Special Committee Opinion 2018-21

2018-21 Opinion

The Special Committee on Judicial Election Campaign Intervention received a request for an opinion from a Candidate.

The Candidate provided a document identified as “Questions for Political Candidates.” He adds that the candidates for Chancery Court Judge and County Court Judge in Lamar County were asked to attend meeting of the American Christians Taking a Stand for Jesus Christ (ACTS) at Lamar Christian School on October 8, 2018. Each candidate was requested to complete this form, sign it, and return it to the organizers of this event. Several of the candidates expressed concern that the questions might violate certain provisions of the Code of Judicial Conduct, Canon 5. We were later informed that ACTS intends to distribute the answers of the various judicial candidates to local pastors, who will give each candidate a “spiritual grade”, and publish that grade on their website.

The Candidate asked for an opinion as to whether any or all of the questions violate the Code of Judicial Conduct.

QUESTIONS FOR POLITICAL CANDIDATES:

1. Where do you go to church? The Special Committee is aware of no Mississippi Statute or Canon in the Mississippi Code of Judicial Conduct that would not permit a candidate to answer this question.

2. Do you go to church faithfully? See Response to Question 1 above.

3. What is your pastor’s name? See Response to Question 1 above.

4. Are you a born again Christian? See Response to Question 1 above.

5. Should you consider the Bible in government policy? See Response to Question 1 above.

6. Do you vote with these same biblical convictions? See Response to Question 1 above.

7. Should faith play a role in government? See Response to Question 1 above.

8. Would you ever vote for a bill to fund or support abortion? This question does not appear to be directed at judicial candidates because judges do not vote on bills to fund anything.

9. Do you think the government has a role in marriage? If so, do you believe same sex marriage should be allowed? The Special Committee would direct you to Mississippi Code of Judical Conduct Canon 5(A)(3)(d), which provides

(d) A candidate for judicial office shall not:”

(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office;

(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or

(iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent;

Commentary

Section 5A(3)(d)(i) prohibits a candidate for judicial office making pledges or promises to decide cases in any particular way and statements committing the candidate with respect to cases, controversies or issues likely to come before the court on which the candidate will serve if elected. This section does not prohibit or limit a candidate’s freedom to announce the candidate’s current views on issues so long as the announcement does not bind the candidate to maintain those views after election. See Republican Party of Minn. v. White, 536 U.S. 765 (2002) (declaring unconstitutional restrictions in the Minnesota Code of Judicial Conduct on the announcement of views on legal and political issues.) The comparable offending language, referred to as the “announce clause”, formerly appeared in our Code of Judicial Conduct, but was removed with the revision of the code on April 4, 2002. This Section does not prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties.

Section 5A(3)(d)(ii) prohibits a candidate for judicial office making statements that appear to commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of the candidate’s personal views. See also Section 3B(9), the general rule on public comment by judges. Section 5A(3)(d) does not prohibit a candidate from making pledges and promises respecting improvements in court administration.

Section 5A(3)(d) applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment. See also Rule 8.2 of the Mississippi Rules of Professional Conduct. Phrases such as “tough on crime,” “soft on crime,” “pro-business,” “anti-business,” “pro-life,” “pro-choice,” or in any similar characterizations suggesting personal views on issues which may come before the courts, when applied to the candidate or an opponent, may be considered to be prohibited by Section 5A(3)(d) only when used in a context which contain a pledge or promise to decide cases in a particular manner.

As discussed in the Commentary, the Mississippi Supreme Court has recognized Republican Party of Minn. v. White, 536 U.S. 765 (2002). Further, the Special Committee is aware of decisions from the United States Supreme Court, federal circuit courts of appeal and federal district courts that have specifically addressed the constitutionality of the “announce clause” and restrictions on a candidate’s First Amendment freedom of speech rights. There are federal decisions that are in conflict with the Canon 5(A)(3)(d).

However, the Mississippi Supreme Court, with knowledge of these decisions, has not revised the Mississippi Code of Judicial Conduct. And, to the knowledge of the Special Committee, there has been no legal challenge to this provision in Mississippi’s federal courts.

