Mississippi Advisory Opinions April 24, 1998: AGO 98-0191 (April 24, 1998)

Advisory Opinion Text

Honorable Willie Bozeman

Mississippi House of Representatives

2757 Moncure Marble Road

Terry, Mississippi 39170

Re: Judges

Dear Representative Bozeman:

Attorney General Mike Moore has received your request for an official opinion of this office and has assigned it to me for a reply. You pose the following questions for response:

1. What limitations, if any, are there for elected officials publicly working in the community to support a judicial candidate? If there are limitations regarding the supporting in his/her official capacity, are there restrictions regarding an elected official supporting the candidate in their individual/personal/citizen capacity?

2. Under what circumstances is it permissible for a sitting judge to hear a case where a former law partner or a former law firm is representing a party in the case before the judge?

3. Article 6, Section 177 of the Mississippi Constitution provides a procedure for the Governor to fill a judicial vacancy, with Senate confirmation. Inasmuch as this provision has not been repealed, when is use of this provision of the Constitution applicable? Are there other constitutional provisions, statute or case interpretation which conflict with or circumvent Article 6, Section 177 of the State Constitution ?

In response to your first question, there is no statutory prohibition to an elected official campaigning for the judicial candidate of his or her choice.

Regarding your second question, Canon 3 of the Code of Judicial Conduct states, in pertinent part:

C. Disqualification.

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;....

The Mississippi Supreme Court has held that when “the conduct of a judge of chancellor is being examined under the dictates of a canon of the Code of Judicial Conduct, the Canon enjoys the status of law such that we enforce it rigorously, notwithstanding the lack of a litigant's specific demand.” Bryan v. Holzer , 589 So.2d 648, 653 (Miss. 1991) (citing Collins v. Dixie Transport, Inc. , 543 So.2d 160, 166 (Miss. 1989)). The Court has adopted an objective test in determining whether a judge should recuse himself: “If a reasonable person, knowing all the circumstances, would harbor doubts about the judge's impartiality, he is required to recuse himself.” Aetna Casualty and Surety Co. v. Berry, 669 So.2d 56, 74 (Miss. 1996) .

In Banana v. State , 635 So.2d 851 (Miss. 1994), the Court stated that

[i]n Mississippi, disqualification of a judge is both constitutional and statutory. Section 165 of the Mississippi Constitution of 1890 requires a judge to disqualify himself ‘where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judges and of the parties.’ Mississippi Code, [Section 9-1-11] in addition to requiring disqualification for relation of the judge by affinity or consanguinity, requires disqualification where the judge may have been of counsel.

Id . at 853 (citing Jenkins v. State , 570 So.2d 1191, 1192 (Miss. 1990)).

The Court stated that in a case involving the disqualification of a judge the presumption is “that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a ‘reasonable doubt’ about the validity of the presumption.” Buchanan v. Buchanan , 587 So.2d 892, 895 (Miss. 1991) . The Court in Buchanan went on to state that the rule was not whether the judge was biased or prejudiced in fact, but whether the a fair-minded person with knowledge of all the facts might reasonably question the judge's impartiality. Id. at 896.

Therefore, the question of whether it is permissible for a sitting judge to hear a case where a former law partner or a former law firm is representing a party in a case before that judge is one for the judge to decide in the first instance, subject to review by the appellate court.

With regard to your third question, Section 177 of the Miss. Const. of 1890 provides:

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.

Section 103 of the Miss. Const. of 1890 provides:

In all cases, not otherwise provided for in this constitution, the legislature may determine the mode of filling all vacancies, in all offices, and in cases of emergency provisional appointments may be made by the governor, to continue until the vacancy is regularly filled; and the legislature shall provide suitable compensation for all officers, and shall define their respective powers.

Section 153 of the Miss. Const. of 1890 provides:

The judges of the circuit and chancery courts shall be elected by the people in a manner and at a time to be provided by the legislature and the judges shall hold their office for a term of four years.

In State ex rel. Collins v. Jones , 106 Miss. 522, 64 S. 241 (1913), the Mississippi Supreme Court held that with the adoption of the amendment to Section 153, Miss. Const. of 1890, the governor's power under Section 177 is removed.

Section 23-15-849 sets forth the statutory procedure by which judicial vacancies shall be filled:

(1) Vacancies in the office of judge of the Supreme Court or Court of Appeals or 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 hereinabove provided. (2) Elections to fill vacancies in the office of judge of the Supreme Court or Court of Appeals shall be held, conducted, returned and the persons elected commissioned in accordance with the law governing regular elections for judges of the Supreme Court or Court of Appeals insofar as they may be applicable.

If this office can be of any further assistance, please let us know.

Very truly yours,

Mike Moore Attorney General

Sandra Murphy Shelson, Special Assistant Attorney General