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IN THE SUPREME COURT OF MISSISSIPPI
OFFICE OF THE CLERK
SUPAEME COURT C OUAT OF APPEAlS
IN RE: ORDER ESTABLISHING CIVIL AND CRIMINAL DIVISIONS IN THE HINDS COUNTY CIRCUIT COURT
PETITION FOR EMERGENCY JUDICIAL RELIEF. PURSUANT TO M.R.A.P. 27(g), BY JUDGE JEFF WEILb SR., HINDS COUNTY CIRCUIT COURT JUDGE
TABLE OF CONTENTS ISSUES BRIEF STATEMENT IN SUPPORT OF JUDICIAL RELIEF PROCEDURAL HISTORY APPLICABLE LAW Rulemaking and the Mississippi Supreme Court A. Miss. Code Ann. §9-7-25(2) and "Convenience" 1. Judge Green's Actions are Contrary to the Statute's Stated Purpose a. The Statistics Say it All- Pending Cases b. The Statistics Say it All- Case Dispositions B. Judge Green's Actions go Beyond the Intent of §9-7-25(2) 1. The Administrative Nature of the Statute pg. 4 pg. 4 pg. 5 pg. 8 pg. 9 pg. 11 pg. 11 pg. 12 pg. 14 pg. 18 pg. 18 pg. 20 pg. 20
2. The Statute's Clear Mandate Concerning Authority 3. Distinguishing Between Circuit Court and County Court
C. Miss Code Ann. §9-7-3(5) and the Actual Authority ofa Senior Circuit Judge ..... pg. 21 1. Limits on a Senior Circuit Judge's Authority Regarding Reassignment of Cases
2. Limits on a Senior Circuit Judge's Authority Regarding Initial Assignment of Cases pg. 24 D. Judicial Administrative Regulations Can, and Should, "Supercede" Similar Attempts by the Legislature 1. Administrative Rules Should Promote Fairness and Efficiency pg. 25 pg. 25 pg. 27 pg. 29 pg. 30 pg. 32
2. Previous Ruling of this Court Supports Relief Requested E. Rights of Mississippi Voters Should be Considered
F. Suggested Solution CONCLUSION
COMES NOW Hinds County Circuit Judge Jeff Weill, Sr., and files with this Honorable Court his Petition for Emergency Judicial Relief regarding the April 17, 2012 "Order Establishing Civil and Criminal Divisions in the Hinds County Circuit Court," (hereinafter "Case Assignment Order")' entered by Hinds County Senior Circuit Judge Tomie Green. Pursuant to Mississippi Rule of Appellate Procedure 27(g), "[o]rders entered and other actions in the chancery and circuit courts setting terms of court and assigning causes and dockets ... are subject to review by the Supreme Court on petition of any judge of the district ... " M.R.A.P. 27(g). The Supreme Court has before it Judge Green's aforementioned Case Assignment Order, entered on the minutes in the Hinds County Circuit Court on April 17, 2012. The Case Assignment Order purports to upend the assignment process of the largest judicial district in the state, Hinds County, dividing the court into civil and criminal divisions effective August 1,2012. The implementation of Judge Green's plan will be very costly to the taxpayers of Hinds County and extremely cumbersome for all court staff. Through the subject petition, pursuant to M.R.A.P. 27(g), the undersigned requests that the Court vacate the Case Assignment Order and prevent Judge Green's attempt to unilaterally expand the limited authority of a senior circuit judge. Given that Judge Green's Order provides only one hundred and five (105) days, from the time of its filing to the intended effective date, to prepare and implement this massive upheaval and that preparations for the same are underway, the undersigned is also forced to request emergency relief from this Honorable Court.
1 The 2
CaseASSignmentOrder is attached as "Exhibit A."
Judge Green's initial proposed date for her "divided court system" was December 31, 2012. Her recent order unilaterally expedited the process-by five months--which requires implementation of her "Split Random" Court System on August 1, 2012 The undersigned has no other choice but to request expedited consideration. 3
ISSUES Does Judge Tomie Green have authority, as senior circuit judge of Hinds County, Seventh Circuit Judicial District, to: 1) Divide the Hinds County Circuit Court into civil and criminal divisions, if the specific legislative purpose for doing so, "convenience," will not be served by such action? Miss. Code Ann. §9-7-25; 2) Arbitrarily assign circuit judges, all duly elected, to preside over just one court division, civil or criminal, despite the legislature's clear mandate that "there shall be no limitation whatsoever upon the powers and duties of [the Seventh Circuit Court judges]?" Code Ann. §9-7-2S; 3) Unilaterally dictate the assignment of cases currently pending on the undersigned's Miss.
respective docket, and subjectively reassign the cases, wholesale, to another judge's docket?
IN SUPPORT OF JUDICIAL
The undersigned submits that the answer to each question posed above is a resounding "No." Accordingly, the undersigned petitions for expedited relief. Several years ago, on January 23,2003, Hinds County Circuit Judge Tomie Green entered an order entitled "Order Setting Aside the Order of Reassignment by Judge Swan Yerger." In that order, Judge Green
attempted to reverse an action of reassignment made by then-Senior Judge Yerger. Judge Green candidly "ordered" that "the title of 'senior judge' does not authorize Judge Yerger, sua sponte, to selectively remove properly randomly assigned cases from another circuit judge's docket without the judge's approval and/or agreement." Order Setting Aside the Order of Reassignment
by Judge Yerger, Thomas v. Charter Behavorial Health System, et aI., Hinds County Circuit
Court No. 251-01-07 ClV (bold emphasis in original) (underlined emphasis added). 3 Now that Judge Green is the senior judge of the Hinds County Circuit Court, pursuant to Miss. Code Ann. §9-7-3(5), her position has drastically changed. She purports, by sua sponte Order, to do exactly what she "ordered" to be improper actions by a senior judge in 2003. While the underlying circumstances of the 2003 matter and today's issues are different, the principle remains the same: Judge Green is attempting to bestow power upon herself, in the position of senior judge, without any basis in law. Quite simply, now that Judge Green has the title of "senior judge" her interpretation of a senior judge's authority has exponentially expanded. Ifpermitted by the Supreme Court, Judge Green intends to do the very thing that she "ordered" the previous senior judge not to do. This Petition will show that Judge Green's interpretation of the law is flawed and that her actions regarding the assignment of cases in Hinds County are not permissible, either under the Mississippi Constitution, under Mississippi law, or under the Mississippi Rules of Court. Accordingly, the undersigned seeks emergency relief from this Court.
PROCEDURAL HISTORY In October, 2011, the four (4) circuit judges of the Seventh Circuit Judicial District met and began preliminary discussions about joining together to submit proposed local rules for approval by the Supreme Court. At that time, the undersigned brought forth numerous suggestions and drafted a memorandum including suggested language for various rules, as
Notably, the Mississippi Supreme Court agreed, in part, with Judge Green. The Court found that any issues
regarding judge shopping should have been brought before Judge Green, as the judge assigned to the matter, not to Judge Yerger, as senior judge. As a result, the Supreme Court set aside the various orders of assignment and provided that the case would be randomly reassigned, pursuant to U.C.C.C.R. 1.0SA, excluding Judge Green in the rotation. Implicitly, the Supreme Court agreed with Judge Green that the senior judge did not have the authority to unilaterally remove a randomly assigned matter from another judge's docket. See In re: Latoya L. Thomas, Order, 2003-M-28S, July 23, 2003.