The Special Committee is of the opinion that it has neither the jurisdiction nor the authority to conclude that the Mississippi Code of Judicial Conduct, specifically Canon 5(A)(3)(d) is unconstitutional or may not be enforced in Mississippi elections. Therefore, the Special Committee is of the opinion that this question may violate Canon 5(A)(3)(d).

10. What is your view on separation of church and state? See Response to Question 9 above.

11. What is your stand on the 2nd Amendment- the right to bear arms? See Response to Question 9 above.

12. What is your stand on legalizing marijuana or any other illegal drug? See Response to Question 9 above.

13. What is your stand on assisted suicide? See Response to Question 9 above.

14. Do you support, or did you support, House Bill 1523? See Response to Question 9 above.

15. Can you do the job? See Response to Question 1 above.

Special Committee Opinion 2018-20

2018-20 Opinion

The Special Committee on Judicial Election Campaign Intervention received a complaint filed by Candidate G against Candidate F.

The Committee to Elect F Judge is responsible for a radio ad that states:

False and misleading! A state’s special committee on judicial elections found [Candidate G] to be intentionally dishonest. Why trust criminal defense attorney [Candidate G]? In [Candidate F]’s courtroom there has never been a ban on prayer. False campaigning through [Candidate G], maybe in Washington, but not tolerated in _____ County. Why is he being intentionally dishonest? Is it because he lacks the relevant experience to be a judge? Vote to keep our Judge [Candidate F]. Appointed by Governor Phil Bryant as circuit court judge. Elected by _____ County three times, because of her honesty, integrity and experience. Paid for by the Committee to Elect [Candidate F] Judge, candidate approved.

In response to a complaint filed by [Candidate F], the Special Committee issued opinion 2018-15. The Special Committee concluded:

As to the comparison chart, Candidate [F] provided information to the Special Committee and Candidate [G] that shows her correct information. The Special Committee agrees that Candidate [G] should include the updated and correct information as provided by Candidate [F] and that Candidate [G] should not use the prior comparison chart and shall cease and desist from distributing information that is incorrect.

However, in the review of the information provided, the Special Committee finds that the use of the term “Years Practicing Law” should include year(s) Candidate [F] practiced law privately or in government service. Also, under “Courtroom Experience, the information should include Candidate [F]’s years of service as a circuit court judge. As to the remainder of the comparison chart, the Special Committee has no information to suggest such information is not true and correct.

Further, the Special Committee is of the opinion that it is a misrepresentation for Candidate [G] to use the statement “THE FACTS AS CONFIRMED BY BOTH CANDIDATES ON 8/30/18.” Candidate [F] has not confirmed the “facts” in the comparison chart as they pertain to Candidate [G]. As a result, the Special Committee instructs Candidate [G] to cease and desist the use of the phrase “THE FACTS AS CONFIRMED BY BOTH CANDIDATES ON 8/30/18” on campaign literature.

In Opinion 2018-15, the Special Committee did not find Candidate [G] “knowingly misrepresented” Candidate [F]’s qualification or that his campaign materials were “intentionally dishonest.”

The Special Committee is of the opinion that Candidate [F]’s radio ad that states that “[a] state’s special committee on judicial elections found [Candidate G] to be intentionally dishonest” is in fact false and misleading. The Special Committee directs Candidate F and the Committee to Elect [Candidate F] to cease and desist the use of this radio ad.

Special Committee Opinion 2018-19

Opinion 2018-19

The Special Committee on Judicial Election Campaign Intervention received complaint against Candidate K.

According to the complaint, the Committee for Candidate K is in violation of Canon 5 as a result of a “Meet & Greet” event. The complaint makes the following allegations:

1. Candidate K is taking an active role and inviting people and to which she will be attending.

2. Candidate K’s Committee is advertising this event to a large number of people on Facebook. The advertisement announces that the “Honored Guest” is Governor Phil Bryant.

A. This is a candidate aligning with a political figure and then paying money, using campaign funds, to advertise that alignment to the general public.

B. Governor Bryant’s office does not seem to have the event on the governor’s calendar. Candidate K’s opponent claims that they had someone confirm this with the Governor’s office. The complaining party alleges that he Committee “is just using the Governor’s name for political gain, to give the appearance that he is supporting this particular candidate, without his consent. [T]his is very misleading and should also be considered a violation of the rules.

