MISSISSIPPI LEGISLATURE
2005 Regular Session
To: Judiciary, Division A; Appropriations
By: Senator(s) Walls
AN ACT TO AMEND SECTION 9-9-9, MISSISSIPPI CODE OF 1972, TO ESTABLISH THAT A COUNTY JUDGE SHALL NOT OTHERWISE PRACTICE LAW; TO AMEND SECTION 9-9-11, MISSISSIPPI CODE OF 1972, TO REVISE THE COMPENSATION OF THE OFFICE OF COUNTY COURT JUDGE; TO AMEND SECTION 23-15-975, MISSISSIPPI CODE OF 1972, IN CONFORMITY; TO AMEND SECTION 9-1-19, MISSISSIPPI CODE OF 1972, TO REVISE THE AUTHORITY OF JUDGES TO GRANT REMEDIAL WRITS; TO AMEND SECTION 9-1-23, MISSISSIPPI CODE OF 1972, TO INCLUDE COUNTY COURT JUDGES AS THOSE WHO ARE CONSERVATORS OF THE PEACE; TO AMEND SECTION 9-1-25, MISSISSIPPI CODE OF 1972, TO INCLUDE COUNTY COURT JUDGES AMONG THOSE WHO ARE NOT TO PRACTICE LAW; TO AMEND SECTION 9-1-35, MISSISSIPPI CODE OF 1972, TO REQUIRE THE COUNTY COURT TO OBTAIN A SEAL; TO AMEND SECTION 9-1-36, MISSISSIPPI CODE OF 1972, TO INCLUDE COUNTY COURT JUDGES AMONG THOSE FOR WHOM AN OFFICE ALLOWANCE IS APPROPRIATED; TO AMEND SECTION 9-9-23, MISSISSIPPI CODE OF 1972, IN CONFORMITY; TO AMEND SECTION 43-21-107, MISSISSIPPI CODE OF 1972, TO REMOVE ALL REFERENCES TO THE FAMILY COURT; TO AMEND SECTION 43-21-111, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT STATE FUNDING WILL BE CONTINGENT ON A COUNTY'S REGULAR YOUTH COURT REFEREE COMPLYING WITH ANNUAL TRAINING REQUIREMENTS; TO AMEND SECTION 43-21-123, MISSISSIPPI CODE OF 1972, TO AUTHORIZE NONSTATE GENERAL FUNDING OF YOUTH COURT REFEREES IN COUNTIES NOT HAVING A COUNTY COURT AND TO PROVIDE FOR NONSTATE GENERAL FUND AND COUNTY CONTRIBUTIONS TOWARD THE YOUTH COURT BUDGET; TO AMEND SECTIONS 9-13-17 AND 9-13-61, MISSISSIPPI CODE OF 1972, IN CONFORMITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 9-9-9, Mississippi Code of 1972, is amended as follows:
9-9-9. The county judge shall not practice law * * *, but this prohibition shall not prohibit the judges of the county courts from practicing in any of the courts so far as to enable them to bring to a conclusion cases actually pending when they were appointed or elected, in which such county judges were then employed as provided in Section 9-1-25, Mississippi Code of 1972, for judges of the circuit court and chancellors.
SECTION 2. Section 9-9-11, Mississippi Code of 1972, is amended as follows:
9-9-11. * * * The county court judge shall receive an annual salary payable monthly * * * in the amount of One Thousand Dollars ($1,000.00) less than the annual salary which is now or shall hereafter be provided for circuit and chancery judges of this state * * *, the office of county court judge * * * shall be a full-time position, and the holder thereof shall not otherwise engage in the practice of law.
* * *
SECTION 3. 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 4. Section 9-1-19, Mississippi Code of 1972, is amended as follows:
9-1-19. The judges of the Supreme, circuit and county courts, and chancellors and judges of the Court of Appeals, in
termtime and in vacation, may severally order the issuance of writs of habeas corpus, mandamus, certiorari, supersedeas and attachments, and grant injunctions and all other remedial writs, in all cases where the same may properly be granted according to right and justice, returnable to any court, whether the suit or proceedings be pending in the district of the judge or chancellor granting the same or not. The fiat of such judge or chancellor shall authorize the issuance of the process for a writ returnable to the proper court or before the proper officer; and all such process or writs may be granted, issued and executed on Sunday.