requested by Judge Green. Since that time, the undersigned was not privy to any further discussion, if any, regarding the proposed local rules until March 18,2012. On that date, Judge
Green e-mailed the three additional circuit judges, stating that she had finally reviewed the comments regarding the proposed local rules and was attaching a draft set of proposed local rules, encompassing many of the suggestions made previously. Judge Green also stated that she had added a "Rule 1 that deals with the assignment of cases," which was the first instance that the undersigned was aware of Judge Green's "divided court system" proposal. Judge Green requested that the judges meet on Thursday, March 22,2012 to offer feedback, as she intended to submit the proposed local rules by Friday, March 23,2012. At the meeting, attended by all four
circuit judges, the undersigned voiced several logistical and practical concerns with the proposal which were not considered by Judge Green. Later on March 22,2012, Judge Green sent another e-mail to the circuit judges with her latest draft (but forgetting to include the attachment) of the proposed local rules, including her additional unilateral changes to "Rule 1- Assignment of Cases." The attachment with Judge Green's unilateral changes was later sent on March 26, 2012, along with an announcement of Judge Green's intentions to submit the rules the very next day. The undersigned quickly responded with an e-mail to Judge Green stating: "I still have many questions and concerns about your case assignment proposal and am unwilling to sign the Proposed Local Rules as written." The undersigned went on to request more time to review the latest changes (received one day prior), due to the undersigned being in a criminal trial. On March 30,2012, Judge Green responded via e-mail, stating that "the law leaves this to my discretion" and conveying her intentions to submit the rules, including Rule 1- Assignment of Cases, on Monday, April 2, 2012. Despite Judge Green's e-mail just one business day prior, on
April 2, 2012, Judge Green e-mailed the remaining judges yet another version of the proposed local rules; this version did not include any mention of the "assignment of cases." In the body of
the e-mail, Judge Green stated that she had "decided to enter my assignment of cases order on the minute book in accordance with case law." She stated that each judge's signature was requested that same day on the proposed local rules. The undersigned responded, requesting an explanation regarding the omission of the contentious Rule 1- Assignment of Cases; the undersigned also pointed out several typing errors to be corrected. The undersigned stated his willingness to be cooperative regarding the submission of proposed local rules, but requested to be fully informed regarding the process, including Judge Green's intentions regarding changes to the case assignments. On April 2, 2012, the undersigned was presented with the earlier sent proposed local rules for signature, which still included several typing errors. Accordingly, the undersigned declined to sign the proposal, pending correction of the errors. On April 12, 2012, after receiving nothing further from Judge Green, the undersigned sent a follow-up e-mail to Judge Green requesting a status update on the proposed local rules. The undersigned expressed willingness to sign the latest proposed version (which omitted Rule 1- Assignment of Cases) once the typing errors were corrected. The undersigned also volunteered to help finalize the rules and make any necessary corrections. Judge Green did not
respond, but on April 13, 2012, the undersigned received a hand-delivered copy of the Seventh Circuit Court's Proposed Local Rules, which were filed, without the undersigned's at the Mississippi Supreme Court seven days prior with the undersigned's knowledge,
signature line left
blank. In order to join in the proposal, the undersigned sent separate correspondence to the Supreme Court Clerk's office and to the Chief Justice's office, with copies to the circuit judges. In culmination of this issue, on April 17, 2012, Judge Green entered her "Order Establishing Civil and Criminal Divisions in the Hinds County Circuit Court," whereby she intends to divide the circuit court into civil and criminal divisions, strip any pending, properlyassigned criminal cases from the undersigned as of August 1, 2012, and bestow upon herself
expo~ential, unlimited case assignment authority, circumventing the random case assignment system at her will and pleasure. Thus, the need for intervention by this Court is extraordinary.
The Mississippi Supreme Court, speaking through its appellate rules, unequivocally mandates that "[t]he setting of terms and assigning of causes and dockets in the chancery and circuit courts shall be done fairly considering the relative work loads of the judges and the right of litigants within the district to fair and reasonable access to all of the judicial officers .... " M.R.A.P. 27(g) (emphasis added). Contrary to that mandate, Senior Hinds County Circuit Judge Tomie Green has entered an order purporting to establish civil and criminal divisions in the Seventh Circuit Court District and purporting to dictate entirely the parameters regarding all future and past case assignments, effective August 1,2012. Judge Green, if permitted, intends to docket
strip the undersigned of all of the criminal cases that remain pending on the undersigned's
as of August 1,2012, and reassign them, wholesale, to the docket of Hinds County Circuit Judge William Gowan. Judge Green also plans to take the same action with the criminal cases Further, Judge Green
assigned to Judge Winston Kidd and assign them to her own docket.
intends to reassign her entire civil docket to Judge Kidd and reassign Judge Gowan's civil docket to the undersigned.
Additionally, Judge Green intends to divide the Hinds County Circuit
Court into criminal and civil divisions, appointing each of the four circuit judges to only one division, Judges Green and Gowan to the criminal division and Judges Weill and Kidd to the
Apparently, Judge Green's decision to order a wholesale "reassignment" on August 1, 2012, rather than have the casesrandomly reassigned, is attributed to "the need for diversity in each division." Green Order, pg. 2. The undersigned submits that considerations of race and diversity are improper in a judicial context, as Canon 3(C)(l) of the Code of Judicial Conduct requires a judge to "diligently discharge the judge's administrative responsibilities without bias or prejudice ..." Canon 3(C)(l), Mississippi Code of Judicial Conduct. To be clear, the undersigned opposes a respective division of cases,either by reassignment or random reassignment. Nevertheless, "the need for diversity" as expressed by Judge Green mayor may not be relevant to Hinds County voters in the judicial election process, but is certainly not relevant to judicial case assignments.
civil division. With all due respect, the undersigned submits that Judge Green's actions are not constitutionally, legally or logically sound.
Rule Making and the Mississippi Supreme Court Pursuant to the Mississippi Constitution, "[t]he judicial power of the state shall be vested in a Supreme Court and such other courts as are provided for in this constitution." Miss. Const.
art. VI, §144. Further, the Constitution provides that "[t]he circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court, and such appellate jurisdiction as shall be prescribed by law." Miss. Const. art. VI, § 156. The legislature has enacted laws relevant to the circuit court, but has also recognized that the Mississippi Supreme Court, pursuant to the Constitution, has the "power to prescribe ... the forms ofprocess ... and the practice and procedure for trials." Miss. Code Ann. §9-3-61.
The present scenario before this Court is of paramount importance to the largest judicial district in the State of Mississippi: the Circuit Court of the Seventh Judicial District of Hinds County. The "wheels of justice" will move at an unacceptable pace without intervention from the Mississippi Supreme Court on this issue. On April 17, 2012, Senior Hinds County Circuit
Judge Tomie Green ordered, sua sponte, that the Hinds County Circuit Courts shall be divided into two divisions, civil and criminal. Judge Green cites Miss. Code Ann. §9-7 -25(2) and Miss. Code Ann. 9-7-3(5) in support of her order, her misapplication of which will be discussed herein. Judge Green's Order is legally deficient based on several grounds. First, no search is necessary to discern the intent of the legislature when passing the law primarily relied upon by Judge Green. In fact, the legislative purpose of Miss. Code Ann. §9-725(2) can be found within the text of the code section itself. Judge Green's attempt to divide the
Seventh Judicial District circuit court directly contradicts the legislature's intent, and her Case Assignment Order should be stricken based on the same.
In addition, the undersigned respectfully submits that Judge Green's Order directly conflicts with the Mississippi Constitution and Mississippi law further defining the power and duties of circuit court judges. Judge Green's Order also is entirely inconsistent with Judge Green's own previous "Orders" and her positions regarding the authority, and lack thereof, of a senior circuit judge, especially whether a senior circuit judge can unilaterally remove cases from a duly elected circuit judge for reassignment at her will and pleasure. Finally, and most
importantly, should this Honorable Court disagree with the undersigned and find that Judge Green's Case Assignment Order does comport with the parameters bestowed upon the authority of a senior circuit judge, the need for intervention by this Court remains. The Mississippi Supreme Court has clearly recognized its ability and its duty to exercise "its inherent authority to adopt rules of practice, procedure and evidence to promote justice, uniformity, and the efficiency of the courts, as articulated in Newell v. State, 308 So.2d 71 (Miss 1975) and Hall v. State, 539 So.2d 1388 (Miss. 1989)." Comments, U.C.C.C.R. 1.05A. As an alternative relief request, the undersigned asks that the Court exercise its inherent authority under the instant circumstances. In sum, the undersigned submits that Judge Green's actions are contrary to the Mississippi Constitution and based upon a misapplication of Mississippi law. However, should this Court disagree, the undersigned requests that this Court "supercede" the legislature, as it did in 2002, by adopting and/or clarifying the rules regarding the assignment of cases in the circuit court. Comments, U.C.C.C.R. 1.0SA. As in 2002, the circumstances presented by Judge Green's Order also involve the assignment of cases in the trial court, and as in 2002, the "promotion of justice," the need for "uniformity" in the courts and the "efficiency of the courts" necessitates swift prohibitive action by this state's highest court.
