When all justice court judges in a Mississippi county recuse, who appoints the substitute and who pays?

Plain-English summary

Sometimes every justice court judge in a Mississippi county is conflicted off the same case. The parties might know all the local judges socially, or all the judges might be related to a litigant, or there might be small enough rotations that the judges have already handled some piece of the underlying dispute. When that happens, who appoints a substitute and how does the substitute get paid?

The Sunflower County Board attorney walked the AG through four sub-questions. The answers, drawn from Uniform Justice Court Rule 7 and Mississippi statutes:

1. Appointment. Uniform Justice Court Rule 7(b) handles it. The justice court clerk first tries to assign the case to another justice court judge of the same county. If none can serve, "a circuit court judge of the district may appoint any justice court judge from another county to hear the case."

2. Compensation. Rule 7(c) authorizes only "reimbursement of expenses" under Mississippi Code § 25-3-41 and as otherwise allowed by law. Justice court judges are paid a set salary by the county board of supervisors under § 25-3-36 as full compensation for their services. The AG could not find any other authority for additional pay for handling a substituted case. So the substitute judge's home county still pays his salary, the substitute can be reimbursed for travel and other expenses, and that is it. Carter (Sept. 14, 1998) confirmed the rule.

3. Who pays? The opinion holds that "neither the court rules nor the state statutes specify who is responsible for reimbursing the substitute judge for expenses." It does not fill that gap.

4. Civil vs. criminal. No difference. Uniform Justice Court Rule 1 says rules 1-10 apply to "all cases, whether civil or criminal in nature." So the recusal-and-substitute procedure works the same way for both.

The opinion is a clean read of court rules with light statutory cross-references. The compensation analysis is the practically important point: substitute justice court judges do not get extra pay, so this is not a path to a side-payment for handling extra cases.

What this means for you

If you are a justice court clerk handling a recusal situation

The opinion applies Uniform Justice Court Rule 7(b): "the justice court clerk shall assign the action to another justice court judge of the county," and "[i]f no justice court judge is able to serve because of recusals, or is otherwise unable to serve, then a circuit court judge of the district may appoint any justice court judge from another county to hear the case."

If you are a circuit court judge asked to appoint a substitute

The opinion holds Rule 7 "authorizes the circuit court judge of the district to appoint a justice court judge from another county to hear a case in the district if all justice court judges have recused." It does not set criteria for the choice.

If you are a justice court judge appointed as a substitute

The opinion holds you are "entitled only to reimbursement of expenses and no additional payment." Reimbursement runs under § 25-3-41, while your county salary under § 25-3-36 is "full compensation for his or her services"; the opinion finds "no other authority allowing additional compensation" (citing Carter).

If you are a litigant or county supervisor

The opinion holds the procedure is the same for civil and criminal cases, citing Rule 1 ("Rules 1-10 shall be applicable to all cases, whether civil or criminal in nature"). On who bears the reimbursement cost, it holds the rules and statutes "do not specify," and it does not resolve that question.

Common questions

Q: Who appoints the substitute when all county justice court judges recuse?
A: The opinion holds Rule 7(b) authorizes "a circuit court judge of the district" to "appoint any justice court judge from another county to hear the case," after the clerk has been unable to assign it to another judge of the same county.

Q: Does the substitute judge get extra pay?
A: No. The opinion holds the substitute is "entitled only to reimbursement of expenses and no additional payment," because the home-county salary under § 25-3-36 is "full compensation" and it found "no other authority allowing additional compensation."

Q: Who pays the substitute's expenses?
A: The opinion holds "neither the court rules nor the state statutes specify who is responsible for reimbursing the substitute judge for expenses." It does not answer the question.

Q: Does the procedure differ for civil versus criminal cases?
A: No. The opinion relies on Rule 1: "Rules 1-10 shall be applicable to all cases, whether civil or criminal in nature."

Background and statutory framework

Uniform Justice Court Rule 7 is the operative rule:

(b) Reassigning case. If a judge is disqualified from participating in a case, the justice court clerk shall assign the action to another justice court judge of the county to hear the case. If no justice court judge is able to serve because of recusals, or is otherwise unable to serve, then a circuit court judge of the district may appoint any justice court judge from another county to hear the case.