SECTION 5. Section 9-1-23, Mississippi Code of 1972, is amended as follows:
9-1-23. The judges of the Supreme, circuit and county courts and chancellors and judges of the Court of Appeals shall be conservators of the peace for the state, each with full power to do all acts which conservators of the peace may lawfully do; and the circuit judges, and chancellors and county judges shall reside within their respective districts * * *.
SECTION 6. Section 9-1-25, Mississippi Code of 1972, is amended as follows:
9-1-25. It shall not be lawful for any judge of the Supreme Court, Court of Appeals or a judge of the circuit or county court, or a chancellor to exercise the profession or employment of an attorney or counsellor at law, or to be engaged in the practice of law; and any person offending against this prohibition shall be guilty of a high misdemeanor and be removed from office; but this shall not prohibit a chancellor, circuit judge, county judge or a judge of the Court of Appeals from practicing in any of the courts for a period of six (6) months from the time such judges or chancellors assume office so far as to enable them to bring to a conclusion cases actually pending when they were appointed or elected in which such chancellor or judge was then employed, nor shall a judge of the Supreme Court be hindered from appearing in the courts of the United States in any case in which he was engaged when he was appointed or elected judge.
SECTION 7. Section 9-1-35, Mississippi Code of 1972, is amended as follows:
9-1-35. The clerk of the Supreme Court and of the Court of Appeals, at the expense of the state, and the clerk of every circuit, county and chancery court, at the expense of the county, shall keep a seal, with the style of the court around the margin and the image of an eagle in the center.
SECTION 8. Section 9-1-36, Mississippi Code of 1972, is amended as follows:
9-1-36. (1) Each circuit judge, county court judge and chancellor shall receive an office operating allowance for the expenses of operating the office of such judge, including retaining a law clerk, legal research, stenographic help, stationery, stamps, furniture, office equipment, telephone, office rent and other items and expenditures necessary and incident to maintaining the office of judge. Such allowance shall be paid only to the extent of actual expenses incurred by any such judge as itemized and certified by such judge to the Supreme Court and then in an amount of Four Thousand Dollars ($4,000.00) per annum; however, such judge may expend sums in excess thereof from the compensation otherwise provided for his office. No part of this expense or allowance shall be used to pay an official court reporter for services rendered to said court.
(2) In addition to the amounts provided for in subsection (1), there is hereby created a separate office allowance fund for the purpose of providing support staff to judges. This fund shall be managed by the Administrative Office of Courts.
(3) Each judge who desires to employ support staff after July 1, 1994, shall make application to the Administrative Office of Courts by submitting to the Administrative Office of Courts a proposed personnel plan setting forth what support staff is deemed necessary. Such plan may be submitted by a single judge or by any combination of judges desiring to share support staff. In the process of the preparation of the plan, the judges, at their request, may receive advice, suggestions, recommendations and other assistance from the Administrative Office of Courts. The Administrative Office of Courts must approve the positions, job descriptions and salaries before the positions may be filled. The Administrative Office of Courts shall not approve any plan which does not first require the expenditure of the funds in the support staff fund for compensation of any of the support staff before expenditure is authorized of county funds for that purpose. Upon approval by the Administrative Office of Courts, the judge or judges may appoint the employees to the position or positions, and each employee so appointed will work at the will and pleasure of the judge or judges who appointed him but will be employees of the Administrative Office of Courts. Upon approval by the Administrative Office of Courts, the appointment of any support staff shall be evidenced by the entry of an order on the minutes of the court. When support staff is appointed jointly by two (2) or more judges, the order setting forth any appointment shall be entered on the minutes of each participating court.
(4) The Administrative Office of Courts shall develop and promulgate minimum qualifications for the certification of court administrators. Any court administrator appointed on or after October 1, 1996, shall be required to be certified by the Administrative Office of Courts.