A. Miss. Code Ann.§9-7-25(2l
Judge Green's Actions are Contrary
to the Statute's
"Convenience" is defined as "[ s]omething that increases comfort or saves work." The American Heritage Dictionary a/the English Language 401 (Houghton Mifflin 4th ed 2000). Judge Green's proposal to split the Seventh District Circuit Court into Criminal and Civil divisions neither "increases comfort" nor "saves work." Judge Green's Order cites Miss. Code Ann. 9-7-25(2) as primary authority for her court divisions. A full reading of the relevant section reveals that Judge Green's actions were not contemplated or sanctioned by the legislature. Miss. Code Ann. §9-7-25 pertains to the judges, districts and terms of court in the Seventh Circuit Court Judicial District of Mississippi. It states:
(1) There shall be four (4) circuit judges for the Seventh Circuit Court District. One (1) judge shall be elected from each subdistrict. (2) While there shall be no limitation whatsoever upon the powers and duties of the said judges other than as cast upon them by the Constitution and laws of this state, the court in the First Judicial District of Hinds County, in the discretion of the senior circuit judge, may be divided into civil and criminal divisions as a matter of convenience, by the entry of an order upon the minutes of the court.
Miss. Code. Ann. § 9-7-25 (emphasis added). Clearly the statute gives the district's senior circuit judge (Judge Green) authority to divide the court terms into civil and criminal divisions, if the same would "increase comfort or save work." Instead, Judge Green's "division of the court" achieves the converse, causing a significant, unwarranted, increase in the undersigned's and the other circuit judges as well. The only argument for "convenience" docket,
can be made by Judge
Green, herself, and it is constitutionally controversial, to say the least. Pursuant to her Case Assignment Order, Judge Green intends to preside over only criminal cases.
It is noteworthy
This is irrespective of the additional provision which requires that all "emergency writs, temporary restraining orders or petitions for probable cause hearings" be assigned to the senior judge for "random reassignment among 11
· that Judge Green currently delegates most preliminary matters for criminal cases on her docket to a Hinds County County Court judge.
While Judge Green's workload may decrease as a result
of her "delegation" to county court, the undersigned would be faced with a massive civil docket without similar relief.
a. The Statistics Say it AU- Pending Cases This Court has made clear that the "assigning of causes and dockets in the chancery and circuit courts shall be done fairly considering the relative work loads of the judges ..." M.R.A.P. 27(g). A brieflook at the numbers is all that it takes to ascertain that Judge Green's Case Assignment Order does not contemplate fairness or the relative work loads of the judges. According to Hinds County data," Judge Green's docket currently has 1,925 pending civil cases and 933 pending criminal cases; Judge Kidd has 1,754 pending civil and 859 criminal; Judge Gowan has 757 pending civil and 854 criminal; and Judge Weill has 539 pending civil and 584
the four (4) circuit judges or county judges, pursuant to Section 9-9-35 Mississippi Code Annotated,"
using the "random assignment system," pursuant to U.C.C.C.R. 1.05A. Case Assignment Order, pg. 2. This provision indicates that Judge Green intends to assign some or all of these types of matters to county court judges, pursuant to Miss. Code Ann. §9-9-35, which permits assignment overcrowded dockets. This is yet another problematic unilateral to county court judges only in the event of expansion of a senior judge's authority. It is
arguable that Judge Green could assign any of her cases to a county court judge, in the event of an overcrowded docket. However, there is no Mississippi legal provision that permits county judges to be added to the random rotation assigning circuit court filings. Further, §9-9-35 may only be utilized if counsel on both sides does not object. Miss. Code Ann. §9-9-35. M.R.A.P. 27(g) requires that assignments of cases be done through a "systematic pian." Instead, Judge Green's parameters regarding emergency writs, et aI., constitute an uncertain, subjective plan.
has no knowledge
Judge Green gives all counsel an opportunity
to voice any
pursuant to Miss. Code Ann. §9-9-35.
7 The undersigned would not seek relief, even if available, by delegating a large portion of the ancillary matters to another lower court judge, who has his or her own docket to manage. The undersigned, as a constitutionally elected circuit judge, believes that each circuit court judge has a duty to hear all assigned cases. The undersigned,
therefore, would not delegate the same to a county court judge, who is not charged under the Mississippi Constitution with resolution of the same. This reference herein is solely to provide a possible basis for Judge Green's court divisions and to show that the proposal would only serve to decrease Judge Green's caseload. The proposal would increase the caseloads of the remaining three circuit judges and at least one county court judge.
pending matters as of March 27, 2012. 12
In addition, Judge Hilburn, who served as a special criminal judge until the end of
April, 2012, (when his grant expired), had 582 pending criminal cases, which are only slightly accounted for in Judge Green's Case Assignment Order. Pursuant to Judge Green's Reassignment Order, the respective dockets of each judge, not accounting for new filings made after August 1,2012, will be approximately as follows: Judge Green: 1,792 criminal cases, plus mental health court responsibilities Judge Gowan: 1,438 criminal cases, plus any Second District civil cases Judge Kidd: 3,679 civil cases, plus drug court responsibilities Judge Weill: 1,296 civil cases As clearly evidenced by the figures, Judge Green's flawed "reassignment" plan is inapposite of the Supreme Court's mandated factors of "fairness" and the "relative workloads of the judges." Id. Instead of those mandated considerations, Judge Green admits that she placed emphasis on her own set of criteria, including "the need for diversity in each division." Case Assignment
Order, pg. 2. The issues with Judge Green's reassignment plan do not require an advanced legal background to discern. The fact that, as of August 1,2012, Judge Kidd will have approximately 2,383 more civil cases than Judge Weill, and Judge Green will have approximately 354 more criminal cases than Judge Gowan speaks volumes. Notably, Judge Green did include another provision bestowing additional power upon herself related to her seemingly unlimited reassignment authority. Judge Green states that her Case Assignment Order should not be construed "as precluding the undersigned senior judge from "reassigning cases as necessitated by recusal, consolidation or transfer of cases to promote the fair and equitable distribution of cases among the circuit judges." Case Assignment Order,
pg. 2. This provision seems to give Judge Green discretion to redistribute cases at her will, if
The pending criminal case numbers
capiases that have not been executed and capiases that have been
executed but not disposed.
dockets are unfairly balanced. As shown, as of August 1,2012, the court division dockets will be unbalanced. Should Judge Green decide to exercise her discretion and redistribute cases in "equal" amounts, the undersigned could potentially end up with 2,487 pending civil cases, irrespective of any new filings.l" This amounts to punishment for diligence, since under the current system, the undersigned currently has 1.123 total pending cases, both civil and criminal. Through no fault of his own, Judge Green's unfettered discretion could result in the undersigned's docket doubling in size. This system is especially nonsensical when considered with the disposition statistics next discussed. Most importantly, Judge Green's plan is dramatically "inconvenient" to all litigants, court staff, attorneys and to all Hinds County Citizens, thereby failing to comply in its entirety with the legislature's intended purposes for "court divisions."
h. The Statistics Say it All- Case Dispositions
As shown, eachjudge's docket statistics that would result from Judge Green's Case
Assignment Order do not support Judge Green's explanatory rhetoric of "efficient" and "effective" case management. Even more relevant to the assignment plan's lack of efficiency are
the case disposition statistics. In a few brief statements, Judge Green's Case Assignment Order attempts to portray the court division plan as promoting a "more efficient, effective and timely
10 Of course, by doing so Judge Green would contradict her own stated rationale of "the need for diversity" in making case assignments. 11 The undersigned wishes to emphasize that the undersigned's strong opposition to Judge Green's proposal does not stem from a desire to maintain the smallest docket. Instead, the undersigned's primary considerations are fairness and the requirement of effective docket management. The undersigned's current docket status is solely a product of undersigned's (and his predecessors') hard work and diligence in resolving cases. Under the current case assignment system, the Seventh Circuit District judges receive an equal number of random case assignments, making the assignment process fair regarding "the relative work loads of the judges." M.R.A.P.27(g). Despite receiving an equal percentage of cases,Judge Green has a substantially higher number of pending caseson her respective civil and criminal dockets than does the undersigned. The undersigned's (and his predecessors') efforts in effective docket management should not result in a rash reassignment of casesto "equalize" the docket. Despite Judge Green's docket statistics, the assignment process was equal all along. The undersigned will continue to "dispose of all judicial matters promptly, efficiently and fairly," as required. Miss. Code of Jud. Conduct, Canon
resolution ofall ...cases," which will allow more "flexibility in the management" of the dockets. Case Assignment Order, pg. 1. Judge Green also states that her plan will diminish "delays in civil case resolution" and "reduce any backlog of criminal cases" and assist with efforts to "fast tract [sic] civil and criminal cases left over by numerous special judges."
