985.
(b) In the year prior to the expiration of the term of an incumbent, and likewise each eighth year thereafter, an election shall be held in the manner provided in this section in the district from which the incumbent Court of Appeals judge was elected at which there shall be elected a successor to the incumbent, whose term of office shall thereafter begin on the first Monday of January of the year in which the term of the incumbent he succeeds expires.
(4) (a) Any vacancy on the Court of Appeals occurring prior to January 1, 2006, shall be filled by appointment of the Governor for that portion of the unexpired term prior to the election to fill the remainder of said term according to provisions of Section 23-15-849, Mississippi Code of 1972.
(b) From and after January 1, 2006, any vacancy on the Court of Appeals shall be filled by appointment of the Governor, subject to the advice and consent of the Senate. If a vacancy occurs before the expiration of a term, the appointment shall be for the remainder of that term.
(c) A judge of the Court of Appeals holding office or elected thereto on January 1, 2006, shall remain in office for the remainder of his term, unless he vacates the office or is removed for cause. If a judge does not stand for retention election as provided by Section 23-15-991, the office held by that judge shall be vacated upon expiration of term.
(5) (a) The State of Mississippi is hereby divided into five (5) Court of Appeals Districts as follows:
FIRST DISTRICT. The First Court of Appeals District shall be composed of the following counties and portions of counties: Alcorn, Benton, Calhoun, Chickasaw, Choctaw, DeSoto, Itawamba, Lafayette, Lee, Marshall, Monroe, Pontotoc, Prentiss, Tate, Tippah, Tishomingo, Union, Webster and Yalobusha; in Grenada County the precincts of Providence, Mt. Nebo, Hardy and Pea Ridge; in Montgomery County the precincts of North Winona, Lodi, Stewart, Nations and Poplar Creek; in Panola County the precincts of East Sardis, South Curtis, Tocowa, Pope, Courtland, Cole's Point, North Springport, South Springport, Eureka, Williamson, East Batesville 4, West Batesville 4, Fern Hill, North Batesville A, East Batesville 5 and West Batesville 5; and in Tallahatchie County the precincts of Teasdale, Enid, Springhill, Charleston Beat 1, Charleston Beat 2, Charleston Beat 3, Paynes, Leverette, Cascilla, Murphreesboro and Rosebloom.
SECOND DISTRICT. The Second Court of Appeals District shall be composed of the following counties and portions of counties: Bolivar, Carroll, Claiborne, Coahoma, Holmes, Humphreys, Issaquena, Jefferson, Leflore, Quitman, Sharkey, Sunflower, Tunica, Warren, Washington and Yazoo; in Attala County the precincts of Northeast, Hesterville, Possomneck, North Central, McAdams, Newport, Sallis and Southwest; that portion of Grenada County not included in the First Court of Appeals District; in Hinds County Precincts 11, 12, 13, 22, 23, 27, 28, 29, 30, 40, 41, 83, 84 and 85, and the precincts of Bolton, Brownsville, Cayuga, Chapel Hill, Cynthia, Edwards, Learned, Pine Haven, Pocahontas, St. Thomas, Tinnin, Utica 1 and Utica 2; in Leake County the precincts of Conway, West Carthage, Wiggins, Thomastown and Ofahoma; in Madison County the precincts of Farmhaven, Canton Precinct 2, Canton Precinct 3, Cameron Street, Canton Precinct 6, Bear Creek, Gluckstadt, Smith School, Magnolia Heights, Flora, Virlilia, Canton Precinct 5, Cameron, Couparle, Camden, Sharon, Canton Precinct 1 and Canton Precinct 4; that portion of Montgomery County not included in the First Court of Appeals District; that portion of Panola County not included in the First Court of Appeals District; and that portion of Tallahatchie County not included in the First Court of Appeals District.
THIRD DISTRICT. The Third Court of Appeals District shall be composed of the following counties and portions of counties: Clarke, Clay, Jasper, Kemper, Lauderdale, Lowndes, Neshoba, Newton, Noxubee, Oktibbeha, Rankin, Scott, Smith and Winston; that portion of Attala County not included in the Second Court of Appeals District; in Jones County the precincts of Northwest High School, Shady Grove, Sharon, Erata, Glade, Myrick School, Northeast High School, Rustin, Sandersville Civic Center, Tuckers, Antioch and Landrum; that portion of Leake County not included in the Second Court of Appeals District; that portion of Madison County not included in the Second Court of Appeals District; and in Wayne County the precincts of Big Rock, Yellow Creek, Hiwannee, Diamond, Chaparral, Matherville, Coit and Eucutta.
