McKinley Brown, Etc. v. T. A. Vance, Etc., Mary Jean Boone, Etc., Cross-Appellee v. Walter L. Dennis, Etc., Cross-Appellants
637 F.2d 272
5th Cir.
1981
Check Treatment

*3 appeal, plaintiffs/appellants abandon WISDOM, Brown; Before RONEY and HATCH- their attack they state-wide in ETT, maintain, Judges. however, they Circuit bur- met their opinion, jus “judge” Kentucky system 1. As used this refers to a that the held did not judge. adoption process tice court Prior of the equal protection due violate the or amendment Article Accordingly, § joint clauses. of the motion (Miss.Laws, Chpt. Constitution 1890 us, parties now before the district court entered 11) presiding HCR in 1975 the in officers eliminating Order Partial Dismissal system justices designated lower court were as challenge constitutionality before of trial peace. of the Pursuant to the constitutional lay-judge. a designated amendment these officials are now justice as court and are referred to here In Brown the district court defined such. follows: classes as plaintiffs declaratory originally sought 2. The plaintiff persons The class-All on or who adjudicating trials before relief that criminal 4, 1971, charges, after June faced criminal justice peace lay-judges in the of the court charges in the future will face criminal were a denial of due law. of the Justice Peace Courts in State of Lee, Judges: “Non-Lawyer See Ashman & Long Mississippi. North”, Chicago-Kent Road L.Rev. The defendant class-All Justices Note, (1977); “Is a Trial Before Non-At- Mississippi. Peace of State of Constitutional?”, torney Judge 57 Neb.L.Rev. the court Boone defined follows: classes as defendants, (1978). On motion of the plaintiff persons class-All who on or abeyance pending district court held the trial in 2, 1972, defendants, April after were sued as Russell, 1976, disposition of North v. future will or in the be sued as defendants 534. That L.Ed.2d civil suits Justice of the Peace Courts constitutionality of the case involved Ken- Mississippi. tucky two-tier court trial misde- The defendant class-All Justices meanors, lay-judge presiding with a over the Mississippi. the State of Peace of appeal right jury de first trial to a novo lawyer-judge. presided over trial proof sippi legislature in criminal cases in districts den judges’ has increased the jurisdic- compensation. have concurrent Judges where two now receive $15 each civil tion. Hinds and counties have such case and for each DeSoto criminal (1979 case. Id. appeal plaintiffs/appel- Supp.). districts. On Cum. There is no longer any position postjudgment proceed- fee for lants Boone adhere ings in a civil case. throughout the civil fee State is part unconstitutional. We reverse in At plaintiffs trial the did not limit their part. affirm in evidence to criminal cases in Hinds and counties,

DeSoto but attacked the entire I. They criminal contended that system. in the eighty counties where there was one Mississippi’s Each of 82 counties is divid- judge to a district patrol, officers would set districts, ed and a into five roadblocks, and make arrests in districts each, except is elected from that a rate; having high conviction when offi- 200,000 county having may over inhabitants *4 cers made in arrests a district where there judge have one additional for each district. rate, was a low conviction the traffic tickets Only Miss. Code Ann. 9-11-1. Hinds § were often made returnable to another dis- Jackson, County, City which includes the trict. County, just Memphis, and south DeSoto judges have two for each district. Under plaintiffs argue The that most civil suits Mississippi 171 of the Constitution and § are filed by agencies collection and busi- Code, 99-33-1 Mississippi § having heavy litigation. nesses volume of judges Mississippi jurisdiction court in have shop Creditors for a favorable forum and over occurring misdemeanors in their dis- judge choose the likely most to find for judge qualified tricts. If no is and availa- plaintiffs. judges Because used to receive ble in the district where the violation oc- an extra fee for postjudgment pro- certain curred, by any the case can be heard judge ceedings, they compound had a pecuniary county. judges juris- in the Id. The have in granting judgment interest for the diction over all civil actions in which the plaintiffs. damages amount of or the value of the The judge’s findings trial were favorable