Id. at 2. Judge
Green's statements are merely bare-boned assertions that are unsupported by the facts. The case disposition numbers tell the true story of the "effectiveness" and "efficiency" of the Hinds County Circuit Court.
According to the statistics office at the Administrative Office of Courts, the following numbers represent the civil and criminal dispositions for the year of 20 1113 for the Seventh Circuit Judicial District elected judges: Judge Green: Total Criminal Dispositions (including multiple counts)- 323 Total Civil DispositionsJudge Gowan:
Total Criminal Dispositions (including multiple counts)- 540 Total Civil Dispositions-
Total Criminal Dispositions (including multiple counts)- 505 Total Civil Dispositions295
Total Criminal Dispositions (including multiple counts)- 548 Total Civil Dispositions524
Similar records are also available through Hinds County. The undersigned assumes that Judge Green relies on the Hinds County figures, as she recently sent out an e-mail containing Hinds County statistics representing her twelve (12) years on the bench; however, the AOC and
12 While there is certainly room for improvement in disposition numbers, especially regarding the largest dockets, Judge Green's CaseAssignment Order would diminish, rather than increase, any chances for improvement. 13 The
2011 calendar year represents the first full year during which all four elected circuit judges served full-time. 15
Hinds County figures for 2011 are substantially the same.
According to the Hinds County
statistics, the following numbers represent the civil and criminal dispositions for the year of 20 II for the Seventh Circuit Judicial District elected judges: Judge Green: Total Criminal Dispositions (including multiple counts)- 467 (144 more than the AOC figure) Total Civil DispositionsJudge Gowan: 261 (51 less than the AOC figure)
Total Criminal Dispositions (including multiple counts)- 686 (146 more than the AOC figure) Total Civil Dispositions311 (22 less than the AOC figure)
Total Criminal Dispositions (including multiple counts)- 624 (119 more than the AOC figure) Total Civil Dispositions220 (75 less than the AOC figure)
Total Criminal Dispositions (including multiple counts)- 558
(10 more than the AOC figure)
Total Civil Dispositions663 (139 more than the AOC figure)
Judge Green's Case Assignment Order proposes to divide all criminal cases'" between her own docket and Judge Gowan's docket and all civil cases between Judge Kidd's docket and Judge Weill's docket. This is true for any new cases filed after August 1,2012, and for any cases still
14 The undersigned has included both figures for completeness. The legislature provides that the Administrative Office of Courts has the authority to collect and compile statistical data for the circuit courts. Miss. Code Ann. § 921-9(a). The Hinds County computer system is somewhat dated, and relies upon accurate data input by the circuit clerk's office. Accordingly, the undersigned has relied mostly on the AOCstatistics herein.
Very few of Judge Green's criminal dispositions resulted from jury trials. According to Hinds County data, Judge Green presided over 5 criminal trials in 2011. Further, according to the Hinds County statistics sent by Judge Green, representing her entire tenure as a judge (more than 12 years), she has presided over 40 criminal jury trials (averaging approximately 3 per year). According to the AOCstatistics, Judge Green has presided over 12 criminal jury trials (averaging approximately 1 per year).
15 16 As an exception, the Order proposes that all capital murder and death penalty cases will continue to be randomly assigned among the four judges. According to Hinds County statistics, in 2011 a total of 2,631 indictments, including multiple counts, were issued. Only 9 of the 2,631 were capital murder and/or death penalty
.pending as of that date. Judge Green made a unilateral determination as to which judges would
be "assigned" to each division without consideration of "any requests and needs of all judges within the district." M.R.A.P.27(g). In her Case Assignment Order, Judge Green cites the
following seven (7) factors that she used in determining division assignments:
(l) the experience, background, and training of each circuit judge; (2) the need for
diversity in each divisions; (3) the need for reorganization to fast tract [sic] civil and criminal cases left over by numerous special judges; (4) the need for fairness in the apportionment of cases; (5) the need to comply with constitutional mandates in stale criminal cases; (6) greater calendar flexibility and management in all criminal and civil cases; and (7) the forthcoming and long-term implementation of an electronic filing system in the management of cases in Hinds County Circuit Court. Case Assignment Order, pg. 2. Judge Green provides no numerical or statistical support for her division assignment, for obvious reasons. Under Judge Green's own proposal, her docket will be comprised of a majority of the criminal cases pending in Hinds County, specifically, at least, 1,792 cases. This is despite the fact that the undersigned, as a freshman judge, resolved 225 more criminal cases than Judge Green in 2011, according to the AOC statistics, trial.
many by jury
In addition, under Judge Green's proposal, as of August 1,2012, Judge Kidd's docket
would consist of at least 3,679 civil cases, a clear majority. Needless to say, the "need for fairness in the apportionment of cases" was not addressed by Judge Green in the slightest. Further, Judge Green's unilateral division assignments were supposedly made in consideration of each judge's "experience, background and training." that Judge Green never inquired about the undersigned's The undersigned submits
experience, background and training,
and it is likely that Judge Green is totally unaware of the same.
In sum, Judge Green's cited
"factors" in determining the so-called "need" for a divided court and division assignments are
addition, Judges Kidd and Gowan resolved more criminal casesthan Judge Green in 2011,
2011, the undersigned's first year on the bench, the undersigned presided over fifteen (15) criminal jury trials, more than any other circuit judge. include the fact that the undersigned has experience, background and training, both as a former criminal prosecutor and criminal defense attorney and as a civil litigator and mediator. 17
19 This would
contrary to M.R.A.P. 27(g), and as the statistics demonstrate, her reasoning is fatally flawed. 20 The undersigned stated earlier that only Judge Green's docket would possibly fit into the legislative purpose of court divisions, "convenience." However, the statistical evidence indicates
that even considering the fact that Judge Green currently sends certain criminal matters on her docket to county court, it would be impossible for a full time county judge to handle all criminal arraignments in regards to more than 1,700 circuit court criminal cases, (which Judge Green's docket stands to receive), even if all attorneys agreed, pursuant to Miss. Code Ann. §9-9-35. Upon a close look at the details which were unfortunately omitted from the Case Assignment Order, the only rational conclusion is that the Case Assignment Order would not serve to benefit, or "convenience," any of the involved parties or the judiciary. As discussed below, Judge Green's interpretation of Miss. Code Ann. §9-7-3(25) is flawed, when considering the statute's context. However, even if the statute can be used to divide the court system, rather than the court
terms, Judge Green's Case Assignment Order is not proper, pursuant to the legislative purpose
cited in Miss. Code Ann. §9-7-3(25).
B. Judge Green's Actions go Beyond the Intent of the Statute
1. The Administrative Nature of the Statute Context of the applicable statute is also relevant. The primary statute which Judge Green relies upon, §9-7-25(2), is found in Chapter Seven of the Mississippi Annotated Code, in the subsection entitled "Judges, Districts, and Terms of Court." The first two statutes of the subsection, §9-7-1 and §9-7-3, provide the term of office and residency requirements of a circuit
Judge Green does not clarify whether the "division assignments" will alternate from year to year, but in various e-mails she does represent that her assignments will be evaluated periodically, presumably for further reassignments. This presents an additional reason why Judge Green's plan is detrimental to the Hinds County Circuit Courts. If a circuit judge goes an entire year (or more) presiding over few criminal matters, the judge, understandably, becomes "rusty" regarding the numerous criminal procedures and the latest criminal laws. The same would be true for a circuit judge who is forced to cease presiding over all civil matters. This would necessarily make any future "division switch," either by Judge Green or a new senior circuit judge, difficult for the parties and the judiciary.