The first allegation claims that Candidate K is in violation of Canon 5(C)(2), which provides that “A candidate shall not personally solicit or accept campaign contributions . . . .” The complaint argues that Candidate K violated this Canon “by taking an active role and inviting people and to which she will be attending.” To support this claim, the complaint includes a copy of the Committee’s Facebook page that announces this event. In a comment, a person posted “I saw your signs in Byram . . . !! So excited for you!” Candidate K responded: “Aww thank you! Please pray for me and God’s will be done. Also I hope you and your hubby will come to our Hal and Mals fundraiser Thursday night. It’s a wonderful chance to meet and greet lots of business folks.”

The Special Committee is of the opinion that Candidate K’s post was not a violation of the personal solicitation rule under Canon 5(C)(2). This allegation is dismissed.

The second allegation has two parts. First, the complaint alleges that this event is in violation of non-partisan judicial elections. In Opinion 2018-12, the Special Committee opined:

1. Can a judicial candidate have a fundraising event for campaign contributions where the invitation indicates that the Democratic or Republican nominee for Congress will be the special guest?

Response: A candidate for judicial office is not allowed to solicit campaign contributions. See Williams–Yulee v. Fla. Bar, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015). Also, Canon 5(C)(2) Mississippi Code of Judicial Conduct provides that:

A candidate shall not personally solicit or accept campaign contributions . . . . A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate . . . . Such committees may solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate’s campaign and obtain public statements of support for the candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions and public support from lawyers.”

The Special Committee finds no rule or law that prohibits a candidate’s committee from having a fundraising event that indicates a Democratic or Republican nominee for Congress as the special guest.

Consistent with Opinion 2018-12, the Special Committee is of the opinion that there is no rule or law that prohibits a candidate’s committee from having a fundraising event that indicates an elected official as the special guest. This allegation is dismissed.

Second, the complaint alleges that Governor Bryant’s office did not give his consent to host this event. The only supporting documentation provided is that “someone called” the governor’s office. Without an affidavit as to this information, the Special Committee does not have sufficient evidence to determine whether this allegation is in fact true. In response, Candidate K provides equally unsubstantiated evidence of a copy of a text that purports to be from Governor Bryant that indicates his consent to attend this event. The Special Committee does not sufficient evidence to support this allegation. This allegation is dismissed.

Special Committee Opinion 2018-18

Opinion 2018-18

The Special Committee on Judicial Election Campaign Intervention received a complaint against judicial Candidate J.

The complaint alleges that Candidate J has violated Special Committee Opinion 2018-06. It is alleged that, on July 30, 2018, Candidate J appeared before a circuit court venire and stated that she has served as “Special Youth Court Judge.” In addition, the complaint includes copies of Facebook posts, emails, articles, and campaign materials where Candidate J indicates her experience as a “Special Youth Court Judge.”

In response, Candidate J claims that it was appropriate for her to claim the title as “Special Youth Court Judge.” She cites Miss. Code Ann. § 43-21-113, which provides:

When a judge shall certify in writing that he is unable to serve because of illness or absence from the county or district, the judge may appoint as provided in Section 43-21-123 a special judge to serve in his stead. A special judge shall possess all the powers and perform all the duties of the regular judge. The compensation for the special judge shall be fixed on order of the judge as provided in Section 43-21-123 on the basis of a statement as to the time and expense incurred by the special judge and shall be paid by the county out of any available funds. In the case of recusal, a judge shall be selected as provided by law.

(Emphasis added). Candidate J provided copies of an order by the County Court Judge and the Board of Supervisors’ minutes that indicate her appointment as a “special judge” under this section. She claims that the position of “special judge,” under section 43-21-113, has a different statutory title than that of a “referee,” under section 43-21-111.

Special Committee Opinions 2018-06 and 2018-11 consider whether a judicial candidate who has served as a “referee,” under Miss. Code Ann. § 43-21-111, may refer to themself as a “judge.” The Special Committee opined that a person who served as a “referee” under section 43-21-111 may not refer to themself as a judge.