property involved does not exceed Id. $500. defendants. He found that few offi- 9-11-9. Jurisdiction in civil cases is coex- § cers made arrest tickets returnable to a county. tensive with the proper Venue is in judge juris- in a district where there was no occurred, the district where the debt where diction. Mississippi Commissioner of resides, proper- defendant or where the Safety Public disciplinary testified that ty Objections is located. Id. 11-9-101. § against any patrolmen measures are taken to venue are waived if not raised the who return tickets to a district other than Cruise, 1924, Stanley defendant. 134 that in which the violation occurred. The Miss. 99 So. 376. district court also found that the use of judges Justice do not roadblocks and radar was not limited to salary. receive a At the time when these judges high districts which have convic- brought judge suits were and tried a re- Highway patrolmen tion rates. instead ceived for each criminal case computerized $6 docketed used “a scientific formula” signed, regardless factors, and affidavit upon of the dis- based many including prime position areas, of the case. Id. 25-7-25. The high fatality high accident and § viola- case, points, received in each civil contest- tion safety $8 and factors for the offi- uncontested, payable by losing ed or motoring public. cers and Some party. Additionally, though Id. each re- continued to receive tickets even proceedings ceived in civil they cases for in- occasion had found defendants not volving levy judgments guilty charges. of execution on and or had The dis- dismissed garnishment rejected proceedings. documentary attachment trict court and testi- case, Id. Since the trial of this evidence be- disparity the Missis- monial about by judges petty tween fees received in different criminal cases and small claims are districts, finding genesis that “the of this general public close to the and are an im- disparity is difference in highway essential, if portant, any not element in [in the] mileage, roads, types and classes of traffic justice. state’s And there must counts, rates, fatality accident and and sea- many, many judges Mississippi, be as in sonal traffic variations”. state, pure other in heart and resistant to the effect may their actions have on district court found that arresting litigating officers and creditors. transferred civil cases when the defendant Nonetheless, temptation exists to take a question raised the improper venue. biased view that will find favor in the Moreover, creditors continued to use arresting minds of litigating officers and who had found in favor of defendants or creditors. This vice inheres in the sys- had judgment entered for less than the tem. It is a fatal constitutional flaw. Ev- plaintiff demanded. forum shopping Some .ery person every litigant accused civil existed, but one witness testified that effi- entitled to a trial in a ciency judicial that is not experience were two of only practical fair on its face but in opera- primary elements creditors considered tion is free of deciding trial where to file suit. Statistics to enhance his by leaning income plaintiffs submitted not did show the direction of number or conviction in criminal percentage of cases when cases and venue judgment plaintiff was waived for the or when the cases were civil cases. trans- ferred, dismissed, temptation may not resulted in a determi- rise to the level to *5 nation in which Anthony exposed, favor of the defendant. Saint On these but it findings, exists for the district court concluded man as a de- the fee system pendent steady in civil on a flow filing actions did not vio- of fees for process. late due subsistence. district held that due observed, As has been England in a sense by was violated the additional fee for system abolished fee courts when it estab- postjudgment proceedings involving levy of Case, lished the principle in Bonham’s 77 judgments execution on and attachment Eng.Rep. (K.B.1608), 638 that a could garnishment proceedings. The fee not pecuniary have a litigation interest in gave Judge Justice Court ... an un- him, “[a] directly before indirectly. See pecuniary

constitutional interest in favoring Plucknett, “Bonham’s Case and Judicial Re- plaintiffs who file civil suits in his court”. view,” (1930). 40 Harv.L.Rev. 30 The fee On cross-appeal argues the State that the system payment for judges’ of compensa- district court holding erred in that the fee tion has been almost universally condemned system postjudgment proceedings for in civ- effect, because of its direct when fees de- il cases process. violates due pend cases, on the outcome of or its indirect effect, provides when it an incentive for

II. judges to enhance compensation by considering In Mississippi fee developing image convicting judge system the relevant constitutional fact is or a judge.4 creditors’ What was a useful judge’s that a depend bread and butter early in the development of this the number of cases filed in his court. Tra country has become a malignancy weaken- ditionally, justices peace of the ing who handle justice administration of general compensation sys- 4. For Appraisal of Systems”, discussion Courts: An of Fee 41 justices Maitland, peace, Note, tems (1974); for of the Sys- see F. U.Chi.L.Rev. 841 “The Fee History (1968); England Constitutional of 135 Judges tem Courts: Financial Interest of Sunderland, Process”, Study “A of the Justice of the Due (1974); 31 Wash. & Lee L.Rev. 474 Courts”, Note, Peace and Other Minor 21 Conn.B.J. “The Justice of the Peace: Con- (1948); Reynolds, System Questions", “The Fee stitutional (1967). 69 West.Va.L.Rev. 314 Process”, Courts-Denial of Due 17 Okl.L.Rev. (1964); Note, “Limited Access to the agencies other port have the for the courts or people which most courts with fines, All revenues from government. most contacts. by and forfeitures levied penalties, trend in the states years, In recent state should be transferred to the court justice of the judges on pay has been fund, appropri- not be general and should salary.5 similar courts a courts and peace receiving the court them or ated to Delegates of the the House government supports unit of local adopted the fol- Bar Association American such a court.6 House of Del- “That lowing resolution: and local bar associa- egates urge all state Judiciary Commission of the State of the fee states where tions in Mississippi has not overlooked this trend. justices judges and of the compensating reported Regular The Commission exists, undertake an active peace still Legislature State of Session Standing with the campaign, cooperation 6, 1970, Mississippi, January that “The fee Program, the Traffic Court Committee on justices both compensating system”. In 1974 the to eliminate the peace and constables is unsound and pub- adopted Association American Bar many lends itself to abuses-even potentially Relating Organi- to Court lished Standards hon- among men who are conscientious and provides as follows: Section 1.53 creditors, zation. especially large est.... Civil businesses, entirely exert too purpose Pines. The able to 1.53 Revenues from imposed pressure much economic over a and other exactions fines who must on court costs for judicial proceedings peace rely is to enforce through sup- livelihood”.7 law review com- provide law and not to financial Reynolds, budget when in which he sits is article “The In a 1964 law review Process”, System part of Due established with reference in whole or in Fee Courts-Denial twenty-five produced the author listed Okl.L.Rev. to the fine revenues the court. system: providing practice present some form of fee states as This is at a common local Colorado, Florida, Alabama, Arkansas, Geor- jurisdiction. It courts of limited should be Minnesota, Indiana, Iowa, Michigan, gia, Mis- Village Monroe eliminated. See Ward v. Nevada, Mexico, Montana, sissippi, ville, New New 34 L.Ed.2d 267 S.Ct. Carolina, Oklahoma, York, Pennsylva- North Ohio, (1972), Tumey Dakota, Tennessee, Carolina, nia, South *6 South 437, (1927).” 71 American Bar Asso L.Ed. 749 Texas, Utah, Vermont, Washington, and West ciation Standards of Judicial Ad Commission survey by Virginia. Institute of A recent the (1974). ministration 107 Silberman, Administration, Non-Attor- Judicial Empirical ney An in the United States: Justice Judiciary Re- 7. The Commission’s Study, (1979), of the shows that nine NCSC port Regular Legislature the Session of the to pay lower above-listed states now salaries to 1970, 6, Mississippi, January of the State of i.e., peace equiv- judges, justices court of the justice following includes the statement on the Florida, Alabama, Colorado, judges: Indi- alent peace system: of the court fee Vermont, Tennessee, Texas, ana, Michigan, (B) System. compen- Fee The fee sys- Virginia. have a mixed West Some states sating justices peace both of the and con- Connecticut, only compensation but tem of potentially lends itself stables is unsound and Minnesota, Nevada, Georgia, and South Caroli- many among to abuses-even men who are Mississippi. na have a similar to that of and honest. The commission conscientious A Na- See also Courts of Limited Jurisdiction: finds that there are substantial abuses result- Survey, of Law En- tional National Institute ing system. from the fee Justice, Law Enforce- forcement and Criminal course, justice peace should be Of a of the Administration, United States ment Assistance case, concerned about the facts in a but when 1977). (K. Department M. Knab ed. of Justice that, he knows if he a law enforce- frustrates by acquitting specifically ment officer an accused whom to “fines and 6. The section relates arrested, exactions”, commentary he will receive from makes it the officer has other but the applies tickets on which fees. It that officer no other traffic that the section also to clear each, very revenue-produc $4.00 it is difficult the J.P. receives states: “The use of courts as entirely system pro- judi objective. continuing ing agencies to be The fee abuse of the is a long recognized process. this dilemma. been as duces cial It has creditors, businesses, especially large have his income Civil for a to unconstitutional dependent him, entirely too much economic are able to exert pressure the outcome of cases before on peace indirectly who of the over a result often occurs but a similar 278 Stark, injustice. Every procedure

