Supreme Court issues new recusal and mandamus rules
October 18, 2002
The Mississippi Supreme Court on Thursday, Oct. 17, adopted a new rule addressing motions which request that appellate judges disqualify themselves from hearing certain cases.
The Supreme Court also revised a rule by which parties in civil litigation may seek to force trial judges to act on matters that are taken under advisement for more than 60 days.
The Supreme Court adopted Rule 48C , Disqualification of Justices or Judges of the Appellate Courts, in a revision to the Mississippi Rules of Appellate Procedure.
A request to disqualify a judge from hearing a case is called a motion for recusal.
The new rule adopted by the Supreme Court says, in part, "Any party may move for the recusal of a justice of the Supreme Court or a judge of the Court of Appeals if it appears that the justice or judge's impartiality might be questioned by a reasonable person knowing all the circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law."
In the past, the appellate courts' practice on motions for recusal was to leave the decision of whether to recuse within the discretion of the judge whose recusal was sought. The Supreme Court did not have a specific rule addressing recusal of an appellate judge.
The new rule says the motion to recuse "shall be decided in the first instance by the justice or judge who is the subject of the motion." The rule further states that the remainder of the court shall be informed of the decision prior to entry of an order denying recusal. A judge's decision to refuse a recusal motion "shall be subject to review by the entire court upon motion for reconsideration filed within 14 days following the issuance of an order denying recusal."
Denial of a motion to recuse a Court of Appeals judge, after review by that entire court, is appealable to the entire Mississippi Supreme Court.
The rule involving recusal was adopted on the court's own motion, which means it was not in response to any petition filed by a party before the court. The Supreme Court addressed rules regarding recusal of trial court judges when it adopted revisions to the Code of Judicial Conduct on April 4. The recusal rule for appellate court judges grew out of that earlier work.
The Mississippi Bar, with concurrence by the Judicial Advisory Study Committee, petitioned the Supreme Court in July to amend a rule that gives parties in civil litigation a mechanism to ask the Supreme Court to force a trial judge to act on a matter taken under advisement. That mechanism is known as a petition for a writ of mandamus.
The revision to Rule 15 of the Mississippi Rules of Appellate Procedure says that after a trial judge has a motion under consideration for 60 days, plaintiffs and defendants shall within 14 days submit proposed orders to the trial judge and notify the trial court clerk and the Administrative Office of Courts (AOC). If AOC receives no written notice of a decision within six months of the date the case is taken under advisement, the AOC will notify the Supreme Court, and that court will treat the filing as a petition for a writ of mandamus. The rule allows a trial judge to request an extension beyond the six months.
In the past, it was up to litigants to seek relief from the Supreme Court.
In its commentary to the rule, the court noted, "This rule recognizes the importance of prompt disposition of matters submitted to the courts for decision" in accordance with the Mississippi Rules of Civil Procedure and the requirements of the Code of Judicial Conduct. The commentary said, "This rule provides a mechanism to facilitate disposition of matters as promptly as fair consideration of the issues allows."
Copies of the rules are available in the Oct. 17 hand-down list posted on the Supreme Court's web site,www.mssc.state.ms.us.