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Posted March 2024Both the lawyers in a case and the governor have a right to object to a judge appointed by the Mississippi Supreme Court Chief Justice to hear a case or type of cases. That right, which is crucial to the constitutionality of the appointment, unfortunately went unmentioned in the Supreme Court’s most recent discussion of the appointment power, Saunders v. State, 2023 WL 615446 (Miss. Sept. 21, 2023).
That case upheld the power of the Chief Justice under Miss. Code Ann. §9-1-105(2) to appoint special temporary judges “to address overcrowded dockets or other emergencies.” Id. at *11. It reached the right result, but for reasons that, when closely examined, do not withstand scrutiny and could provide a dangerous precedent for future constitutional mischief.
The state constitution sets out three ways a circuit judge can gain office. One, provided in §153, is election. The other two, set out in §165, are agreement by the attorneys to a replacement or, if there is no such agreement, appointment by the governor. Section 165 reads:
Whenever any judge of the Supreme Court or the judge or chancellor of any district in this State shall, for any reason, be unable or disqualified to preside at any term of court, or in any case where the attorneys engaged therein shall not agree upon a member of the bar to preside in his place, the Governor may commission another, or others, of law knowledge, to preside at such term or during such disability or disqualification in place of the judge or judges so disqualified.
In 1989, I served as chair of Governor Ray Mabus’ Judicial Nominating Committee. Like Governor William Winter, Gov. Mabus organized the committee according to the recommendations of the American Judicature Society. The governor chose some members, but others were chosen by the State Bar, the Mississippi Trial Lawyers’ Association, and the Magnolia Bar. When a judge died or left office, the committee recommended a replacement. Governor Mabus in almost every case accepted the committee’s recommendation. Among those he appointed were Supreme Court Justices Joel Blass and Fred Banks, and Circuit Judges James Graves and Bob Evans. My understanding is that Governor Mabus was the last governor to have a committee which included members not appointed by the governor himself.
But neither Governor Mabus nor his staff counsel felt comfortable appointing judges to handle individual cases. Into that vacuum stepped Supreme Court Justice James L. Robertson, who drafted the initial version of §9-1-105 with an eye toward putting the appointment power in the hands of the Chief Justice, Neville Patterson. Upon consideration of the constitutional question, the ultimate authors of the bill included two provisions.
Section 9-1-105(4) provides that when the Chief Justice appoints a judge, the judge’s service will end if the governor chooses to appoint a replacement.
Section 9-1-105 (13) says “Nothing in this section shall abrogate the right of attorneys engaged in a case to agree upon a member of the bar to preside in a case pursuant to Section 165 of the Mississippi Constitution of 1890.”
In effect, the way the statute works is that the Chief Justice’s appointment is just a recommendation, which the governor and the lawyers in the case accept if they do not specifically object. That acceptance is what squares the statute with the constitution.
In Saunders, although the parties addressed the constitutionality of the statute, none of them offered this explanation for its validity. The Supreme Court also failed to mention it, and instead offered two justifications, neither of which should be taken as a precedent in future cases.
First, the court said appointments had been made for three decades without objection and wrongly gave the impression that past practice alone was a reason to ignore the plain language of the constitution. The opinion did not explain the true importance of the absence of past objections. The absence of objection mattered because it was tantamount to ratification by the governor and the lawyers in the case, and so squared the appointment with the constitution and the statute. Past practice is certainly a proper element in constitutional interpretation, but if allowed to stand alone could be a source of great mischief.
The second justification offered by the court was even more dangerous. The court declared that “Section 165 ‘does not state that it is the exclusive mechanism for selection of special judges.’ McDonald [v. McDonald, 850 So.2d 1182, 1187 (Miss. Ct. App. 2002)].” Id. at *11. But none of the provisions in the constitution say they are exclusive. The burden on a party asserting a constitutional right is to show that it is included somewhere in the constitution. A court cannot, or at least should not, just set aside the plain language and justify it by saying the constitutional provision directly on point is not “exclusive.” In fact, the opinion’s separate decision – finding that appointment for a four-year fixed term was unconstitutional because it conflicted with §165 – rested entirely on a belief that the constitutional provisions are exclusive.
Although the opinion’s language is ambiguous, a closer look at the McDonald decision, written by then-Court of Appeals Judge Leslie Southwick, shows that what it was saying was that the governor’s “authority” was not exclusive, as it indeed is not. The opinion should not be read as saying that Section 165 itself was not exclusive.
In McDonald, a losing party challenged the actions of an appointed judge and contended that the governor was the “sole authority” who could appoint a judge. Id. The court rejected the argument because the party challenging the trial judge had not given notice of a constitutional challenge to the attorney general and, in any event, the judge had “de facto” authority to act. Id. at 1187.
But in dictum the court also addressed the “sole authority” argument. After quoting Section 165, the opinion said:
This provision does not state that it is the exclusive mechanism for selection of special judges. The provision itself first sets out another alternative, namely, that the parties agree on a member of the bar as a replacement ….
850 So.2d 1182. The ambiguity arises in the use of the word “it.” If “it” refers to the party’s argument that the governor is the “sole authority,” then the sentence makes sense: “The provision does not state that [the governor’s sole authority] is the exclusive mechanism” because the lawyers can choose. On the other hand, if “it” means “the provision,” as the Supreme Court assumed, the evidence that the provision is not “exclusive” is an alternative found in the provision itself, which is a logical impossibility.
In any event, ambiguous dictum in a Court of Appeals opinion cannot justify a Supreme Court statement which, by denying that the constitution is the “exclusive” method of judicial selection, suggests the legislature would not have to give the governor and the lawyers veto power over the appointment.
The Supreme Court opinion also relies on a Voting Rights Act case, Prewitt v. Moore, 840 F. Supp. 428, 430 (N.D. Miss. 1993), but that opinion held only that the change from governor appointment to Supreme Court appointment subject to governor veto was not enough of a change to require Justice Department preclearance. Again, the governor’s veto played a crucial role.
As a practical matter, this distinction may be more important to the future of our constitutional law than to the service of appointed judges. Governors have apparently not sought to involve themselves in the process, and it would perhaps be an unusual case in which opposing parties could agree on a replacement judge. But they have that right. And the language of §165 certainly suggests that it is independent of approval by the governor.
Luther T. Munford is a retired Jackson lawyer. From 1988 to 1991 he chaired Governor Ray Mabus’ Judicial Nominating Committee.