mentary agreed. “Constitutional which would of the Challenge possible temptation in the Justice Peace Court offer a (1973) (a Mississippi”, forget 44 Miss.L.J. man as a to the burden us); defendant, now proof discussion of the cases before required convict the Bunkley, “Some Observations Our Judi- might or which lead him not to the hold System”, (1954).8 cial 26 Miss.L.J. nice, balance clear and true between the state and accused latter the denies the years Supreme the fifty ago, Over Court process added.) due law. (Emphasis principles gov the basic that should defined 532, Id. at S.Ct. at 444. Ohio, 1927, Tumey this case. ern 437, 71 L.Ed. S.Ct. U.S. The next year Court held that constitutionality Court considered the of an Tumey was inapplicable rationale to anoth- compensating Ohio town’s its er mayor’s compensation system. Ohio mayor may- his services of the Ohio, Dugan v. regular salary or’s court. In addition his There, however, L.Ed. 784. mayor-judge directly in fees and shared Mayor salary paid received a Xenia fixed against costs assessed convicted defendants. treasury. from the .Fines city accumulated Taft, Justice Howard Chief William treasury. from his court contributed striking system, down the held that a distinguished Court case from Tu- process deprived defendant of due when mey ground on the that mayor received judged by person direct, per a who “has a salary general the same out of a re- fund sonal, pecuniary substantial interest in gardless of the outcome cases he decided. reaching against him conclusion in his any showing “There is no reason to infer on 523, 47 case”. 273 S.Ct. at 441. U.S. at in any failure to convict case or cases Justice aim at Chief took direct the vice in deprive would him of or affect fixed his system: a fee compensation.” 277 at at mayors There are who challenging doubtless would The criminal defendant argued mayor not allow such consideration as the statute also costs in each affect their judg- case to could be biased because as a member of the it, requirement city ment in but the of due he voted appropria- commission on the procedure judicial spending city of law in is not tion and funds. noted, however, argument satisfied that men city manager exer- highest greatest power honor and self- cised all of the executive in Xenia. on without carry danger mayor sacrifice could Id. “The has himself no as such rely operate. must Moreover, on court costs for his livelihood. continued to exist and is a There today some creditors file claims with definite trend United States justices peace when summons has to abolish this outmoded institution and this county accomplishment haps premature. be sent to be outside the served. will not be Per- *7 recognizes invalidity part judicial Even if the such an action the machinery J.P. of no of our other it, mentions justifiably. the creditor could be abolished so may processed anyway, insist be that it knowing might that an uninformed defendant Although any professional qualifi- the lack of debt, pay never know the difference and the cations alone would make mockery a this institution costs, including judgment. on a void justice, compensa- the of fact that justice naturally peace is of the under by tion is the fee creates another evil in obvious great pressure turn down to not this “busi- system. parties Fees collected from losing ness” for fear of all that creditor’s civil in the form of costs. In order to increase suits, on each one which he is entitled to a of business, may decisions be favor rendered $5.00 fee. bring of those the not in who business and record). (Exhibit filed in the favor of the one who has the law his The side. justice practicing peace of is It is incredible that the malfeasance the by insecurity many thus has been to fostered economics of able survive parts country down to office. our modern Bunkley, System”, omitted). brought country by Judicial times. It was to this “Some Observations on Our 1, spite (1954) (footnote British colonists place 26 Miss.L.J. 10-11 of its lack of a present society tenaciously in our has His judicial “procedural safeguard” duties. rela- This only but does executive not charter, guarantee as one of five the Xenia a fair trial in the mayor’s tion under commission, court; to the city nothing of the there suggest members is to judge, fines as by to his funds contributed the incentive to convict would be dimin- policy of the executive or financial by or to the ished the possibility of reversal on Nor, Id. city, event, is remote.” appeal. may procedure State’s trial court be deemed of courts held Turney After a number constitutionally acceptable simply be- by defects caused unconstitutional cause eventually the State offers a de- procedural by could be cured adjudication. impartial fendant an Peti- right change such as a to safeguards tioner is to a neutral entitled and de- by right jury.10 or a of trial venue9 tached in the first instance. attempts to rejected these Supreme Court Village 61-62, Tumey. In Ward v. Id. at circumvent at S.Ct. 83-84. 57, 80, Monroeville, 1972, 409 93 S.Ct. U.S. “possible temptation” standard es- 267, con Supreme Court

