Mississippi Advisory Opinions May 21, 2004: AGO 2004-0180 (May 21, 2004)

Advisory Opinion Text

Paul A. Hurst, III, Esq.

Chief Counsel

Office of the Governor

Post Office Box 139

Jackson, Mississippi 39205

Re: Practice of Law by Special Judge

Dear Mr. Hurst:

Attorney General Jim Hood has received your recent letter on behalf of Governor Haley Barbour and has assigned it to me for research and reply. You request an official opinion from this office concerning the appointment of a “special judge” to the Mississippi Supreme Court. Your questions assume that the attorney at issue shall be recused in all cases where the attorney's impartiality might be questioned or cases where the attorney or the attorney's firm has any involvement.

Before turning to your specific questions, we set out the authority which we considered in reaching our responses to your requests. Article 6, Section 165 of the Mississippi Constitution of 1890, is set out below.

No judge of any court shall preside on the trial of any cause, 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 judge and of the parties . 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 the place of the judge or judges so disqualified. [Emphasis added.]

Section 9-1-105 of the Mississippi Code of 1972, as amended, also sets out authority for the appointment of a special judge.

Regardless of whether constitutional or statutory authority is used to appoint a special judge, one so appointed is subject to the above, to additional statutory authority, and to the Code of Judicial Conduct. Section 9-1-25 of the Mississippi Code of 1972, as amended, provides as follows:

It shall not be lawful for any judge of the Supreme Court, Court of Appeals or a judge of the circuit court, or a chancellor to exercise the profession or employment of an attorney or counselor 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 or circuit 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 . [Emphasis provided.]

Section 9-1-11 of the Mississippi Code of 1972, as amended, states that

[t]he judge of a court shall not preside on the trial of any cause 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, or wherein he may have been of counsel, except by the consent of the judge and of the parties.

The Code of Judicial Conduct does not apply, in its entirety, to a special judge. Or, as stated in the “Application” section of the Code:

A special judge shall not, except while serving as a judge , be subject to the restrictions and limitations of Section 4A. A special judge shall not, at any time , be subject to the restrictions and limitations of Section 4B, 4D, 4E, 4F, 4G, and 4H. A special judge, except while serving as a special judge or while a candidate for judicial office, shall not be subject to the restrictions of Canon 5. [Emphasis added.]

Canon 4 prescribes rules by which a judge shall conduct his or her extra-judicial activities to minimize the risk of conflict with judicial obligations. Canon 5 prescribes rules by which a judge or judicial candidate shall conduct political activities. Also of note is Canon 3.E. Disqualification, which requires judges to “disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law[.]”

We turn now to your specific questions.

1. If a practicing attorney is selected as a “special judge” for service on the Supreme Court, may the practicing attorney remain of counsel in all cases presently pending in the state and federal courts and may he practice in any of the courts during his tenure as a special judge?

In response, Canon 4.A., which applies to one serving as a special judge, states that a “judge shall conduct all of the judge's extra-judicial activities so that they do not: 1) cast reasonable doubt on the judge's capacity to act impartially as a judge; 2) demean the judicial office; or 3) interfere with the proper performance of judicial duties.” Canon 4.G., which does not apply to a special judge, prohibits a judge from practicing law. Canon 3.E., which applies to a special judge, requires judges to disqualify themselves in all circumstances in which their impartiality might be questioned.

We turn to a rule of statutory construction, in pari materia , for assistance. The Mississippi Supreme Court has described this doctrine as the rule by which each section of the Mississippi Code dealing with the same or similar subject matter is be read together to give effect to each. Mississippi Pub. Serv. Comm'n v. Municipal Energy Agency of Mississippi , 463 So.2d 1056, 1058 (Miss.1985) . Reading these Canons together as we would statutory authority, it is the opinion of this office that a practicing attorney selected as a special judge for service on the Supreme Court may remain of counsel in all cases presently pending in the state and federal courts. This opinion is based on the assumption, stated above, that Canon 3.E. would require the special judge to recuse himself in any case in which his impartiality might be questioned or where the attorney or the attorney's firm has any involvement.

However, it is also the opinion of this office that, pursuant to Section 9-1-25 which applies to any judge of the Supreme Court, a special judge may not be engaged in the practice of law and, therefore, a special judge may not practice in any of the state courts during his tenure as a special judge. A special judge may, pursuant to the same statute, practice in the federal courts in any case in which he or she was engaged when appointed special judge.

2. Upon the expiration of the attorney's term of service, may the attorney return to all cases in which the attorney was designated as counsel of record before his selection as “special judge?”

Once the attorney has concluded his or her service as a special judge, the prohibition of Section 9-1-25 would no longer apply. Therefore, it is the opinion of this office that the attorney may return to the practice of law in all cases in which the attorney was designated as counsel of record before his selection as special judge.

3. It is anticipated that the duration of the appointment would be for no more than twelve months, but does the length of the appointment's term change this analysis?

The length of the appointment's term does not change the above analysis or conclusions.

If we may be of further service, please let us know.

Very truly yours,

Jim Hood Attorney General

Charlene R. Pierce Special Assistant Attorney General.