(5) Support staff shall receive compensation pursuant to personnel policies established by the Administrative Office of Courts; however, from and after July 1, 1994, the Administrative Office of Courts shall allocate from the support staff fund an amount of Forty Thousand Dollars ($40,000.00) per fiscal year (July 1 through June 30) per judge for whom support staff is approved for the funding of support staff assigned to a judge or judges. Any employment pursuant to this subsection shall be subject to the provisions of Section 25-1-53.
The Administrative Office of Courts may approve expenditure from the fund for additional equipment for support staff appointed pursuant to this section in any year in which the allocation per judge is sufficient to meet the equipment expense after provision for the compensation of the support staff.
(6) For the purposes of this section, the following terms shall have the meaning ascribed herein unless the context clearly requires otherwise:
(a) "Judges" means circuit judges and chancellors, or any combination thereof;
(b) "Support staff" means court administrators, law clerks, legal research assistants or secretaries, resource administrator and case managers appointed by a youth court judge, or any combination thereof, but shall not mean school attendance officers;
(c) "Compensation" means the gross salary plus all amounts paid for benefits or otherwise as a result of employment or as required by employment; provided, however, that only salary earned for services rendered shall be reported and credited for Public Employees' Retirement System purposes. Amounts paid for benefits or otherwise, including reimbursement for travel expenses, shall not be reported or credited for retirement purposes.
(7) Title to all tangible property, excepting stamps, stationery and minor expendable office supplies, procured with funds authorized by this section, shall be and forever remain in the State of Mississippi to be used by the circuit judge or chancellor during the term of his office and thereafter by his successors.
(8) Any * * * judge * * * who did not have a primary office provided by the county on March 1, 1988, shall be allowed an additional Four Thousand Dollars ($4,000.00) per annum to defray the actual expenses incurred by such judge * * * in maintaining an office; however, any * * * judge * * * who had a primary office provided by the county on March 1, 1988, and who vacated the office space after such date for a legitimate reason, as determined by the Department of Finance and Administration, shall be allowed the additional office expense allowance provided under this subsection. The county in which a circuit judge or chancellor sits is authorized to provide funds from any available source to assist in defraying the actual expenses to maintain an office.
(9) The Supreme Court, through the Administrative Office of Courts, shall submit to the Department of Finance and Administration the itemized and certified expenses for office operating allowances that are directed to the court pursuant to this section.
(10) The Supreme Court, through the Administrative Office of Courts, shall have the power to adopt rules and regulations regarding the administration of the office operating allowance authorized pursuant to this section.
SECTION 9. Section 9-9-23, Mississippi Code of 1972, is amended as follows:
9-9-23. The county judge shall have power to issue writs, and to try matters, of habeas corpus on application to him therefor, or when made returnable before him by a superior judge. He shall also have the power to order the issuance of writs of certiorari, supersedeas, attachments, and other remedial writs in all cases pending in, or within the jurisdiction of, his court. He shall have the authority to issue search warrants in his county or district returnable to his own court or to any court of a
justice court judge within his county or district in the same manner as is provided by law for the issuance of search warrants by justice court judges. In all cases pending in, or within the jurisdiction of, his court, he shall have, in termtime, and in vacation, the power to order, do or determine to the same extent and in the same manner as a justice court judge or a circuit judge or a chancellor could do in termtime or in vacation in such cases. But he shall not have original power to issue writs of injunction, or other remedial writs in equity or in law except in those cases hereinabove specified as being within his jurisdiction. Provided, however, that when any judge or chancellor authorized to issue such writs of injunction, or any other equitable or legal remedial writs hereinabove reserved, shall so direct in writing the hearing of application therefor may be by him referred to the county judge, in which event the said direction of the superior judge shall vest in the said county judge all authority to take such action on said application as the said superior judge could have taken under the right and the law, had the said application been at all times before the said superior judge. The jurisdiction authorized under the foregoing provision shall cease upon the denying or granting of the application.
SECTION 10. Section 43-21-107, Mississippi Code of 1972, is amended as follows:
43-21-107. * * *
(1) A youth court division is hereby created as a division of the county court of each county now or hereafter having a county court * * *, and the county judge shall be the judge of the youth court unless another judge is named by the county judge as provided by this chapter.