34 L.Ed.2d Turney tablished in and Ward was reaf- compensation system. third sidered a Ohio 1973, Berryhill, firmed in Gibson v. presiding mayor’s to over the In addition 36 L.Ed.2d a case court, Mayor of Monroeville had broad hot peace did involve of the th»t responsible He was for powers. executive courts but involved decisionmakers. Li- president village finances and optometrists, who censed were not members Fees, fines, forfeitures, village council. Optometric Association, of the Alabama criminal defend imposed costs on convicted charged by were the Association with un- “major part” of the vil provided ants professional conduct. Because the board repeated lage’s Supreme funds. The hearing composed optome- the cases was Turney standard. language the exact private practice trists for their own mayor’s situation test whether “[T]he account, the district court concluded that possible tempta ‘which would offer a is one revoking the success of the board in average man as a tion optometrists licenses of all who were em- proof required to con forget the burden corporations possi- ployed business would defendant, might vict the or which lead him bly personal redound to the benefit of mem- nice, clear and true not to hold balance bers of the board. The district court held and the accused...’”. between State the issue was not whether the board “possible A at 93 S.Ct. at 83. U.S. biased, actually members were but whether mayor’s “when the temptation” could exist course events there was a in the natural village fi responsibilities executive “possible temptation” to an man partisan to maintain may nances make him a case with sitting try as a bias from the high level of contribution against any presented issue to him. 411 distin mayor’s court”. Id. The Court Supreme at at 1674. The U.S. S.Ct. guished Dugan the case from because there finding Court affirmed the district court’s limited” executive au mayor “very had possible of a source of bias sufficient thority, and his relation to finances and disqualify the members of the board be- policy financial was “too remote” to war possible personal cause “of interest”. convic presumption rant a of bias toward at at 1698. S.Ct. 60-61, tion of criminal defendants. Id. at distinguish attempt The defendants reject expressly at 83. The Court that, ground on the unlike the contention, Ward State ed the also made the defend *8 cases, Mississippi, the of Ohio does not “procedural State ants in these that They trial. cite footnote provide jury a de novo trial safeguard” appeal of an Ludwig in of Massa any unfairness at the trial level: 3 Commonwealth corrected Avent, 1969, Borchert, 1961, 10. Melikian v. Application N.D.Miss. Wash.2d Cheever, 1963, 516; People v. 719, F.Supp. 359 P.2d 789. parte 165, 430; Ex Steele Mich. 121 N.W.2d (1942), 220 18 S.E.2d 132. N.C. chusetts, The district opinion court’s upholding the 2781, 2786, Ludwig constitutionality 49 L.Ed.2d 732. But did of Miss. Code Ann. 25-7- § possible 25(g) expressly not relate to bias court. mentions the basis of the held, among holdings, plaintiffs’ other Court attack on the fee system ap- as right plied the denial of a defendant’s to trial in in Hinds and counties. DeSoto Unfor- a two-tier was not unconstitutional. tunately, the trial specific made no is, right jury historically, trial findings to on the system' in those two safeguard, Supreme as the Court said in but counties and plaintiffs counsel for the did footnote, question, no “There is not draw the court’s attention to the mat- course, person Instead, that a who is accused of ter. the defendants and the court may crime receive a fair trial before a made the assumption dubious sys- event, magistrate judge”. tem as a whole is dispari- valid because the right magis accused has a to an unbiased inty filings explained can be by differences judge-with jury. trate or or without a And in example, districts. For conclusion right-with right he has this or without the the section in the court’s opinion dealing appeal to jury. and a trial de novo before a with criminal fees has two full pages deal- ing Judge with Frisby’s complaints. Judge possible temptation Here the is not as Frisby was single-judge in a district in obvious Tumey on its face as it was in Hancock County on the Mississippi Gulf Ward, Tumey-Ward but the standard con- complained Coast. He had high- trols litigation. way patrolmen “made tickets returnable only ‘convicting to judges’ ”. The district III. plaintiffs’ concluded that the evidence We consider question first whether “unpersuasive” was genesis that “the the Mississippi system compensating Jus- of this disparity is the previ- same as that cases, tice Judges in criminal Miss. ously opinion discussed in this regard Code Ann. 25-7-25(g), is unconstitutional § Frisby situations, and related g. e. differ- applied in Hinds and counties DeSoto ence highway mileage, types and classes jurisdic- where two have concurrent roads, counts, traffic accident and fatali- tion over each district. rates, ty and seasonal traffic variations”. principle, On distinguish it is difficult to These reasons for disparity filings are judge’s role in criminal cases from his inapplicable two-judge districts. There role in civil cases. In each instance he is was no any judge evidence that in the City tempted depart judicial from neutrality. Jackson, Hinds County, superior plaintiffs, however, perhaps because of accessibility competitor to his in his district. findings district court’s detailed of fact There was Judge evidence that Garner of justifying disparity in fees in the criminal Jackson, resigned who as a system, narrowed challenge sys- peace, was qualified lawyer a well but could tem in Hinds and DeSoto counties. The enough not obtain stay cases to in busi- system in these represents counties an a ness.11 fortiori case plaintiffs: for the there are two in each district in compe- direct When the record can be intelligently reviewed, tition for City business. In the of Jackson findings absence factual competing judges offices of separat- may be overlooked by appellate court. blocks; by just ed a few States, one office is as Davis v. United 5 Cir. 422 F.2d 1139, 1142; convenient and accessible as the other. Airlines, Nader v. Allegheny Judge 11. Former Justice Court James L. Garner District I Judge Garner highway patrol testified that tickets constituted Judge 1,239 Patterson major judges. a ing source of income for Accord- Garner, January from 1969 to June II District traffic tickets were divided as follows between Judge Judge Vance County: in the five districts Hinds Condia