FOURTH DISTRICT. The Fourth Court of Appeals District shall be composed of the following counties and portions of counties: Adams, Amite, Copiah, Covington, Franklin, Jefferson Davis, Lawrence, Lincoln, Marion, Pike, Simpson, Walthall and Wilkinson; that portion of Hinds County not included in the Second Court of Appeals District; and that portion of Jones county not included in the Third Court of Appeals District.
FIFTH DISTRICT. The Fifth Court of Appeals District shall be composed of the following counties and portions of counties: Forrest, George, Greene, Hancock, Harrison, Jackson, Lamar, Pearl River, Perry and Stone; and that portion of Wayne County not included in the Third Court of Appeals District.
(b) The boundaries of the Court of Appeals Districts described in paragraph (a) of this subsection shall be the boundaries of the counties and precincts listed in paragraph (a) of this subsection as such boundaries existed on October 1, 1990.
SECTION 4. Section 9-4-15, Mississippi Code of 1972, which provides that general elections for the office of judge of the Court of Appeals shall be held at the same times as general elections for congressional offices, is repealed.
SECTION 5. Section 23-15-197, Mississippi Code of 1972, is amended as follows:
23-15-197. (1) Times for holding primary and general elections for congressional offices shall be as prescribed in Sections 23-15-1031, 23-15-1033 and 23-15-1041.
(2) Times for holding retention elections for the office of judge of the Supreme Court or judge of the Court of Appeals shall be as prescribed in Section 23-15-991 and Sections 23-15-974 through 23-15-985.
(3) Times for holding elections for the office of circuit court judge and the office of chancery court judge shall be as prescribed in Sections 23-15-974 through 23-15-985, and Section 23-15-1015.
(4) Times for holding elections for the office of county election commissioners shall be as prescribed in Section 23-15-213.
SECTION 6. 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.
(3) Whenever any judge shall stand for retention election, the ballot shall be printed as required by Section 23-15-991.
SECTION 7. Section 23-15-607, Mississippi Code of 1972, is amended as follows:
23-15-607. (1) The commissioners of election shall, within ten (10) days after a retention election for judges of the Supreme Court or Court of Appeals, transmit to the Secretary of State, to be filed in his office, a statement of the whole number of votes given in their county, and the whole number of votes given in each precinct in their county, for each candidate to retain the office of judge of the Supreme Court or Court of Appeals, and the Secretary of State shall immediately notify each member of the State Board of Election Commissioners in writing to assemble at his office on a day to be fixed by him, to be within ten (10) days after the receipt by him of such statement, and when assembled pursuant to such notice the State Board of Election Commissioners shall sum up the whole number of votes given for each candidate for retention of the office of judge of the Supreme Court or Court of Appeals according to the total number of votes in each county for or against each candidate as certified to the Secretary of State, ascertain whether the person * * * is to be retained; and thereupon all persons chosen to retain office at the election shall be commissioned by the Governor; but if it appears that any candidate for retention as judge of the Supreme Court or Court of Appeals * * * has an equal number of votes for and against retention, the election shall be forthwith decided * * * by lots, fairly and publicly drawn under the direction of the State Board of Election Commissioners. The position of a judge of the Supreme Court or Court of Appeals who loses a retention election by the drawing of lots shall be vacant upon expiration of term.
(2) The statements required by this section shall contain a certification, signed and dated by a majority of the commissioners of election, which shall read as follows:"We, the undersigned commissioners of election, do hereby certify that this statement of the whole number of votes contain the official vote for the election reflected therein."
(3) The statements required by this section shall be transmitted to the Secretary of State on such forms and by such methods as may be required by rules and regulations promulgated by the Secretary of State.