(c) Reimbursement of expenses. Any justice court judge assigned or appointed to participate in a case under subdivision (b) of this rule shall be entitled to reimbursement of expenses pursuant to section 25-3-41 of the Mississippi Code and as otherwise allowed by law.

Section 25-3-36 sets the justice court judge's salary, paid by the county board of supervisors as "full compensation for his or her services." Section 25-3-41 covers expense reimbursement for state officers (the cross-reference picks up mileage, lodging, and per diem rules).

Uniform Justice Court Rule 1 confirms the cross-coverage:

Rules 1-10 shall be applicable to all cases, whether civil or criminal in nature.

The 1998 Carter AG opinion is the older application of the same rules to the same compensation question.

Citations

• Uniform Justice Court Rule 1
• Uniform Justice Court Rule 7(b)
• Uniform Justice Court Rule 7(c)
• Miss. Code Ann. § 25-3-36
• Miss. Code Ann. § 25-3-41
• MS AG Op., Carter (Sept. 14, 1998)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/05/J.McWilliams-May-24-2024-Recusal-of-Justice-Court-Judges.pdf

Original opinion text

May 24, 2024

John H. McWilliams, Esq.
Attorney, Sunflower County Board of Supervisors
220 Second Street
Indianola, Mississippi 38751-0107
Re: Recusal of Justice Court Judges

Dear Mr. McWilliams:
The Office of the Attorney General has received your request for an official opinion.

Questions Presented

1. In a civil case where all justice court judges of the county have recused themselves, who is responsible for appointing or securing a substitute judge to hear the case?
2. Are there any guidelines or limitations on how much additional compensation the substitute judge should be paid for hearing this case?
3. Who is responsible for paying the substitute judge?
4. Would the direction provided by your office be different if this were a criminal case rather than a civil case?

Brief Response

1. Rule 7 of the Uniform Rules of Justice Court authorizes the circuit court judge of the district to appoint a justice court judge of another county when all of the justice court judges recuse themselves.
2. Rule 7(c) authorizes only reimbursement of expenses pursuant to Mississippi Code Annotated Section 25-3-41 and as otherwise allowed by law. Outside of a justice court judge's set salary in Section 25-3-36 and the reimbursement of expenses in Section 25-3-41, we find no other authority allowing additional compensation.
3. The court rules and state statutes do not specify who is responsible for paying the substitute judge, only that the judge is entitled to reimbursement of expenses.
4. No. Rule 1 states that rules 1-10 of the Uniform Rules of Justice Court apply to all cases in justice court regardless of their type.

Applicable Law and Discussion
Uniform Justice Court Rule 7 provides, in pertinent part:

(b) Reassigning case. If a judge is disqualified from participating in a case, the justice court clerk shall assign the action to another justice court judge of the county to hear the case. If no justice court judge is able to serve because of recusals, or is otherwise unable to serve, then a circuit court judge of the district may appoint any justice court judge from another county to hear the case.
(c) Reimbursement of expenses. Any justice court judge assigned or appointed to participate in a case under subdivision (b) of this rule shall be entitled to reimbursement of expenses pursuant to section 25-3-41 of the Mississippi Code and as otherwise allowed by law.

Rule 7 authorizes the circuit court judge of the district to appoint a justice court judge from another county to hear a case in the district if all justice court judges have recused. Regarding payment, Rule 7 only addresses reimbursement of expenses pursuant to Section 25-3-41 and those otherwise allowed by law. The rule does not contemplate any other additional compensation for hearing the case. Justice court judges are paid a set salary "as full compensation for his or her services" by the county board of supervisors pursuant to Section 25-3-36. Outside the reimbursement afforded under Section 25-3-41 and the set salary in Section 25-3-36, we find no other authority allowing additional compensation. Accordingly, and in response to your second question, the judge would be entitled only to reimbursement of expenses and no additional payment. See MS AG Op., Carter at *1 (Sept. 14, 1998). In response to your third question, neither the court rules nor the state statutes specify who is responsible for reimbursing the substitute judge for expenses.

In response to your fourth and final question, Uniform Justice Court Rule 1 states "Rules 1-10 shall be applicable to all cases, whether civil or criminal in nature."

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General