281 Inc., 1975, 527, 540, F.2d D.C.Cir. 512 rev’d cases heard. But in the districts where 1976, 290, grounds, on other 426 judges 96 have jurisdic- concurrent criminal 643; 1978, 48 tion, S.Ct. L.Ed.2d Urbain v. and venue in a may district be based Co., 1954, Knapp Mfg. Bros. 6 Cir. 217 F.2d facts, on one of three law enforcement offi- ( 810, 816, denied, 1955, cert. 349 U.S. 75 cers have discretion as to which 99 L.Ed. 1260. This is such a the district will hear each case. case. The straight constitutional issue is drawn,

forward clearly the mechanics Although Mississippi Highway Patrol of- system easily comprehended, of the fee ficers are instructed to divide traffic tickets speaks evidence in the record for evenly judges between arresting jur- perceive itself. gained We no benefit to be isdiction, the Chief of Mississippi High- remanding from this case to the district way Patrol acknowledged the existence of proceedings. for further the continuing problem highway patrol- favoring men judges.12 certain Documenta- legal Our review of the record and com evidence, ry especially relating to traffic mentary plaintiffs’ bears out the assertion tickets, confirms testimony and reveals system, the fee at least in Hinds and a wide disparity in the judges caseload of counties, DeSoto denies defendants the due several districts within Hinds and DeSoto guarantee of a fair trial before an Counties. The statistics are startling.13 impartial judge, Tumey-Ward under Using Razor, Occam’s the simple and obvi- determining test for bias. See Johnson v. explanation ous for this disparity is that 212, 216, Mississippi, arresting officers make affidavits returna- 1778, 1780, 29 L.Ed.2d 427. Because of ble to judge they believed most likely to judge’s the relation between the volume of convict the temptation defendant. The was income, judicial cases and the amount of his there, as arresting officers well knew. possible system the fee creates a convicting judges may even have been against be biased defendants. highest motives, actuated by a getting There is no around this inherent stronger feeling that the law must be strict- judges, depend vice in a where two ly feeling enforced than the that constitu- subsistence, ent have on fees concurrent procedural tional rights pro- must be jurisdiction. tected, but the results in a biased The income of in all tribunal. As many years was said ago, the depends counties on the volume of criminal real viciousness of the arises not Highway Judge Judge District III Patrol Davis Foster __ Judge Sims 160 Abel Amacker 182 86 Judge Hines 0 66 98 93 2 Dawson Dunlop Edwards 50 67 IV District 101 142 Judge Judge 158 Kelly Gonce Krohn Martin Morrison 98 35 38 1,562 Foster 141 102 125 District V Judge Judge 412 Whitworth Fuquor Richardson * * 1,086 Braun Moody ('substantially none) highway patrol tickets were issued 1,645 Judge returnable to Condia’s court and Judge Garner testified that when he Judge became were issued returnable to Vance. judge, highway patrolmen Justice Court in- specific highway The record also shows that they formed him that did not issue traffic cita- patrol preferred officers one over anoth- person charged tions guilty. unless the er. Between October 1972 and March patrolling County officers District IV in Hinds divided tickets between as follows: Supra. 13. See note 11. *10 282 unscrupu- it offers for require proof judicial prejudice of actual possibilities or