SECTION 8. Section 23-15-849, Mississippi Code of 1972, is amended as follows:
23-15-849. (1) Vacancies in the office of circuit judge or chancellor shall be filled for the unexpired term by the qualified electors at the next regular election for state officers or for representatives in Congress occurring more than nine (9) months after the existence of the vacancy to be filled, and the term of office of the person elected to fill a vacancy shall commence on the first Monday in January following his election. Upon the occurring of such a vacancy, the Governor shall appoint a qualified person from the district in which the vacancy exists to hold the office and discharge the duties thereof until the vacancy shall be filled by election as provided in this subsection.
(2) * * * Upon occurrence of a vacancy in the office of judge of the Supreme Court or Court of Appeals, the Governor shall appoint a qualified person from the district in which the vacancy exists to hold the office and discharge the duties thereof * * *.
* * *
SECTION 9. 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 * * * candidates for retention of the office of judge of the Supreme Court and * * * the Court of Appeals, and for candidates for 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. This section shall apply to candidates for election to judicial office and to candidates standing for retention election for judicial office.
SECTION 10. Section 23-15-975, Mississippi Code of 1972, is amended as follows:
23-15-975.
* * *
As used in Sections 23-15-974 through 23-15-985 of this subarticle, the term "judicial office" includes the office of justice of the Supreme Court, judge of the Court of Appeals, circuit judge, chancellor, and county court judge * * *. All such justices and judges 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 11. 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 the intent to be a candidate with the proper officials not later than 5:00 p.m. on 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 retention in the office of Supreme Court Justice and judge of the Court of Appeals, the sum of Two Hundred Dollars ($200.00).
(b) Candidates for circuit judge and chancellor, the sum of One Hundred Dollars ($100.00).
(c) Candidates for county judge * * *, the sum of Fifteen Dollars ($15.00).
(2) Candidates for judicial offices listed in paragraphs (a) and (b) of subsection (1) of this section shall file the intent to stand for retention election or 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 (c) of subsection (1) of this section shall file the 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 * * * the intent to be a candidate * * * 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 12. Section 23-15-991, Mississippi Code of 1972, is amended as follows:
23-15-991. * * * (1) An election shall be held on the first Tuesday after the first Monday in November immediately preceding the expiration of the term of an incumbent in the Supreme Court district or Court of Appeals district from which each incumbent was selected, to submit his name to the eligible voters 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, the incumbent shall begin a new term of office at the expiration of the 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 law and the Mississippi Constitution of 1890.
(2) Within the time frame prescribed by Section 23-15-977, a judge of the Supreme Court or Court of Appeals may file in the Office of Secretary of State a declaration of candidacy for election to succeed himself in the position. If a declaration is not so filed by the judge, a vacancy shall exist upon the expiration of his term which shall be filled by appointment of the Governor as provided in Section 9-3-4 for judges of the Supreme Court and Section 9-4-5 for judges of the Court of Appeals. If a declaration is filed, the judge's name shall be submitted at the general election to the eligible voters within the district. The ballot shall read substantially as follows:
"Shall Judge (Here the name of the judge shall be inserted) of the (Here the title of the court, district and position shall be inserted) be retained in office? Yes , No ." If a majority of those voting on the question vote against retaining the incumbent in office, upon the expiration of the incumbent’s term of office, a vacancy shall exist which shall be filled by appointment of the Governor as provided in this section; otherwise, the judge shall remain in office for the term of such office, unless he vacates the office or is removed for cause. At the expiration of each term, a judge of the Supreme Court or Court of Appeals shall be eligible for retention in office by election in the manner prescribed in this section.
SECTION 13. Section 23-15-993, Mississippi Code of 1972, is amended as follows:
23-15-993. For the purpose of appointment and election, each of the nine (9) judgeships of the Supreme Court and the ten (10) judgeships of the Court of Appeals shall be considered a separate office. * * *
SECTION 14. Section 23-15-995, Mississippi Code of 1972, is amended as follows:
23-15-995. Except as may be otherwise provided by the provisions of Sections 23-15-974 through 23-15-985, the general laws for the election of state officers shall apply to and govern the retention election of judges of the Supreme Court.
SECTION 15. The Attorney General of the State of Mississippi shall 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 16. This act shall take effect and be in force from and after January 1, 2006, provided that it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, and further provided that the amendments to the Mississippi Constitution of 1890 as proposed by Senate Concurrent Resolution No. 506, 2004 Regular Session, are certified by the Secretary of State as having been ratified by the people.