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? Rule 7 and the statutes do not specify which county or party pays the expense reimbursement. The AG declined to fill that gap. The practical answer is local arrangement: the substitute submits an expense claim somewhere (typically the appointing circuit court or the receiving county), and the local rules or practice determines whether the host county absorbs it or whether some other allocation applies.

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

Start with the Rule 7(b) ladder: try assigning the case to another justice court judge in your county first. Only after every county justice court judge has been ruled out (recusal, disqualification, unavailability) does the circuit court judge get involved. When you do escalate, send a written notice to the circuit judge of the district explaining who has recused and why. The circuit judge selects the out-of-county justice court judge and entered the appointment order.

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

You have discretion over which out-of-county justice court judge to pick. Practical selection criteria typically include geographic proximity (to keep travel costs down), schedule availability, and lack of conflicts. Coordinate with the substitute judge and the originating county's clerk on logistics.

If you are a justice court judge being appointed as a substitute

You are entitled to expense reimbursement under § 25-3-41 (transportation, lodging if needed, meal per diem within the statutory limits) but not to additional pay for the case. Your salary from your home county under § 25-3-36 is "full compensation." Submit your expense claim through whichever channel the appointing order or local practice specifies. Document everything (mileage, dates, lodging receipts).

If you are a litigant whose case got bumped to an out-of-county substitute

The substitution is procedural; it does not change the substantive law that applies, the burden of proof, or the rules of evidence. The substitute justice court judge has the same authority as the local judge would have had. You may have to travel to a different courthouse for the hearing if the substitute cannot come to your county; ask the clerk where the proceedings will take place.

If you are a county supervisor in a county that frequently sees recusals

If recusals are a recurring issue, the legislature is the place to fix the compensation structure. The AG's reading is that current statutes do not authorize additional payment for substitute judges, even though the substitute is doing extra work outside the salary scheme. Counties asking visiting judges to handle their dockets may want to consider whether this creates recruitment friction over time and whether to lobby the Legislature for an enabling statute.

Common questions

Q: What is "the district" for circuit court purposes?
A: Mississippi is divided into circuit court districts, each containing one or more counties. The "circuit court judge of the district" is a judge of the circuit court that has jurisdiction over the county where the case is pending. Each district has multiple circuit court judges, so any of them can act for purposes of Rule 7(b).

Q: Can a chancery court judge appoint a substitute justice court judge?
A: Rule 7(b) refers specifically to a circuit court judge of the district. A chancery court judge handles a different docket and is not the contemplated appointing authority under the rule.

Q: Could a county pay a substitute judge a stipend by board resolution?
A: The AG opinion says "we find no other authority allowing additional compensation." That language is read narrowly: if the legislature has not authorized payment, the county likely cannot create one. A board resolution paying extra compensation to a justice court judge for substitute work would invite a State Auditor finding.

Q: What if the appointed substitute judge declines?
A: Rule 7(b) lets the circuit court judge "appoint any justice court judge from another county." If the first appointee declines, the circuit court judge can appoint someone else. Statewide, there are dozens of justice court judges, so finding one willing and available is generally possible.

Q: What happens if the substitute judge has a conflict the parties did not know about?
A: Same recusal procedures apply to the substitute as to the original judge. If the substitute discovers a conflict, the substitute should recuse, and the circuit judge picks another substitute.

Q: Are there any geographic limits on which out-of-county judge can be appointed?
A: No, the rule says "any justice court judge from another county." A circuit judge could in theory appoint a justice court judge from across the state, though practical considerations (travel, scheduling) usually mean a nearby county is chosen.

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