from revenue, psychological from but lous pecuniary of a direct interest in the out- namely, a conscious engenders; it attitude particular come of cases. The test is the testimo- where prejudice unconscious or system presents “possible whether a fee a a evenly balanced. Such is at best ny man as a legal subtly eliminates mind frame of forget proof required the burden of to guilt of requires evidence which safeguard defendant, might convict the or which lead person a doubt before beyond a reasonable nice, him not hold the balance clear and Warren, a crime. G. convicted of can be true between the the accused”. State and Courts, (1942). 211 Traffic 444; 532, Tumey, 273 U.S. at 47 S.Ct. at officers enforcement Testimony of law Ward, 409 at 93 at 83. Be- S.Ct. supports science experts police possibility judges cause the exists that law enforcement plaintiffs’ assertion compete Hinds and counties will DeSoto in the outcome have an interest officers by currying arresting business favor with they participate. cases in which criminal taking officers or biased actions to increase naturally seek convic- Arresting officers caseload, that, of the Mis- Significantly, the Chief we tions.14 conclude under the testified that Highway Patrol sissippi system, judge might fee a minimize promotion, considering an officer of proof required burden to convict the record to examines the officer’s department might diligent be less defendant than of arrest citations the number determine the defendant’s protecting constitutional and the number by the officer issued therefore, rights. system, The fee does not that resulted. convictions Tumey-Ward satisfy deprives test and examples of includes extreme The record criminal defendants of their due A system. Hinds the abuse of the right impartial to a trial before an tribunal. Vance, named de- A. County Judge, T. suit, a radar ma- purchased possi fendant in this argue that the The defendants highway patrol in his use chine for aby judges can be avoided ble bias the machine the cost of district and claimed exercising right his to a defendant criminal his federal income expense on as a business trial de novo in by a jury or corrected judge, Howard E. Another tax return. has stat Supreme Court county court. The County, Mississippi,identified Pike Scott defendant to a criminal right ed that highway patrol agent of the himself as an before an de novo and a trial appeal an recipients of traffic notices to and issued remedy constitu not does impartial tribunal following letterhead: citations under v. trial. Ward in an earlier defects tional Mississippi Highway Patrol “State 61-62, Monroeville, atU.S. Village of the Peace Justice of 271-72; see 83-84, at 34 L.Ed.2d at County Pike E.D.Mich.1977, Johnson, v. Whalen Judge Howard E. Scott” 1204; Iglesias-Delgado F.Supp. occasion, complained On some D.P.R.1976, Rivera-Rivera, F.Supp. pa- over the failure highway patrol force equal with applies rule This 311-12. evenly traffic citations trolmen to divide given a is defendant a criminal where As particular district. among judges in a potentially before a a trial district, choice between County judge in a Hinds least one Furthermore, be jury. Garner, compelled to close biased Judge James jury virtually preside all of the traffic over his office because cause were returned in his district tickets issued a criminal trials, said that it cannot be judge. justice court other the district’s likely to obtain any more defendant he be tried should adjudication impartial of actual find no instance We need jury rather than judge. before a system constitu Crimi hold the fee judicial bias to not do nal Ward defendants are entitled Tumey and to a fair trial tionally infirm. Sunderland, 378; supra, supra note note at (1937); Lummes, Judge G. The Trial See 14. Reynolds, at (1942); Warren, Traffic Courts the fee sys- testimony any person juries Mississippi both before possible temp- a source of presented tem Justice Courts. *11 tation, that might they the court conclude the that the We hold that record shows however, prevail; the test is should in Hinds and DeSoto systems criminal fee “possible system presents a whether the process counties are in violation of the due average man as a temptation to the Tumey-Ward clause under the test. plain- that the and the court finds judge”, IV. not carried burden under tiffs have We consider in this section the test, light pre- particularly in this district court’s determination that the civil honesty and in- judge’s] of sumption [a side of Mississippi the fee system, Miss. tegrity— 25-7-25, Code Ann. comports with due § plaintiffs had The court concluded that the noted, process.15 we provides As the Code of presumption “overcome a hones- failed to judge that the receive a fee of for each adjudi- integrity serving ty and those case filed in his court. cators”. The district court wrote: We conclude that the district court used ... finds Court that on numerous wrong is no language the standard. There Judges occasions Justice Court have Turney “possible the qualifying in Ward of in found in favor the defendants con- temptation” by necessity standard the of judgment tested civil cases or entered overcoming presumption probity less than sued for creditor- the by the That added burden plaintiffs, yet adjudicators. creditor-plaintiffs and con- favor of Larkin, 1975, comes from Withrow v. tinue to file suits in their courts. The presented negates evidence herein the upon 43 L.Ed.2d plaintiffs the contention of that Justice which district court the defendant the and Judges disregard Court the mandate of in With- strongly relied. But question the case, the particular the law and facts of a row physicians whether was a board perfunctorily plaintiff and find for the adju- investigative could exercise both and defendant, the against deny and and thus not an dicative functions. This is unusual process defendants due law. agencies. situation administrative There question of was no the members the of, fully The Court is aware and has its profiting personally board from decision. care, of vari- testimony studied with the out, Supreme points As the Court “The presented plaintiffs by ous witnesses the Board, however, processes utilized the do opposed who are to the fee and system unacceptable in themselves not contain subjective feelings who to their testified risk of bias”. 421 at U.S. at produced pressures that it on individ- the But have been “various situations experience in which teaches that identified decide the cases before him ual part on the probability of actual bias way. in a If the test were wheth- the certain high is too to be plaintiffs produce er the were able to or decisionmaker 15. The civil side of the Justice this assertion and the Court has found none Court tional, independent was attacked as unconstitu- research. here, ground on the same eleven F.Supp. at issue at 518. years ago. per opinion In a curiam a three- Melikian, advantage Since we have the court, Avent, district Melikian v. N.D. analysis. Ward’s It leads to examine the us F.Supp. Miss. was workings systems of the fee with a nicer scruti- upheld. The wrote: Court Melikian, ny employed than that we which judice In the case sub the Justice of the longer addition, persuasive. can no consider In regardless Peace received his fee of the out- option the Melikian court found that the of a argument come of case. that the jury any possible process trial cured due effect. [judge] plaintiff favor must in order to why possibility II In Part we of a discussed impress secure the business does not jury particular trial does not case cure having Court as merit. does Counsel not process system. an entire the due defect in any authority refer the Court to sustain constitutionally cases The Court 421 U.S. cerned over the the fully aware that 99 L.Ed. tutionally unacceptable “Not Murchison, law has of attached to average as Turney, pecuniary we read personal probability Turney these only is always Ward, man” of at those in which cited the cases, gain interest and Ward a biased adjudicators and opinions endeavored of unfairness’ “possible tolerable. yielding by support Tumey. Berryhill. presumption abandoning neutrality. in the outcome decisionmaker consti Supreme at the but ‘our in those to temptation to the of this 133, 75 1464, citing but to Supreme the adjudicator Among these ”. prevent it was con *12 expectation cases, was statement system Withrow, probity Court, In re even has tional justice due Virginia struck down system “the balance plaintiffs dence