JACKSON - The Mississippi Supreme Court says a majority of the nine-member court can decide appeals without asking the governor to replace disqualified justices.
Jackson attorney Cynthia Langston raised the issue in asking the court to rehear a request to gain access to industry documents related to a Jones County lawsuit. The justices last month voted 4-3 to reverse the trial judge's order that a tobacco company produce the documents. Justices Bill Waller Jr. and Oliver Diaz Jr. did not participate in that decision.
At the same time, Langston petitioned the governor to appoint two special justices so a full nine-member court could hear her arguments, contending that was required by the Mississippi Constitution.
The Supreme Court on a 4-3 vote last Thursday rejected Langston's motion to rehear the case. In response to the Langston's petition to the governor, six justices said appointment of special judges was unnecessary.
While apparently settled, University of Mississippi law school professor Michael Hoffheimer said Langston's argument brings out an issue never publicly addressed before by the Supreme Court.
Chief Justice Ed Pittman said last Thursday that the constitution lets the governor make special appointments to assure "a full complement of justices." However, Pittman said the constitution also allows the court to conduct its business with five justices constituting a quorum.
"What it seems to suggest," said Hoffheimer, "is that as long as there are five justices that are still not disqualified, they can hear a case."
Hoffheimer said simple majorities of the Supreme Court have decided cases for many years.
"I don't know that that had really been thought to be inconsistent with the constitution," he said.
Justices frequently disqualify themselves from hearing a case. They are not required to explain why.
Presiding Justice Chuck McRae has recused himself from hearing appeals of cases in which his daughter's law firm was involved.
At the same time, McRae has asked the governor to appoint a special judge to take his place. The majority of the Supreme Court has disagreed with him - and no appointments were ever made. McRae said Thursday that he would respond in more detail later to majority's decision.
Pittman said there has been occasions when as many as 500 times a year one justice or another has not participated in cases. He said if Langston had her way, special appointments would have been required in each of those cases and interfere with the orderly handling of appeals.
"Furthermore, such an interpretation could, in closely controverted cases wherein a single vote will be decisive, place the ultimate power to adjudicate with the executive branch rather than the judiciary," Pittman wrote.
Hoffheimer said the constitution is clear that the governor is directed to appoint when a court is not able to decide a case because of disqualification of judges.
He acknowledged though that there is "a kind of constitutional problem that would be presented with the argument that the governor needs to make appointments because parties choose their lawyers … knowing that will force justices on the Supreme Court to recuse themselves."
"You don't want parties to be able to manipulate so that then they can ask the governor to make an appointment that they think might be more favorable to their side," Hoffheimer said.
McRae, in a dissent on Langston's original appeal, said closeness of the vote on the case required the governor to appoint judges to replace Waller and Diaz who did not participate.
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