Senate Concurrent Resolution 516

A CONCURRENT RESOLUTION PROPOSING AN AMENDMENT TO SECTION 145, MISSISSIPPI CONSTITUTION OF 1890, TO PROVIDE FOR THE APPOINTMENT OF THE SUPREME COURT JUDGES; TO PROVIDE FOR THE SELECTION OF JUDGES; TO PROVIDE THAT THE GOVERNOR SHALL FILL VACANCIES BY APPOINTMENT; TO PROVIDE FOR A RETENTION ELECTION ON EACH JUDGE AFTER SERVING EACH TERM; TO ESTABLISH THE TERM OF OFFICE; TO AUTHORIZE THE LEGISLATURE TO PROVIDE FOR STAGGERED TERMS AND ELECTIONS; TO REPEAL SECTIONS 145A AND 145B, MISSISSIPPI CONSTITUTION OF 1890, WHICH PROVIDE FOR ADDITIONAL SUPREME COURT JUDGES; TO REPEAL SECTION 177, MISSISSIPPI CONSTITUTION OF 1890, WHICH PROVIDES FOR THE FILLING OF A JUDICIAL VACANCY WHEN THE LEGISLATURE IS NOT IN SESSION; TO REPEAL SECTIONS 149 AND 149A, MISSISSIPPI CONSTITUTION OF 1890, WHICH PROVIDE FOR THE TERMS OF OFFICE OF JUDGES OF THE SUPREME COURT AND AUTHORIZE THAT COURT TO SIT IN DIVISIONS; AND FOR RELATED PURPOSES.

BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI, That the following amendments to the Mississippi Constitution of 1890 be submitted to the qualified electors of the state:

Amend Section 145, Mississippi Constitution of 1890, to read as follows:

Section 145. (1) (a) The Supreme Court shall consist of nine (9) judges, any five (5) of whom, when convened, shall constitute a quorum. The term of office of judges of the Supreme Court shall be eight (8) years. The Legislature shall divide the state into three (3) Supreme Court districts, andthe Governor shall appoint three (3) judges for and from each district * * * in the manner provided by law. Each judge shall be subject to noncompetitive, nonpartisan retention election in order to succeed himself. The Legislature shall provide for the necessary retention election. The position of a judge who does not receive sufficient votes to be retained shall be vacant upon expiration of term unless earlier vacated.

(b) * * * The removal of a judge to the state capital during his term of office shall not render him ineligible as his own successor for the district from which he has removed. * * *

(2) The Supreme Court shall have power to sit in divisions of three (3) judges each, any two (2) of whom when convened shall constitute a quorum of the division; each division shall have full power to hear and adjudge all cases that may be assigned to it by the court. If the decision of a division is not unanimous, or if any judge shall certify that in his opinion a decision of any division of the court is in conflict with any prior decision of the court or of a division, the cause shall then be considered and adjudged by the full court or a quorum thereof.

(3) When a vacancy occurs in the office of judge of the Supreme Court, the Governor shall fill the vacancy by appointment, 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.

(4) A judge of the Supreme Court holding office or elected thereto at the time this section takes effect shall remain in office for the remainder of his term, unless he vacates the office or is removed for cause. Each judge shall stand for retention election as provided by law and this Constitution or the office held by that judge shall be vacated upon expiration of term.

II.

Repeal Section 145-A, Mississippi Constitution of 1890, which reads as follows:

Section 145-A. The Supreme Court shall consist of six (6) judges, that is to say, of three (3) judges in addition to the three (3) provided for by Section 145 of this Constitution, any four (4) of whom when convened shall form a quorum. The additional judges herein provided for shall be selected one (1) for and from each of the Supreme Court districts in the manner provided by Section 145 of this Constitution, or any amendments thereto. Their terms of office shall be as provided by Section 149 of this Constitution, or any amendment thereto.

III.

Repeal Section 145-B, Mississippi Constitution of 1890, which reads as follows:

Section 145-B. The Supreme Court shall consist of nine (9) judges, that is to say, of three (3) judges in addition to the six (6) provided for by Section 145A of this Constitution, any five (5) of whom when convened shall constitute a quorum. The additional judges herein provided for shall be selected one (1) for and from each of the Supreme Court districts in the manner provided by Section 145A of this Constitution or any amendment thereto. Their terms of office shall be as provided by Section 149 of this Constitution or any amendment thereto.

IV.

Repeal Section 149, Mississippi Constitution of 1890, which reads as follows:

Section 149. The term of office of the judges of the Supreme Court shall be eight (8) years. The Legislature shall provide as near as can be conveniently done that the offices of not more than a majority of the judges of said court shall become vacant at any one time; and if necessary for the accomplishment of that purpose, it shall have power to provide that the terms of office of some of the judges first to be elected shall expire in less than eight (8) years. The adoption of this amendment shall not abridge the terms of any of the present incumbents of the office of judge of the Supreme Court; but they shall continue to hold their respective offices until the expiration of the terms for which they were respectively appointed.

Repeal Section 149-A, Mississippi Constitution of 1890, which reads as follows:

Section 149-A. The Supreme Court shall have power, under such rules and regulations as it may adopt, to sit in two (2) divisions of three (3) judges each, any two (2) of whom when convened shall form a quorum; each division shall have full power to hear and adjudge all cases that may be assigned to it by the court. In event the judges composing any division shall differ as to the judgment to be rendered in any cause, or in event any judge of either division, within a time and in a manner to be fixed by the rules to be adopted by the court, shall certify that in his opinion any decision of any division of the court is in conflict with any prior decision of the court or of any division thereof, the cause shall then be considered and adjudged by the full court or a quorum thereof.

VI.

Repeal Section 177, Mississippi Constitution of 1890, which reads as follows:

Section 177. The Governor shall have power to fill any vacancy which may happen during the recess of the Senate in the office of judge or chancellor, by making a temporary appointment of an incumbent, which shall expire at the end of the next session of the Senate, unless a successor shall be sooner appointed and confirmed by the Senate. When a temporary appointment of a judge or chancellor has been made during the recess of the Senate, the Governor shall have no power to remove the person or appointee, nor power to withhold his name from the Senate for their action.

BE IT FURTHER RESOLVED, That the amendments in this resolution shall be submitted to the qualified electors as one amendment since the proposed amendments pertain to one subject at an election to be held on the first Tuesday after the first Monday of November 2004, as provided by Section 273 of the Constitution and by law.

BE IT FURTHER RESOLVED, That the explanation of the amendment for the ballot shall read as follows: "This proposed constitutional amendment provides for the appointment of the judges of the Supreme Court. The Governor will appoint judges subject to the advice and consent of the Senate. Judges will serve for eight (8) year terms, although the Legislature may extend some terms one (1) time only in order to spread out the occurrence of vacancies and to ensure that the retention election for each position will occur in the November preceding the expiration of that term. Prior to the expiration of each term, the people will vote on whether to retain a judge when his term of office expires. If the judge receives sufficient votes to be retained, the judge will serve another term. If the judge does not receive sufficient votes to be retained, that judge's position will be vacant upon expiration of term, and the vacancy will be filled by appointment of the Governor.

Sections which increased the size of the court, provided for the term of office to be eight (8) years, and authorized the hearing of cases in divisions are repealed, because the substance of these sections is included in the proposed amendment.

Section 177, which provided for the filling of a judicial vacancy when the Legislature is out of session at a time when judges were all appointed rather than elected, is repealed as surplusage."

BE IT FURTHER RESOLVED, That the Attorney General of the State of Mississippi shall submit this resolution, immediately upon adoption by the Legislature, 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.