necessary S.E.2d The fee [The provides that a Justice civil civil tested or uncontested possibility plaintiffs’ Ward grounds. that “on numerous occasions” Supreme suit cases, court in Justice of the Peace $5 “[f]or State make * * * occurs on state and federal nice, judges perfunctorily “shall against argument The it clear that a violation whether entering when the clear and true”. Nor plaintiffs Poteet, judges will fail to charge Court wrote: have defendants. of a and Appeals similar of the refuted W.Va. the and whether and collect” judged to show fee suit be trying Peace, 1974, 20 civil constitu of West find for statute] by evi- creates Turney fairly. or not some hold con- any fee in a indi- probity as in the of an completed not interested or discontinued.” the suit be even, great in perhaps Clearly, system provided of the vidual under the statute, the of the Jus- majority of It was interested rath- the above income judges. the of the is determined tice Peace legislative the in the er in inherent defect in his court. number cases instituted vulnerability the arising framework from that more cases necessarily It follows the in average the works the man-as re- handles more fees he will $5 he appears to practice as it defendants ceive. there public. inquiry to the The Court’s and our inquiry here is not whether a par- [*] [*] [*] [*] [*] temptation, ticular man has succumbed to Although this case is civil rather than make but whether the economic realities in Tu- criminal, principle expressed design to a of the fee vulnerable 50-17-1, rney applies. Code, 1931, as “average man” “possible temptation” to the amended, provides it that a Jus- wherein judge. we have need to be as Here no charge shall and collect tice Peace particular judge; fee, permits of the honor of a in fact only solicitous a not but $5 who will questioned. encourages has Nor do concerns one to favor those none been incentive to “business”. The bring him necessarily judicial re- administration built increase the number of fees is high evidentiary Tu- quire a barrier. The added.) into the statute. (Emphasis sum, test, is rney-Ward in levelled at This is system, judge. not the individual 631-32. S.E.2d speaks the reason it compensation “average judge” man. as man cases in derive from civil judges test to concept was made the heart of the cases depends directly on the volume of Everyman, prey introduce humble choose, county filed. Creditors could life, bread on vicissitudes of the need for judge to proper, which is which suit table, small from the infer, and for favors It is reasonable to decide cases. right people. inference, that supports the record more frequently creditors would file The effect approach of the district court’s who favor courts of the tended to carry too plaintiffs was to force the plaintiffs. testimony to this There was not heavy evidentiary burden. It effect,16 and testimony unexceptional further to the effect forum bution of cases is, there shopping by creditor-plaintiffs; knew and understood this to be course, many areas of forum-shopping noted, the case.17 As caseload courts however, follow, does not as the the law. It could and did fall so low as to put that no due argued, district court out of business while his competitor pros- an uneven be demonstrated violation can pered. has a di- case distribution-when The evidence undisputed the civil larger resulting fees rect interest total cases are unevenly distributed throughout larger volume of business. from a the judges in the various counties.18 The process. of due district court is indeed violative attributed the uneven distri- 16. Two volume testified as follows: of suits is off from what it was two years ago. saying us, me, A: ( Welcome what I’m there are Patterson, Deposition County, persons some Hinds P-76 at who talk to in such matters and these are of the matters I have respond generally never get wanted to Businesses to. Q: want to the best talking You mean-. money they can, Q: You are about cred- deal for their is that not laying you? itors now who are long heat on they stay legal? true? As can Yes, uh-huh, A: who want us to do these say go along A: I’d that I have to with the *13 things, kind of things and those are some of the theory assumption they or the want the eh, that I ... don’t do. best deal. happened, Judge, you What has Q: when Id at 49. things have refused to do these for the credi- your experience InQ: in the Justice of the tors? Peace, you have found other reasons that Eh, saying. A: Welcome this is what I’m a business might establishment select one your business, they down-your break busi- particular justice peace, of the other than the They bring you ness. don’t no more busi- justice nearness peace of the of the office ness. place from their of business? Scott, Deposition County, Adams P-3 at you why A: I could tell I would if I was a 15-16. plaintiff, and that would be the service that I you your Do feel that Q: any refusal to solicit got. puts you disadvantage civil business at a Deposition Hendrick, County, Hinds P-77 at obtaining civil business? 20. A: I feel sure it does. County, Deposition 18. In Herring, County, example, Hinds for Hinds P-98 where all ten at justice court have full-time offices with- .16. city Jackson, in the limits of the breakdown of deposition: 17. One said in period civil cases for April the six months’ they (creditors) way If did not like the Q: through September 1976 1976 was: Court, that their business was handled in this they would take and file it with someone Total Percent else? -pflataL Cases A: Yes. Herring District 1 8% 688 275 Smith, Deposition Washington County, P-67 3% W. N. Patterson Williams Covington District 2 17% at 8. 1422 4% bringing IA: don’t know their reason for 13% 13% District 3 Moore Martin Bass me, their accounts many they I and don’t know how 9% take to the other J.P.s. District 4 732 237 3% Foster certainly your But one reason would be Q: District 5 20% Hendrick having been in the credit collection business F.O. yourself? 10% Patterson Yes, good my job, A: I think I am at I and gotten think that good that is the reason I’ve many, good they because I am now and Similarly County, in Lowndes the breakdown try they get good will to see if can results on among of civil cases the three court their suits of course. judges with full-time offices located in Colum- Breland, Deposition County, Warren P-64 at period bus for the same was: you you well If don’t handle the business Q: know that there is a likehood or at least a Total Percent strong possibility going that the business is Cases ot Total - District 1 Linn up to end somewhere else? 17% - Dle 355 346 42% Well, may only say A: be I can so. - District 3 Crowder 41% my diligently, that I have tried but volume of business, going am suits-I not to call the but no matter fee ques- his $8 into will receive Judge bloomed temptation Possible However, case. of the outcome advertised what the Judges behavior. tionable plaintiff for is rendered judgment Several books. if telephone pages yellow is garnishment lunch levied execution returns tax on their listed Judge will “clients”, credi- judgment, on sued for expenses entertainment Even fee. One advertising. additional receive tor-plaintiffs, per ninety-five fol- reading eighty as though from card a business used actions criminal civil and of the cent lows: uncontested, this fact Justice clock. around checks bad work We inter pecuniary potential direct creates GUARANTEED SATISFACTION of all outcome Judge in the for the est Also on bad accounts. A Jus in this court.... filed civil cases The Jobs We Per- References Furnished On therefore, an un has Judge, tice Court form favor interest pecuniary constitutional jus- Mississippi civil We conclude that in his civil suits who file ing plaintiffs presents “possible tice court fee extent, portion and this to this judge”, man as withstand cannot fee Mississippi’s difficult, impossible, if not making it Tumey rationale. test “nice, clear and to hold the balance resolu- district court’s agree with the We and defendant.19 plaintiff true” between holding matter, its and affirm of this tion apply court did not the district Because Few, any, if fees. post-judgment sub- Tumey-Ward standard and because cases are holding, affected for the support the dis- stantial evidence does not statute has now been amended to abolish fact, findings trict court’s we hold the additional fee. in civil cases in the State of ******. *14 Mississippi process. violates due judgment of the district court is AF-