Based on the information provided to the Special Committee, the Special Committee is of the opinion that Candidate J was appointed as a “special judge” under section 43-21-123. Accordingly, it is appropriate for Candidate J to refer to this a “special youth court judge.” The complaint is dismissed.

Special Committee Opinion 2018-17

Opinion 2018-17

The Special Committee on Judicial Election Campaign Intervention received a request for an opinion as to whether a current municipal judge, who is running for chancery judge, may film a commercial with the Judge in a robe on the bench when court is not in session.

In Opinion 2014-001, the Special Committee determined:

Canon 5A(3)(d)(iii) . . . prohibits a candidate for judicial office from knowingly misrepresenting his/her “qualifications, present position, or other fact concerning the candidate . . . .” The Special Committee has previously opined that a candidate who holds another judicial office may use the title “judge” in campaign literature if the material clearly identifies the circumstances justifying the use of the title and identifies the judgeship currently held. See Special Committee Opinion 2006-002. . . .

All candidates for judicial office are held to a high standard of accuracy in their campaign advertisements. Judicial robes, often used by candidates in judicial campaign materials, are a widely recognized symbol of judicial office. Like the use of the term “judge,” the depiction of a candidate wearing a judicial robe may be misleading in certain circumstances. For example, the depiction of a candidate wearing a robe when he/she currently holds no judicial office and has never held judicial office misrepresents the candidate’s present position and violates Canon 5A(3)(d)(iii). Furthermore, in those instances in which a sitting judge seeks a different judicial office or a former judge seeks judicial office, the depiction of the candidate wearing a judicial robe may also imply that the candidate currently holds the office sought. Therefore, the Special Committee is of the opinion that while a candidate who presently holds or previously held a judicial office may be depicted in campaign materials wearing a judicial robe, the advertisements must also clearly identify the office currently or previously held in an easily readable size and form, such that the materials will not mislead the voter as to the candidate’s present position.

Consistent with the previous ruling, the Special Committee on Judicial Election Campaign Intervention is of the opinion that a current municipal judge, who is running for chancery court judge, may film a commercial that depicts the candidate in a judicial robe if, as required by Canon 5A(3)(d)(iii), the candidate clearly explains the judicial role of the position the candidate held.

This opinion is consistent with Special Committee Opinion 2006-002 and Opinion 2014-001.

Special Committee Opinion 2018-16

Opinion 2018-16

The Special Committee on Judicial Election Campaign Intervention received an anonymous complaint filed against Candidate H (a candidate for ________ Court). The complaint alleges that Candidate H is pictured on Facebook with Candidate I (a candidate for [a different court]) at a fundraiser supporting Candidate I. The complaint alleges that Candidate H is in violation of Canon 5, and by attending a fundraiser supporting Candidate I, she is publicly endorsing a judicial candidate.

In response, Candidate H admitted that she attended Candidate I’s fundraiser and that there was a picture of her with Candidate I on Facebook. She claimed that she, as well as several other candidates, have incorrectly interpreted Canon 5, believing that a candidate is permitted to attend a fundraiser for another candidate who is running in an election which is not in their district or on their ballot.

Further, she indicated that she is not on Candidate I’s campaign committee, is not a donor, was not a sponsor of the event, does not have a campaign sign for Candidate I in her yard or at my office, and have made no statements to the media on his behalf. She asserts that she attended the fundraiser as a long-time friend and fellow law school graduate.

Candidate H stated that she understood this was a violation of Canon 5 and that she has contacted anyone that she knows may have the picture in question on their Facebook page and asked that they remove the post and confirmed that all persons She also states that the post has been removed from Facebook and that the picture should no longer be on Facebook in any way shape or form. The Special Committee notes that the picture indicates that Candidate H was wearing a sticker in support of Candidate I.

The Special Committee is satisfied with Candidate H’s response. However, the Special Committee is of the opinion that there is no prohibition against a judicial candidate attending another political or judicial candidate’s fundraiser or event. Indeed, Canon 5C(1) provides:

C. Judges and Candidates Subject to Public Election.

(1) Judges holding an office filled by public election between competing candidates, or candidates for such office, may, only insofar as permitted by law, attend political gatherings, speak to such gatherings in their own behalf while candidates for election or re-election, identify themselves as members of political parties, and contribute to political parties or organizations.