judge and a general overview of the minimum requirements for terms of court. Miss. Code Ann. §9-7-1; §9-7-3. The remaining statutes in the aforementioned subsection provide for the division of all Mississippi counties into each of the twenty-two judicial districts and the number of circuit judges to be elected in eachdistrict, The entire subsection "Judges, Districts, and Terms of Court" is strictly administrative in nature. See Miss. Code Ann. 9-7-1 (et seq.). Importantly, the substantive laws of the circuit courts are contained in an entirely separate subsection entitled "Jurisdiction, Powers and Authority." See Miss. Code Ann. 9-7-81 (et seq.). As a result, the provision cited by Judge Green does not support her interpretation of court divisions. Since the relevant statue is found in the "terms of court" subsection rather than the "jurisdiction, powers and authority" subsection, the undersigned submits that the legislature intended that the senior judge of the Seventh Judicial District could divide the court terms, not the court system, into civil and criminal sections, particularly if division of the court terms would be convenient, i.e. "increase comfort or save work." Dividing court terms could theoretically save work in the administration of cases by potentially enabling the circuit clerk's office to streamline the process for court filings, summoning jurors and compiling uniform schedules in the respective divisions. In fact, it is the undersigned's understanding that Judge Green already divides her court terms into exclusively civil or criminal.f Dividing the court system, as Judge Green's Case Assignment Order intends, would affect the ''jurisdiction, powers and authorities" of all circuit judges in the Seventh Judicial District. Logically, if the legislature had intended to permit the senior judge to restrict the "jurisdiction, powers and authorities" of similarly situated circuit judges, then the provision would be found in that very subsection.
Despite the fact that Judge Green currently uses divided court terms, during her exclusively criminal court terms in 2011, she presided over only 5 criminal jury trials, according to Hinds County statistics. These same statistics reveal that less than 2 percent of her total criminal case dispositions over her judicial career occurred due to jury verdicts. This strongly suggests that Judge Green's proposed division of court terms would not "minimize the risk of term-to-term speedy trial violations," as stated in the CaseAssignment Order. Case Assignment Order, pg. 2. 19
2. The Statute's Clear Mandate Concerning Authority
Not only is Judge Green's Case Assignment Order an extrapolation of the statute's legislative intent, the fact remains that the language of the §9-7-25(2) does not confer authority upon the senior judge to restrict another constitutionally-identical judge's jurisdiction over an
equitable share of both civil and criminal matters. The statute's specific, prohibitive language trumps Judge Green's attempt to broaden the same. In constructing Miss. Code Ann. §9-7-25, the legislature seemingly recognized the possibility of misinterpretation. Accordingly, the following explicit mandate was included:
''there shall be no limitation whatsoever upon the powers and duties of the [Seventh Circuit Court District] judges other than as cast upon them by the Constitution and the laws of this state." Miss. Code Ann. §9-7-25(2) (emphasis added). Simply stated "[t]he best evidence of legislative intent is the text of the statute." Mississippi Methodist Hosp. & Rehab. Ctr., Inc. v. Mississippi Div. of Medicaid, 21 So. 3d 600,607 (Miss. 2009). As previously referenced, the Mississippi Constitution and relevant Mississippi law bestows the same substantive powers and authority upon all circuit court judges. See generally Miss. Const. art. VI § 156; Miss. Code Ann. 9-7-3(5). The senior judge has certain administrative authority, which is limited. Miss. Code Ann. 9-7-3(5). Judge Green's Case Assignment Order has exceeded these very limitations.
Distinguishing Between Circuit Court and County Court
In Judge Green's Case Assignment Order, she states that her proposal is similar to the system currently used in Hinds County County Court, whereby one judge hears all civil cases, one hears all criminal cases, and one hears all youth court matters. Case Assignment Order, pg. 1. Additionally, Judge Green's Order also states that a split division was previously used in
Hinds County Circuit Court.22 Id. Both facts are inconsequential for several reasons. First, county courts are courts established by the Mississippi legislature, not by the Mississippi Constitution. Accordingly, the constitutionally-protected jurisdictional duties of the circuit court
judges, including all felony criminal matters and all civil matters exceeding $200,000, cannot be limited or restricted by the legislature, as can those of the county court judges. See Miss. Const. art. VI §156. The undersigned makes no challenge as to the divisions currently utilized in county court. Further, the former usage of divisions in circuit court, if any has occurred, is also irrelevant, since this issue appears to be an issue of first impression for the appellate courts, meaning no challenge was made at that time.
C. Miss Code Ann. §9-7-3(5) and the Actual Authority of a Senior Circuit Judge Judge Green's Case Assignment Order also cited Miss. Code Ann. §9-7-3(5) as support. Miss. Code Ann. §9-7-3, entitled "Terms of Court," is also included in the "Judges, Districts, and Terms of Court" subsection. In relevant part, the statute states:
In a district having more than one (1) office of circuit judge, there shall be no distinction whatsoever in the powers, duties and emoluments of those offices except that the judge who has been for the longest time continuously a judge of that court or, should no judge have served longer in office than the others, the judge who has been for the longest time a member of the Mississippi Bar, shall be the senior judge. The senior judge shall have the right to assign causes and dockets and to set terms in districts consisting of more than one (1) county. Miss. Code Ann. §9-7-3(5) (emphasis added). Again, the legislature has included a preemptive
provision in describing the authority of a senior circuit judge in order to protect important limitations thereon. The Mississippi Supreme Court, and even Judge Green herself, has recognized the necessary limitations on a senior judge's ability and authority to "assign causes and dockets." Id.
Judge Green refers to alleged split divisions in circuit court, both previously in Hinds County and currently in other counties, without providing any detail relevant to the specific procedure utilized. 21
Limits on Senior Judge's Authority Regarding Reassignment of Cases
As previously referenced, Judge Green's Case Assignment Order intends to effectuate the reassignment of all criminal cases on the undersigned's docket which have not been finally resolved as of August 1, 2012. These cases were initially randomly assigned to the undersigned's docket, and the undersigned has handled relevant matters during each case's pendency, including bond settings, evidentiary considerations and rulings, speedy trial issues, and more. Judge Green's intentions are to reassign these cases, wholesale, to Judge Gowan's docket. She also intends to issue a blanket reassignment of Judge Gowan's civil case docket to the undersigned, and plans to effectuate the same reassignment with her own docket and Judge Kidd's docket, reassigning all of Judge Kidd's criminal matters to her own docket and all of her civil matters to Judge Kidd's docket. The undersigned submits that it is currently routine and customary for the senior judge in the Seventh Circuit Judicial District to reassign a case from which a circuit judge recused himself or herself. However, according to the words of Judge Green herself, the extensive reassignment intended on August 1,2012 exceeds the bounds ofa senior circuit judge. Judge Green, prior to her tenure as circuit judge, vehemently objected to then-senior Judge Yerger's re-assignment of a case assigned to Judge Green's docket; Judge Yerger issued a reassignment order after being presented with allegations of judge shopping. In her petition for relief to this Court, Judge Green stated: "[a]ll circuit judges are co-equals in their authority to manage their properly assigned cases." Circuit Judge's Statement Regarding Plaintiffs' Petitioners' Writ of Mandamus, 2003-
M-285SCT, March 7, 2003, pg. 2. Judge Green further stated that "such conduct undercuts the principle that each circuit judge has equal authority to manage its assigned docket." Id. at 3. The logistical issues which would result from Judge Green's massive reassignment effort would be numerous and complex, if not chaotic. First, the Mississippi Supreme Court has
recognized limitations on reconsideration by a new judge of issues decided bya previous judge. These limitations could pose significant problems if the new judge is bound by, but legally disagrees with, a fmal ruling made by the previous judge. See generally Amiker v. Drugs for Less Inc., 796 So.2d 942 (Miss. 2000). In addition, notification of the litigants in the massive upheaval of assignments in currently filed cases would be a logistical nightmare. The burden
would likely fall on the already challenged circuit clerk's office,23 and such efforts would take time and manpower away from other crucial tasks required of the circuit clerk's office, including the impending implementation of an electronic filing system. The notifications would be cumbersome and very expensive. A few additional logistical challenges and examples of unfair docket disparity are as follows: • Judge Green readily admits that she devised the case assignment plan without first consulting or working together with any of the many court officials involved. Judge Green has ordered a full restructuring ofthe circuit criminal court system without a courteous inclusion of the district attorney, public defender, or circuit clerk (whose office is charged with implementation of the proposal). • Under Judge Green's proposal, all circuit judges will continue to have at least a partial mixture of civil and criminal cases other than the undersigned. Green will have Yz of the criminal docket and all emergency writs and temporary restraining orders on her docket (that she mayor may not "reassign"). Judge Kidd will have Yz of the civil docket and all criminal drug Judge
court cases. Judge Gowan will have Yz of the criminal docket and all civil cases
This Court is well aware of the administrative difficulties currently experienced by the Hinds County Circuit Clerk's office. See In re Dunn, _ So. 3d _ , 2010 WL 3785384 (Miss. Sept. 30,2010); In re Dunn, 2010-CS-323-SCT,
April 26, 2012.