V. part FIRMED in and part. REVERSED in REHEARING AND ON We consider finally the district REHEARING court’s determination that EN BANC statue permitting an additional fee for fur PER CURIAM: ther proceedings involving levy of execution petition Rehearing is DENIED on judgments and garnish attachment and Judge nor panel and no member of this ment proceedings is unconstitutional. regular active this Administrative Unit district court wrote: be the Court having requested service (Rule Fed- polled rehearing en banc Thus, when case is filed in a Jus a civil Procedure; Local Appellate eral Rules of prepaid, costs are tice Court and 19. A: he had sued the man and the man had court cost when I dismissed the suit wherein him in full and A: show, and try words business from me.... the line and some of it is Q: creditor has the Judge Patterson testified: to tell peace I know that 1 made one man That’s correct. I understand from your feeling [******] with some of he you when files lawsuits what feeling brought that sometime a I dismissed the case Sometimes to do them sometimes talking he owns the them withdrew with? and receipts they want to you had pay really big before, a few along me a in to paid Deposition assessed the cost because I what This the law on that and he informed me that was the last business that he would my where he wanted had the December of cost me amount of civil had the record would show that court. Well particular perhaps previously grieved privilege money actually Patterson, that would follow one person business, my given me a considerable it.... I did not make reason that before I finished keep my carrying attitude him, was in P-89 at 20. which, of he seemed some- personally it had his business office business in that I expenses and the letter of resigned in course, open... my bring respect and he term, he . 16; Rule Fifth Circuit Judicial Fifth Circuit 14,1981), the January

Council Resolution DE- Rehearing En Banc is

suggestion

NIED. as to the now before this

Except cases

Court, 78- consolidated under number ren- judgment rulings the Court’s January operate pro-

dered shall from the date man-

spectively and after

date shall issue. stayed

The issuance of mandate is 10,1981. April

until WALKER, Plaintiff-Appellee,

Simmie L.

The BLACKSEA STEAMSHIP al., Defendants, et

COMPANY Company, Shipping

Baltic

Defendant-Appellant.

No. 79-1953. Appeals, States Court

United

Fifth Circuit.

Unit A

Feb. Rehearing En Banc Denied

Rehearing 17, 1981.

March *15 Jr., Manthey,

Gustave A. Dwight J. Le- Blanc, Jr., Orleans, La., New for defendant- appellant. Ellis,

Murray, Murray, Braden Landry, & Burns, Stephen W. Murray, Glenn B. New Orleans, La., plaintiff-appellee. AINSWORTH, Before Judge, Circuit KUNZIG, Judge,* RANDALL, Circuit Judge. Claims, Court of *Judge United States designation.

sitting by