Constitutionality of House Bill 1020 comes into focus

by Bobby Harrison, Mississippi Today
March 8, 2023

A host of elected officials and attorneys who are increasingly scrutinizing House Bill 1020 say the original version of the legislation is likely unconstitutional — a point looming over lawmakers as they continue to debate and change the bill at the Capitol.

The bill, which passed the state House last month after four hours of debate, received national attention for seeking to create an appointed judiciary within the Blackest large city in the nation while all other similar judicial posts in the state are elected. It would also have broadly expanded jurisdiction of the white appointed state police department inside the Jackson city limits.

Many lawmakers have publicly argued the bill violates the U.S. Constitution because it denies a right to vote to the city’s 80%-plus Black population and allows the judges to be appointed by a white chief justice of the state Supreme Court.

“Only in Mississippi would we have a bill like this … where we say solving the problem requires removing the vote from Black people,” Rep. Ed Blackmon, D-Jackson.

READ MORE: ‘Only in Mississippi’: House votes to create white-appointed court system for Blackest city in America

But Jackson Attorney Luther Munford, who specializes in constitutional law and previously served as the head of former Gov. Ray Mabus’ judicial nominating committee, recently opined the bill is unconstitutional on another level. He argues it creates a judicial system that is not allowed by the Mississippi Constitution.

“The Mississippi Constitution does not allow the displacement of elected judges. To be constitutional, the new court would have to be ‘inferior’ to elected judges and subject to their review,” Munford wrote in a recent Northside Sun op-ed. “Moreover, there is nothing in the Mississippi Constitution that would allow the chief justice of the Mississippi Supreme Court or anyone else to do what the bill asks, i.e. to appoint its members. The constitution does not contemplate filling any permanent judicial office by appointment, and the temporary appointing powers it gives belong exclusively to the governor.”

The permanent, appointed judiciary section recently was stripped completely from the House bill by the Senate. The Senate passed its version of the bill Tuesday, only including temporarily appointed judges to cover all of Hinds County, not just the Capitol Complex district.

The Senate version now goes back to the House, where leaders can choose to accept the Senate changes or invite conference to try to work out the differences.

READ MORE: Senate passes House Bill 1020 over opposition from Jackson lawmakers

Even though the Senate stripped the language creating the separate judicial district with the appointed judges, those provisions will remain alive this session and could be reinserted in the bill later in the process with the agreement of Senate leaders.

At one point, even Gov. Tate Reeves, who often has been critical of the elected leadership in Jackson and has brashly highlighted the city’s crime problems, seemed to question the constitutionality of the bill after it passed the House.

Reeves said in February his office was working with legislative leaders “to get to the point” where the bill provides “safety and security to the citizens of Jackson while at the same time meet(ing) constitutional muster and otherwise.” He said there was still work to do on the legislation.

But a few days later after the Senate Judiciary A Committee stripped the appointed, permanent judges from the bill, the Republican governor seemed less pleased with the proposal.

“The bill that was amended in the Senate I thought took a pretty big step back in terms of just sending money to the same entities and institutions that exist now, and I don’t think that is the right approach,” Reeves said.

When was asked if he would sign the bill in the version that passed the Senate Judiciary A Committee, Reeves said he hopes work continues on the legislation.

“I am hopeful a bill gets to me I can sign, but I don’t think it would be that one,” he said.

The Senate proposal would continue to allow judges appointed by Chief Justice Michael Randolph to hear cases in Hinds County through the end of 2026. But in 2026, a new judge would be elected and the appointed judges would be removed.

The effort is being undertaken, Republican leaders say, to help deal with crime and a backlog of criminal cases in Hinds County.

There already exists in the city of Jackson a legislatively created Capital Complex Improvement District where a state police force has jurisdiction. The House proposal would expand the district to cover more affluent and whiter areas of Jackson.

Instead of expanding the district, the Senate proposal would provide the state police jurisdiction throughout the city and require city officials and Public Safety Commissioner Sean Tindell to reach agreement on how that jurisdiction would work.

Many Jackson elected officials say a major problem with the Senate proposal is that it gives the final say over police jurisdiction to the state and not the city. Jackson Mayor Chokwe Antar Lumumba, who oversees the Jackson Police Department, has said he will not sign a contract with the state if the current Senate proposal passes.

The author of the original House version is House Ways and Means Chair Trey Lamar, a Repubnlican from Senatobia. He has reiterated there is no racist intent with the legislation.

“The Mississippi House is trying to help, not hurt, Jackson,” said Lamar on social media. Just two of the 38 Black members of the House voted in favor of the original proposal. No Black member of the Senate voted for the amended proposal.

Lamar argued the bill is constitutional. He said the Mississippi Constitution allows the Legislature to create “inferior courts,” and under his legislation the rulings of the appointed judges would be subject to review by the four existing elected judges in Hinds County.

But Munford said the process of appealing decisions of the appointed judges to the elected judges, as spelled out in the bill, is unworkable. Plus, the state constitution gives only the governor the authority to appoint judges — when a vacancy occurs and then only to the next election.

Lamar pointed out that state law does give the chief justice the authority to appoint judges in certain instances, such as to hear election challenges or when the judges in a district recuse themselves from the case.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.