(2) A youth court division is hereby created as a division of the chancery court of each county in which no county court * * * is maintained and any chancellor within a chancery court district shall be the judge of the youth court of that county within such chancery court district unless another judge is named by the senior chancellor of the county or chancery court district as provided by this chapter.
(3) In any county where there is no county court or family court on July 1, 1979, there may be created a youth court division as a division of the municipal court in any city if the governing authorities of such city adopt a resolution to that effect. The cost of the youth court division of the municipal court shall be paid from any funds available to the municipality for such purposes excluding state and county funds.
SECTION 11. Section 43-21-111, Mississippi Code of 1972, is amended as follows:
43-21-111. (1) In any county not having a county court or family court, * * * the judge may appoint as provided in Section 43-21-123 regular or special referees who shall be attorneys at law and members of the bar in good standing to act in cases concerning children within the jurisdiction of the youth court, and a regular referee shall hold office until removed by the judge. The requirement that regular or special referees appointed pursuant to this subsection be attorneys shall apply only to regular or special referees who were not first appointed regular or special referees prior to July 1, 1991.
(2) Any referee appointed pursuant to subsection (1) of this section or Section 43-21-107(3) shall be required to receive judicial training approved by the Mississippi Judicial College and shall be required to receive regular annual continuing education in the field of juvenile justice. The amount of judicial training and annual continuing education which shall be satisfactory to fulfill the requirements of this section shall conform with the amount prescribed by the Rules and Regulations for Mandatory Continuing Judicial Education promulgated by the Supreme Court. The Administrative Office of Courts shall maintain a roll of referees appointed under this section, shall enforce the provisions of this subsection, shall maintain records on all such referees regarding such training and shall not disburse funds to any county for the budget of a youth court referee or any supplemental salary support for any regular youth court referee or municipal youth court referee who is not in compliance with the judicial training requirements. Should a referee miss two (2) consecutive training sessions sponsored or approved by the Mississippi Judicial College as required by this subsection or fail to attend one (1) such training session within six (6) months of their initial appointment as a referee, the referee shall be disqualified to serve and be immediately removed as a referee and another member of the bar shall be appointed as provided in this section.
(3) The judge may direct that hearings in any case or class of cases be conducted in the first instance by the referee. The judge may also delegate his own administrative responsibilities to the referee.
(4) All hearings authorized to be heard by a referee shall proceed in the same manner as hearings before the youth court judge. A referee shall possess all powers and perform all the duties of the youth court judge in the hearings authorized to be heard by the referee.
(5) An order entered by the referee shall be mailed immediately to all parties and their counsel. A rehearing by the judge shall be allowed if any party files a written motion for a rehearing or on the court's own motion within three (3) days after notice of referee's order. The youth court may enlarge the time for filing a motion for a rehearing for good cause shown. Any rehearing shall be upon the record of the hearing before the referee, but additional evidence may be admitted in the discretion of the judge. A motion for a rehearing shall not act as a supersedeas of the referee's order, unless the judge shall so order.
(6) The salary for the referee shall be * * * as provided in Section 43-21-123 * * *.
(7) * * * The judge of the chancery court may appoint a suitable person as referee to two (2) or more counties within his district * * *.