filed inthe second judicial district. The undersigned will have only Y2of the civil docket. • Judge Green intends that all criminal revocation matters will be handled by herself and Judge Gowan, no matter if Judges Weill or Kidd were the original sentencing judge. The original sentencing judge has the benefit of being fully informed regarding the previous proceedings and relevant circumstances. • All criminal matters on Judge Green's docket will be subject to decisions by a County Court Judge, despite the availability and willingness of a Constitutionally-elected Circuit Judge to handle a fair share of the cases that are
within the circuit court's express jurisdiction. • To further complicate matters, Judge Green, in a recent April 18, 2012 e-mail, stated that "each of the circuit judges is free to retain in his or her current docket any case that you believe would be better served by continuing on your docket by final disposition." April 18, 2012 E-mail. This informal addition to
Judge Green's Case Assignment Order adds a subjective component to judicial assignments that blatantly defies the requirement that "assignment of cases and dockets shall be done through a systematic plan ..." M.R.A.P.27(g). In a letter from Judge Green to Judge Yerger, she said it best by stating "[ c]haos in Hinds County and all the other 81state [sic] courts is sure to result if a precedent is set whereby the senior judge is permitted to usurp the authority of other circuit judges, at will." Letter from Judge Green to Judge Yerger, 2003-M-285SCT, April 30, 2003, pg. 2. It is now apparent that Judge Green's
April 30, 2003 letter eerily predicted the future.
2. Limits on Senior Judge's Authority Regarding Initial Assignment of Cases
The Mississippi Supreme Court has been vigilant about requiring fair and balanced assignments of cases in the trial courts of this state. This Court's clear mandate regarding the senior judge's authority is entirely relevant to the issues at hand. With respect to actions in the circuit courts "setting terms of court and assigning causes and dockets under Miss. Code Ann. §9-7-3" this Court stated:
The setting of terms and assigning of causes and dockets in the chancery and circuit courts shall be done fairly considering the relative work loads of the judges and the right of litigants within the district to fair and reasonable access to all of the judicial officers as well as reasonable accommodation of the requests and needs of all judges within the district. M.R.A.P.27(g). As can be gleaned from the procedural history herein, Judge Green certainly
was not open to communication about the requests and needs of the undersigned as a "co-equal" judge in the seventh district. Instead, Judge Green took unilateral action which directly prevents all "litigants within the district to fair and reasonable access to all of the judicial officers." Id.
D. Judicial Administrative Regulations Can, and Should, "Supercede" Similar Attempts by the Legislature
1. Administrative Rules Should Promote Fairness and Efficiency The undersigned, as previously referenced, maintains that the Mississippi legislature did not intend for the senior judge of the Seventh Judicial District Circuit Court to have authority to divide the circuit court system into civil and criminal divisions. As discussed, dividing the court system would unavoidably run afoul with the legislature's strict mandate that "there shall be no limitation whatsoever upon the powers and duties of [the Seventh Circuit District Judges]."
Miss. Code Ann. 9-7-25(2). Rather, the legislature merely provided a mechanism for the senior judge to divide the court terms, "as a matter of convenience." Id. The Mississippi Supreme Court has spoken regarding the importance of random and fair case assignments in the trial courts of this state. See M.R.A.P. 27(g). Most significant is the Mississippi Supreme Court's requirement that the actions regarding the assignment of causes in the trial courts must consider "the right of litigants within the district to fair and reasonable access to all of the judicial officers." Id. As evidenced by the aforementioned, the undersigned does not assert that the statutory provisions regarding the assignment of cases and M.R.A.P 27(g) are conflicting. However, should the Mississippi Supreme Court determine that a conflict does exist, it should be resolved in favor of fairness, equity and efficiency in the courts, coupled with the jurisdictional mandates of the Constitution. As a result, each circuit judge should, both currently and in the
future, preside over their respective civil and criminal dockets. Again, the undersigned maintains that the applicable statutes have been misconstrued by Judge Green, and no conflict between the statutes and the procedural rules of the courts exist. However, the undersigned makes the alternative argument that should this Court disagree, any perceived "clash" can be easily resolved: the Supreme Court supercedes the legislature when it comes to propounding procedural rules. Recognition of the Mississippi Supreme Court's authority in this regard dates back more than four decades. In Southern Pacific Lumber Co. v. Reynolds, 206 So.2d 334 (Miss. 1968), then-Chief Justice W.N. Ethridge, Jr. wrote: "The phrase 'judicial power' in Section 144 of the Constitution includes the power to make rules of practice and procedure, not inconsistent with the Constitution, for the efficient disposition of judicial business." Id. at 335. In the same vein, the Mississippi Supreme Court later held: "In addressing a clash between a statutory rule of evidence and the Mississippi Rules of Evidence, this Court stated, 'What is important to remember is that this Court's rule-making power is a function of our
constitution's command that the three great governmental powers be separate. '" Wimley v. Reid, 991 So. 2d 135, 138 (Miss. 2008) (citing Hall v. State, 539 So.2d 1338, 1345 (Miss. 1989)). In 2002, this Court superceded the legislature on the very issue of case assignments. At
that time, the legislature adopted Miss. Code Ann. §11-1-56, a statute requiring that the judicial assignment of all civil cases be delayed until at least one defendant had filed a responsive pleading. See generally Comments, U.C.C.C.R. 1.05A. By the adoption ofU.C.C.C.R. this Court "superceded Section II-I-56, 1.05A,
exercising its inherent authority to adopt rules of
practice, procedure and evidence to promote justice, uniformity, and the efficiency of the courts, as articulated in Newell v. State, 308 So.2d 71 (Miss. 1975) and Hall v. State, 539 So.2d 1388 (Miss. 1989)." Comments, U.C.C.C.R. 1.05A. In 2008, this Court reaffirmed its earlier holding in Newell, citing: The inherent power of this Court to promulgate procedural rules emanates from the fundamental constitutional concept of the separation of powers and the vesting of judicial powers in the courts.... [Inasmuch as the judiciary] is conversant with the law through years of legal study, observation and actual trials, [judges rather than] well-intentioned, but overburdened, legislators [are better suited to know what procedural changes are] needed to meet the needs of a particular era and to maintain the judiciary's constitutional purpose. Wimley v. Reid, 991 So. 2d 135, 138 (Miss. 2008) (citing Newell v. State, 308 So.2d 71, 76 (Miss. 1975). Should this Court agree with Judge Green's interpretation of the applicable statutes, clear precedent supports an exercise of this Court's "inherent authority" to rectify the same.
Previous Ruling of This Court Supports Relief Requested
Miss. Code Ann. §9-5-19 is the relevant provision for the election of Chancellors in the Fifth Chancery Court District, located in Hinds County. The statute is very similar to the correlating circuit court statute relied upon by Judge Green, §9-7-25. In addition, Miss. Code
Ann. §9-5-3(5) references the authority of the senior chancellor to "assign causes and dockets
and set terms ... ," which is identical to the applicable provision for circuit court, found in §9-73(5). The legislature provided for four chancery court judges in Hinds County, just as with the circuit court, and importantly, the legislature conferred the exact same "authority" upon the senior circuit judge and the senior chancellor. On April 15, 1999, the Mississippi Supreme Court issued its Order in "The Matter of the. Local Rules of the Fifth Chancery Court District." The proposed local rules were submitted by then-Senior Chancellor Robinson, and were jointly submitted by two of the three remaining chancellors. Despite the majority vote and despite the "authority" of the senior chancellor regarding case assignments, the Mississippi Supreme Court denied approval of Proposed Local Rule 21, which pertained to case assignments. The Mississippi Supreme Court also "vacated and
annulled" the corresponding Order "enter[ ed] upon the minutes" by Senior Chancellor Robinson. In the Order, Justice Pittman stated "the statutory authority of the senior chancellor to enter [orders regarding assignment schemes] is not without limitations, and any such order is subject to review by this Court." Order, In the Matter a/the Local Rules a/the Fifth Chancery Court District, 89-R-99015SCT, April 15, 1999. The aforementioned case authority is cited as an alternative ground for striking Judge Green's Order. It applies only if this Court finds that the legislature did intend to enable Judge Green, as senior judge, to divide the Hinds County Circuit Court system into criminal and civil divisions and appoint, without reason, each judge to only one division. Should that be the consensus of this Court, the undersigned submits that pursuant to clear legal precedent, this Court should abide by its rule enforcing "the right of litigants within the district to fair and reasonable access to all of the judicial officers ... " M.R.A.P. 47(g) (emphasis added). As further emphasized below, the rights of the citizens of Hinds County, particularly the respective voters, should be considered as paramount to this issue.