Commentary

Section 5C recognizes the distinction between appropriate political activities by judges and candidates subject to non-partisan election and those subject to partisan elections. The language of Section 5C differs from that of corresponding provisions in the ABA Model Code, Sections C(1)(a)(ii) and (iii), in recognition of Mississippi’s non-partisan elections for certain positions. Furthermore, Section 23-15-973 et seq., Miss. Code Ann. (1972) imposes restrictions on candidates and political organizations to assure the non-partisan quality of judicial elections for Supreme Court, Court of Appeals, Chancery Court, Circuit Court and County Court justices and judges. Section 5C(1) permits judges subject to election at any time to be involved in limited political activity. Section 5D, applicable solely to incumbent judges, would otherwise bar this activity. Section 5C(1)(b)(iv) of the ABA Mode Code has not been incorporated. Attending or speaking at a political party gathering in the judge’s own behalf while a candidate does not constitute alignments or affiliation with the party sponsoring the gathering.

The Special Committee is of the opinion that a judicial candidate may in fact “attend political gatherings [and] speak to such gatherings in their own behalf.” Candidate H was not in violation for attending the political gathering of another candidate. However, Candidate H was in violation of this Canon when she placed another candidate’ sticker on her dress, which indicated that she was in attendance not simply on her “own behalf.”

The Special Committee has determined that Candidate H has taken the appropriate steps to comply with Canon 5 when she removed any photographs from social media that indicate she has publicly supported Candidate I. The Special Committee declines to take further action.

Special Committee Opinion 2018-15

Opinion 2018-15

The Special Committee on Judicial Election Campaign Intervention received a complaint filed by Candidate F against Candidate G.

Initially, Candidate F complained that Candidate G used a “comparison chart” that contained information about her experience that was is factually incorrect. She claimed that this was a violation of Canon 3A(d)(iii), which provides that a candidate “shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.”

Candidate F provided an affidavit and argued that the comparison misrepresented her qualifications. Specifically, she claimed that the incorrect facts are as to her experience. Candidate F also complained that the website failed to include the information required under Miss. Code Ann. §23-15-1025 as to who paid for the website and whether it was approved by the candidate.

Candidate G was given notice of the complaint and was allowed to respond. Candidate G stated that his Committee inadvertently failed to place the “paid for” language on the website in question. He also indicated that this was immediately corrected. Candidate G also indicated that he had revised the comparison chart consistent with the information provided. In addition, the comparison chart was also changed to include the statement “THE FACTS AS CONFIRMED BY BOTH CANDIDATES ON 8/30/18.”

Thereafter, Candidate F complained that this was incorrect and a misrepresentation because she did not confirm any of Candidate G’s information on the comparison chart.

The Special Committee has determined that Candidate G’s Committee has updated the website to include the required statutory language under Miss. Code Ann. §23-15-1025. Accordingly, the Special Committee is satisfied that Candidate G is not in violation of this requirement.

As to the comparison chart, Candidate F provided information to the Special Committee and Candidate G that shows her correct information. The Special Committee agrees that Candidate G should include the updated and correct information as provided by Candidate F and that Candidate G should not use the prior comparison chart and shall cease and desist from distributing information that is incorrect.

However, in the review of the information provided, the Special Committee finds that the use of the term “Years Practicing Law” should include year(s) Candidate F practiced law privately or in government service. Also, under “Courtroom Experience, the information should include Candidate F’s years of service as a _____ court judge. As to the remainder of the comparison chart, the Special Committee has no information to suggest such information is not true and correct.

Further, the Special Committee is of the opinion that it is a misrepresentation for Candidate G to use the statement ““THE FACTS AS CONFIRMED BY BOTH CANDIDATES ON 8/30/18.” Candidate F has not confirmed the “facts” in the comparison chart as they pertain to Candidate G. As a result, the Special Committee instructs Candidate G to cease and desist the use of the phrase “THE FACTS AS CONFIRMED BY BOTH CANDIDATES ON 8/30/18” on campaign literature.