SECTION 12. Section 43-21-123, Mississippi Code of 1972, is amended as follows:
43-21-123. (1) Except for expenses provided by state funds and/or other monies, the board of supervisors, or the municipal governing board where there is a municipal youth court, shall adequately provide funds for the operation of the youth court division of the appropriate court in conjunction with the regular * * * court budget * * *. The Administrative Office of Courts shall establish a formula for the minimum level of compensation for all regular youth court referees and municipal youth court referees which shall be based on the caseload of each youth court. Such formula shall be reviewed by the Administrative Office of Courts at least every two (2) years to ensure that the minimum regular youth court referee level of compensation is in accordance with the youth court's caseload. All counties utilizing a regular youth court referee or cities utilizing a municipal youth court referee shall provide such regular youth court referee or municipal youth court referee with a salary which is not less than the minimum level of compensation established by the Administrative Office of Courts. The formula for the minimum level of compensation for regular youth court referees shall not prohibit each county board of supervisors or city from establishing a salary for regular youth court referees or municipal youth court referees which exceeds the amount established by the Administrative Office of Courts. In preparation for said funding, on an annual basis at the time requested, the youth court judge, regular youth court referee or administrator shall prepare and submit to the board of supervisors, or the municipal governing board of the youth court wherever the youth court is a municipal court, an annual budget which will identify the number, staff position, title and amount of annual or monthly compensation of each position as well as provide for other expenditures necessary to the functioning and operation of the youth court. When the budget of the youth court or youth court judge is approved by the board of supervisors or the governing authority of the municipality, then the youth court, youth court judge, regular youth court referee or administrator may employ such persons as provided in the budget from time to time.
(2) The board of supervisors of any county in which there is located a youth court, and the governing authority of any municipality in which there is located a municipal youth court, are each authorized to reimburse the youth court judges, referees and other county-employed youth court employees or personnel for reasonable travel and expenses incurred in the performance of their duties and in attending educational meetings offering professional training to such persons as budgeted.
(3) (a) In addition to any monthly compensation provided to a regular youth court referee or municipal youth court referee by the county or city served by such regular youth court referee or municipal youth court referee pursuant to subsection (1) of this section, each regular youth court referee and municipal youth court referee may receive monthly supplemental salary support funds payable by the Administrative Office of Courts in an amount established by the Administrative Office of Courts.
(b) In order to ensure that all youth courts not served by a county court have sufficient support funds to carry on the business of the youth court, the Administrative Office of Courts may establish a formula for providing support for those youth courts. Youth court support funds may be available to each regular youth court referee and municipal youth court referee so long as the senior chancellor does not elect to employ a youth court administrator as set forth in paragraph (c) of this subsection (3), and each regular youth court referee shall have the individual discretion to appropriate those funds as expense monies to assist in hiring secretarial staff and acquiring materials incident to carrying on the business of the court within the referee's private practice of law, or may direct the use of those funds through the county budget for court support supplies or services. The regular youth court referee and municipal youth court referee shall be accountable for assuring through private or county employees the proper preparation and filing of all necessary tracking and other documentation attendant to the administration of the youth court. The formula developed by the Administrative Office of Courts for providing youth court support funds shall be reviewed by the Administrative Office of Courts every two (2) years to ensure that the youth court support funds provided herein are proportional to each youth court's caseload. Approval of the use of any of the youth court support funds made under this subsection shall be made by the Administrative Office of Courts in accordance with procedures established by the Administrative Office of Courts.
(c) In lieu of accepting any referee support funds as provided in paragraph (b) of this subsection, when permitted by the Administrative Office of Courts, the senior chancellors of Chancery Districts One, Two, Three, Four, Six, Seven, Nine, Ten, Thirteen, Fourteen, Fifteen and Eighteen may appoint a youth court administrator for the district whose responsibility will be to perform all reporting, tracking and other duties of a court administrator for all youth courts in the district which are under the chancery court system. The Administrative Office of Courts may allocate to each chancellor so electing a sum not to exceed Thirty Thousand Dollars ($30,000.00) per year to cover the salary, fringe benefits and equipment of each administrator, and an additional sum not to exceed One Thousand Nine Hundred Dollars ($1,900.00) to cover travel expenses of the administrator.
(4) (a) Counties in which a county court exists shall make an annual contribution to the Administrative Office of Courts in an amount of One Hundred Eleven Thousand Three Hundred Eleven Dollars ($111,311.00), divided into twelve (12) equal monthly installments. Each installment is due not later than the close of business on the 25th day of the month preceding the month for which the installment is due, or, if the 25th day falls on a holiday or weekend, on the preceding regular business day.
(b) Counties failing to make the financial contributions required by this subsection (4) shall forfeit their right to receive their homestead exemption reimbursement in an amount sufficient to repay obligations due until such time as their indebtedness is satisfied or satisfactory arrangements have been made. Homestead exemption reimbursements, upon demand made in writing to the State Tax Commission by the Administrative Office of Courts, shall be paid to the Administrative Office of Courts and applied to the discharge of the obligation.