·E. Rights of Mississippi Voters Should be Considered
The Mississippi Constitution clearly contemplates the importance of the democratic process in choosing public officials. The process begins and ends with the voters. The Constitution states that "[t]he people of this state have the inherent, sole, and exclusive right to regulate the internal government and police thereof, and to alter and abolish their constitution and form of government whenever they deem it necessary to their safety and happiness; Provided, Such change be not repugnant to the constitution of the United States." Miss. Const. art. III, § 6. The Constitution further provides that "[a]ll political power is vested in, and derived from, the people; all government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole." Miss. Const. art. III, § 5 The undersigned was elected as circuit court judge in subdistrict 7-1 of the Seventh Judicial District of Hinds County, Mississippi on November 2,2010. The voters were informed
that the respective circuit court judicial candidates of subdistrict 7-1 would be performing constitutionally assigned judicial duties in both civil and criminal cases. After considering the qualifications of the three candidates, a majority of the voters elected the undersigned to fulfill judicial responsibilities in both civil and criminal cases in the Hinds County Circuit Court. Throughout the undersigned's judicial campaign, a large focus was placed on expediency and due process that the undersigned intended to afford the criminal cases assigned to the docket of the subdistrict 7-1 judge. The voters exercised "the will of the people" of subdistrict 7-1, charging the undersigned to make good on his intentions regarding the criminal docket. Judge Green's actions directly contradict the will of the people. If the voters of subdistrict 7-1 were properly informed that their duly elected circuit judge would be limited to handling only civil matters, the voters may have considered the same in exercising "the will of the people."
The undersigned readily admits that public officials and governmental bodies must be permitted to enforce, and even change, administrative policies in order to remain efficient. The need for evolving administrative modifications has been evident to the undersigned during his tenure on the Jackson City Council and during his tenure as a Hinds County Circuit Court Judge. Even more important, however, are the limitations placed on public officials in "power" by the Constitution and the laws of this state. Judge Green's order is a unilateral attempt to make her own jurisdictional changes to similarly situated circuit judges' authority, which drastically impact the "powers and duties" of each Hinds County Circuit Judge, causing a distinction expressly prohibited by Mississippi law. Miss. Code Ann. §9-7-3(5). It is immaterial whether any of the other circuit judges of the Seventh District agree with Judge Green's proposal, as it still remains directly contrary to Mississippi law.
The undersigned emphatically submits that Judge Green's Order should be stricken, and authority to preside over all properly, and randomly, assigned criminal and civil matters should remain with each circuit judge of the Seventh Judicial District, all constitutionally elected for said purpose. Nevertheless, should this Honorable Court construe Judge Green's expanded interpretation of the senior judge's authority as proper, the undersigned submits that the same was not properly presented to the voters. Should the Supreme Court agree with Judge Green's proposal, the undersigned requests that the implementation of the same, at the very least, be delayed until the next judicial election, so as each voter can make his own constitutionallyprotected decision regarding the candidate best suited as a "criminal" court judge and a "civil" court judge.
F. Suggested Solution
The undersigned readily admits that a clear assignment procedure is needed for the Seventh Circuit Judicial District. However, case assignments must consider "the right of
litigants within the district to fair and reasonable access to all of the judicial officers ..." M.R.A.P.27(g). Accordingly, the undersigned submits the following proposal, pursuant to
M.R.A.P. 27(f), as a possible case assignment procedure, as a further alternative to Judge Green's proposal:
The Circuit Clerk of Hinds County shall utilize the web address www.courttools.com assigning civil and criminal cases. The courttools web address is programmed to randomly select judges through a software algorithm, and the calculations ensure random and equitable
assignments. Access to the website, which is managed by an outside company, has been quoted at a yearly cost of $360.00, including access and technical support. Each necessary employee of the circuit clerk's office will receive a User ID and password. Civil Actions: Civil matters shall be randomly assigned among the four (4) circuit judges upon the receipt of a new Complaint. Upon receiving a new civil matter, the circuit clerk shall assign the applicable case number, access the web address, enter the matter's identifying case number, and a judge will be electronically assigned. After obtaining a judge assignment, the clerk shall print the judge assignment from the web page and docket and file the assignment as the first document in the court file.
This assignment process does not apply to Petitions for Post-Conviction
petitions shall be assigned to the initial judge, and the clerk shall enter the applicable judge into the clerk's computer system. Criminal Matters: Criminal Matters shall be randomly assigned after Indictment among the four (4) circuit judges. The circuit clerk shall assign each indictment a case number. The circuit clerk should then access the courttools web address, enter the matter's identifying case number, and a judge will be electronically assigned using the random
and equitable electronic algorithm. After obtaining a judicial assignment, the clerk shall print the judge assignment from the web page and docket and file the assignment as the first document in the court file.
Recusal: Should a circuit judge enter an Order of Recusal, the same should be sent immediately to the circuit clerk's office for random reassignment in the same manner as initial case assignment- through the courttools web address. The clerk's office shall, that same business day, notify the newly assigned judge and the parties of a reassignment due to ajudge's recusal. All Hinds County subdistrict 7-4. District cases shall be assigned to the circuit judge presiding in
CONCLUSION The undersigned petitions this Court for relief from the April 17, 2012 Case Assignment Order of Hinds County Circuit Court Senior Judge Tomie Green, which is contrary to the Mississippi Constitution, to Mississippi law and to the Mississippi rules of court. Judge Green's Order purports to remove all of the undersigned's rightfully assigned criminal cases and reassign them to another circuit judge on August 1,2012. Further, Judge Green intends that the
undersigned be restricted to presiding only over civil matters. For the reasons cited herein, the undersigned submits that Judge Green has gone beyond the bounds of her limited authority as senior circuit judge of the Seventh Circuit Judicial District. The undersigned requests expedient consideration of these issues, as Judge Green's implementation of her August 1,2012 case assignment upheaval is already underway.
As stated by former Chief Justice Whitfield, "[t]he
On April 18, 2012, Judge Green sent an e-mail informing
the circuit judges that she will be publishing
Assignment Order to the state and local bars and law schools in the near future.
learned circuit judges of this state occupy positions of great dignity, great authority, and great power in the communities in which they preside. They are entitled to the respect and reverence of their brethren of the bar, and may justly look to them as officers of the court to aid and uphold them in the vigorous enforcement of the criminal laws of this state, to the end that we may have established in this commonwealth good order everywhere." Gray v. State, 43 So. 289, 291
(Miss. 1907). The undersigned places great importance on the criminal matters within the undersigned's purview. The citizens of Hinds County, the state's largest judicial district, should expect nothing less from each of the four duly elected circuit judges. All litigants have the right "to fair and reasonable access to all of the judicial officers [of the Seventh Circuit Court District]." M.R.A.P. 27(g) (emphasis added). This ~ day of May, 2012.
CERTIFICATE OF SERVICE
I, Jeff Weill, Sr., the undersigned judge, do hereby certify that a true and correct copy of the above and foregoing document has been delivered via electronic mail and hand-delivery to the remaining judges ofthe Seventh Circuit Judicial District.
of May, 2012.
IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI
F I L F,0
APR 1" 2012
ORDER ESTABLISHING CML AND CRIMINAL DIVIS~DUNf'.I, IN THE HINDS COUNTY CIRCUIT COURT B'(
t,_ ..' .
In accordance with Sections 9-7-3(5)1 and 9-7-25(2)2 of the Mississippi Code (1972, as amended), the undersigned senior judge hereby exercises her discretion in establishing a split random assignment of cases into criminal and civil divisions in the First Judicial District of Hinds County, Mississippi. The undersigned is of the opinion that the split division will promote a more efficient, effective and timely .resolution of all civil and criminal cases brought before the circuit court, Moreover, the undersignedO'pinesthat such a division will allow the circutt judges to exercise more flexibility in the management of civil and criminal dockets in as much as two (2) presiding circuit judges will primarily hear all civil or criminal cases throughout the year, while the other two (2) presiding circuit judges will primarily hear all criminal cases throughout the year. As it currently stands, all four (4) judges hear both criminal and civil cases from term to' term throughout the year, with little uniformity in the number of weeks devoted to either group of cases. With a split division, the circuit judges will almost exclusively devote time to either the civil or criminal docket, as is done by our three (3) judges in the county court. One county judge hears criminal matters (misdemeanors), one county judge hears all civil cases, and the third county judge hears all youth court cases. Several multi-judge districts similarly divide their cases by division. In fact, this split division was previously used effectively in Hinds County's circuit court. Many civil cases have lingered much too long on the dockets of the Hinds County circuit court, without systematic docket calls, scheduling orders or realistic trial dates. Continuances have become unavoidable agents of stagnation. The undersigned is convinced that delays in civil case resolution can be diminished when designated judges have more flexibility in rescheduling trials and related matters on their calendars.
1 Section 9-7-3(5), Tenns of court in genera~ states: In a district having more than one (1) office of circuit judge, there shall be no distinction whatsoever in the powers, duties and emoluments of those offices except that the judge who has been for the longest time continuously a judge of that court or, should no judge have served longer in office than the others, the jUdge who has been for the longest time a member of the Mississippi Bar, shall be the senior judge. The senior judge shall have the right to assign causes and dockets, and to set terrn:sin districts consisting of more 1hah one (I) county. 1
Section 9-7-25, Seventh districts; number and election of judges; powers and duties of judges, states: (1) There shall be four (4) circuit judges for the Seventh Circuit Court District. One (1) judge shall be elected from each subdistrict. (2) While there shall be no limitation whatsoever upon the powers and duties of th~ said judges, other than as cast upOJlthem by the Constitution and laws of this state, the court in the First Judicial District of Hinds County, In. tile discretion 0/ th-e senliJr circuit Judge, may be divided Into civil and criminal dMslons tIS a matter of convenience, by the entry 0/ an order upon the mll!~
·Likewise, circuit judges primarily assigned to preside over criminal cases can substantially reduce any backlog of criminal cases, help with relieving any overcrowding in the county's detention centers and minimize the risk of term-to-term speedy trial violations. The undersigned has considered numerous factors in designating the judges who will preside in each division, to include, but not limited to: (1) the experience, background and training of each circuit judge; (2) the need for diversity in each division; (3) the need for reorganization to fast tract civil and criminal cases left over by numerous special judges; (4) the need for fairness in the apportionment of cases; (5) the need to comply with constitutional mandates in stale criminal cases; (6) greater calendar flexibility and management in all criminal and civil cases; and (7) the forthcoming and long-term implementation of an electronic filing system in the management of cases in Hinds County Circuit Court.
SPLIT RANDOM ASSIGNMENT OF CASES
(A) The split random assignment for all civil cases will primarily be made to the circuit judges presiding in the I st (Weill) and 3M (Kidd) subdistricts. The split random assignment for all criminal cases (except capital murder and death penalty cases), will primarily be made to the circuit judges presiding in the 2nd (Green) and 4th (Gowan) subdistricts. All capital murder and death penalty cases shall be randomly assigned to all four (4) circuit judges of the District (B) Nothing in the herein order shall be construed as precluding the undersigned senior judge from reassigning cases as necessitated by recusal, consolidation or transfer of cases to promote the fair and equitable distribution of cases among the circuit judges. Moreover, nothing within this order shall be construed as precluding any circuit judge from agreeing to preside in a matter, or case, of a fellow circuit judge without regard to whether the case is civil or criminal. In order to assure timely resolution, all emergency writs, temporary restraining orders or petitions for probable cause hearings shall be assigned to the senior judge for random reassignment among the four (4) circuit judges or county judges pursuant to Section 9-9-35, Mississippi Code Annotated (1972, as amended).
pfl.GE 2.11 2
COMMENCEMENT AND TIME LINES (C) Beginning August 1, 2012, all civil cases in the First Judicial District of Hinds County, Mississippi shall be randomly assigned to the circuit judges of Subdistrict 1 (Weill) and Subdistrict 3 (Kidd) of Hinds County, Mississippi, so that no discernible pattern of assignment exists, and so that no person shall know to whom the case will be assigned until it has been assigned. If an attorney or party shall attempt to manipulate or defeat the purpose of this rule, the case shall be reassigned to the judge who would have otherwise received the assignment. If the judge who would have received the case under an assignment in compliance with this rule cannot be determined, a new assignment in compliance with this rule shall be made, excluding the judge to whom it was incorrectly assigned. Sanctions, including costs and attorneys' fees, may be imposed by the judge upon reassignment. Such sanctions may also include suspension from practice in the court imposing them for not more than 30 days and referral to the Bar for further discipline.
(D) Beginning August 1,2012, all criminal cases in the First Judicial District of Hinds County, Mississippi shall be randomly assigned to the circuit judges of Subdistricts 2 (Green) and 4 (Gowan) of Hinds County, Mississippi, so that no discernible pattern of assignment exists, and so that no person shall know to whom the case will be assigned until it has been assigned. Any prosecutor or attorney who shall attempt to manipulate or defeat the purpose of this rule shall be subject to appropriate sanctions by the Court and referral to the Bar for further discipline.
All capital murder and death penalty cases shall be randomly assigned to all four (4) circuit judges. Each circuit judge in the civil division may retain on his or her docket any capital murder or death penalty cases pending on the judge's docket as of Augyst 1.2012.
(E) Beginning August 1, 2012, all cases in the Second Judicial District in Hinds County, Mississippi shall be assigned to the circuit judge elected from the Fourth (4~ Subdistrict (Gowan) Hinds County, Mississippi. Beginning August 1, 2012, all criminal revocations sha:ll be handled by the circuit judges presiding over the assigned case in the criminal division (Green or Gowan). All petitions for post-conviction relief shall be assigned to the circuit judge who acted (or whose predecessor acted) as the presiding circuit judge in the disposition of the underlying criminal case,
(G) All civil and criminal cases that have not been disposed of as of as August 1,2012 (except capital murder and death penalty cases), shall be reassigned as follows: 1. All civil cases previously assigned to Judge Green shall be reassigned to Judge Kidd. All civil cases previously assigned to Judge Gowan shall be reassigned to Judge Weill.
All criminal cases (except capital murder, death penalty and drug court cases) previously assigned to Judge Kidd shall be reassigned to Judge Green. All criminal cases (except capital murder and death penalty cases) previously assigned to Judge Weill shall be reassigned to Judge Gowan.
All civil and criminal cases where a Special Judge is designated judge, or where no judge is designated at all, shall be randomly reassigned to the circuit judges in the appropriate division.
On or before July 1,2012, the Circuit Clerk of the Seventh Circuit Court District of Hinds County, Mississippi (the "Clerk"), in conjunction with the Hinds County Information Technology Department ("IT Department"), shall present to the senior judge, for approval, a system for randomly assigning all civil and criminal cases in accordance with this order. Additionally. the Clerk, in conjunction with the IT Department, shall present for the senior judge's approval, a plan for the transfer of all cases pending prior to August 1, 2012 into a split civil and criminal division as herein specified. The Clerk shall immediately distribute an attested copy of this Order to the following Hinds County officials: IT Director (Steve Ortis), all county judges, all circuit judges of the Seventh Circuit Court District. all chancery judges of the Fifth Chancery Districts. the District Attorney (Robert Smith), the Public Defender (MiChelle Purvis-Harris), each member of the Board of Supervisors, the County Administrator (Carmen Davis), the Board Attorney (Crystal Martin), the County Attorney (Sherry Flowers-Billups), !he Clerk of the Mis3issipp,i Supreme Court <Kathy Gillis). and the Chief Justice of the Supreme Court (Justice Bill Waller).
SO ORDERED AND ADJUDGED this the
y of April, 2012.
TOMIE T. GREEN
SENIOR CIRCUIT JUDGE
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