SECTION 13. Section 9-13-17, Mississippi Code of 1972, is amended as follows:
9-13-17. The circuit judge, chancellor * * * or county judge may, by an order spread upon the minutes and made a part of the records of the court, appoint an additional court reporter for a term or part of a term whose duties, qualifications and compensation shall be the same as is now provided by law for official court reporters. The additional court reporter shall be subject to the control of the judge or chancellor, as is now provided by law for official court reporters, and the judge or chancellor shall have the additional power to terminate the appointment of such additional court reporter, whenever in his opinion the necessity for such an additional court reporter ceases to exist, by placing upon the minutes of the court an order to that effect. The regular court reporter shall not draw any compensation while the assistant court reporter alone is serving; however, in the event the assistant court reporter is serving because of the illness of the regular court reporter, the court may authorize payment of said assistant court reporter from the Administrative Office of Courts without diminution of the salary of the regular court reporter, for a period not to exceed forty-five (45) days in any one calendar year. However, in any circuit, chancery or county * * * court district within the State of Mississippi, if the judge or chancellor shall determine that in order to relieve the continuously crowded docket in such district, or for other good cause shown, the appointment of an additional court reporter is necessary for the proper administration of justice, he may, with the advice and consent of the board of supervisors if the court district is composed of a single county and with the advice and consent of at least one-half (1/2) of the boards of supervisors if the court district is composed of more than one (1) county, by an order spread upon the minutes and made a part of the records of the court, appoint an additional court reporter. The additional court reporter shall serve at the will and pleasure of the judge or chancellor, may be a resident of any county of the state, and shall be paid a salary designated by the judge or chancellor not to exceed the salary authorized by Section 9-13-19. The salary of the additional court reporter shall be paid by the Administrative Office of Courts, as provided in Section 9-13-19; and mileage shall be paid to the additional court reporter by the county as provided in the same section. The office of such additional court reporter appointed under this section shall not be abolished or compensation reduced during the term of office of the appointing judge or chancellor without the consent and approval of the appointing judge or chancellor.
SECTION 14. Section 9-13-61, Mississippi Code of 1972, is amended as follows:
9-13-61. There shall be an official court reporter for each county * * * court judge in the State of Mississippi, to be appointed by such judge, for the purpose of performing the necessary and required stenographic work of the court or division thereof over which the appointing judge is presiding, said work to be performed under the direction of such judge and in the same manner and to the same effect as is provided in the chapter on court reporting.
Except as hereinafter provided, the reporters of said courts shall receive an annual salary of not less than Twenty-four Thousand Dollars ($24,000.00) and may, at the discretion of the board of supervisors, receive a monthly salary equal to that of the reporter of the circuit court district wherein the county lies, the same to be paid monthly by the county out of its general fund.
Provided, however, that in any Class 1 county having a population in excess of fifty-six thousand (56,000) persons according to the 1970 federal decennial census, the reporter shall receive a monthly salary equal to that of the reporter of the circuit court district wherein the county or family court lies, the same to be paid monthly by the county out of its general fund.
Provided further, that in any Class 1 county bordering on the Mississippi River and which has situated therein a national military park and national military cemetery, and having a population in excess of forty-four thousand (44,000) according to the 1970 federal decennial census, the reporter shall receive a monthly salary equal to that of the reporter of the circuit court district wherein the county lies, the same to be paid monthly by the county out of its general fund.
Provided further, that in any Class 1 county bordering on the Mississippi River wherein U.S. Highways 61 and 84 intersect, and having a population in excess of thirty-seven thousand (37,000) in the 1960 federal decennial census, the reporter shall receive a monthly salary equal to that of the reporter of the circuit court district wherein the county lies, the same to be paid monthly by the county out of its general fund.
Provided further, that in addition to the foregoing compensation, all county and family court reporters shall be paid the same fees for transcript of the record on appeals as are now or hereafter paid circuit court reporters for like or similar work.
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, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, or the date of approval, whichever is later.