Lots of Rules out for Comment

Supreme Court of Mississippi Seeks Comments on Proposed Revisions to the Mississippi Rules of Criminal Procedure
The Supreme Court’s Rules Committee on Criminal Practice and Procedure is seeking comments on proposed amendments to the Mississippi Rules of Criminal Procedure. The posting is here, and the filing deadline is Friday, December 8, 2017.

Supreme Court of Mississippi Seeks Comments on Proposed Appellate Mediation Rule
The Supreme Court of Mississippi’s Rules Committee on Civil Practice and Procedure is seeking comments on a proposed appellate mediation rule. The posting is here, and the filing deadline is November 27, 2017.

Petition to Amend the Mississippi Uniform Rules of Procedure for Justice Court to Improve the Uniformity, Efficiency, and Clarity of Justice Court Procedures 
The Supreme Court of Mississippi’s Rules Committee on Civil Practice and Procedure is seeking comments on the Mississippi Justice Court Judges Association’s Petition to Amend the Mississippi Uniform Rules of Procedure for Justice Court to Improve the Uniformity, Efficiency, and Clarity of Justice Court Procedures. The posting is here, and the filing deadline is November 28, 2017.

Petition to Amend Certain Rules of the Mississippi Uniform Rules of Youth Court Practice to Conform with Recent Legislative Changes and to Clarify Procedures 
The Supreme Court of Mississippi’s Rules Committee on Civil Practice and Procedure is seeking comments on the Mississippi Council of Youth Court Judges’ Petition to Amend Certain Rules of the Mississippi Uniform Rules of Youth Court Practice to Conform with Recent Legislative Changes and to Clarify Procedures. The posting is here, and the filing deadline is November 29, 2017.

Lots of Judge Openings

According to the Miss. Bar email newsletter:

Judicial Selection Advisory Committee Seeks Applicants for a Jones County County and Youth Court Judge
Judge Gaylon Harper has announced his resignation effective December 31, 2017 from his position as Jones County County and Youth Court Judge.  All persons who desire to be considered by the Governor for appointment to this position should submit their resume or other relevant material to the Governor’s Judicial Advisory Selection Committee by mailing same to William L. Smith, PO Box 22587, Jackson, MS 39225 or electronically to bsmith@balch.com  The deadline for applying is November 27, 2017.

Judicial Selection Advisory Committee Seeks Applicants for a Judge in the First Chancery Court District
Judge T.K. Moffett has announced his resignation effective January 31, 2018 from his position as Chancellor for the First Chancery Court District.  All persons who desire to be considered by the Governor for appointment to this position should submit their resume or other relevant material to the Governor’s Judicial Advisory Selection Committee by mailing same to William L. Smith, PO Box 22587, Jackson, MS 39225 or electronically to bsmith@balch.com  The deadline for applying is November 27, 2017.

Court of Appeals at MSU on November 15th

Court of Appeals to visit Mississippi State University on Nov. 15

October 30, 2017

The Mississippi Court of Appeals will convene on the campus of Mississippi State University Nov. 15 to hear oral arguments. A three-judge panel will hold court in the Hunter Henry Center at 1 p.m. and 2:30 p.m.

The Jackson-based court hears a few cases on college campuses each year as part of its Court on the Road program, which educates students and the general public about the operation of appellate courts. Judges talk with students after the oral arguments and answer questions, although they don’t talk about the pending cases.

Court of Appeals Judge Jack Wilson said, “This will be a good opportunity for college students and others to get a sense of how our court operates and see how proceedings at the appellate level are different from what occurs in a trial court. The role of an appellate court is to ensure that trial courts apply the law fairly and correctly, and these two arguments should give the audience a window into how our Court goes about doing that.”

Oral arguments will be heard in two cases. Oral arguments are scheduled for 1 p.m. and 2:30 p.m. People wishing to watch the oral arguments are asked to be in their seats 15 minutes before each proceeding is scheduled to begin.

The 1 p.m. oral argument is in the civil appeal of Beverly Irwin-Giles v. Panola County, cause number 2016-CA-1637-COA. Irwin-Giles sued Panola County over the death of her parents, Lynda and William Irwin, who died July 21, 2015, in a car crash at an intersection on Mississippi Highway 6. A pickup truck driven by a Panola County sheriff’s deputy collided with the car driven by Lynda Irwin. A judge of the Panola County Circuit Court granted summary judgment in favor of Panola County. Irwin-Giles appealed.

Irwin-Giles is represented by the Clarksdale law firm of Chapman, Lewis and Swan. Panola County is represented by attorney David D. O’Donnell of the law firm of Clayton O’Donnell of Oxford.

Irwin-Giles’ brief is at this link:
https://courts.ms.gov/newsite2/appellatecourts/docket/sendPDF.phpf=dc00001_live..16.CA.1637.83115.0.pdf&c=85475&a=N&s=2

The brief filed on behalf of Panola County is at this link:

https://courts.ms.gov/newsite2/appellatecourts/docket/sendPDF.phpf=dc00001_live..16.CA.1637.85575.0.pdf&c=85475&a=N&s=2

The 2:30 p.m. oral argument is a criminal appeal in the case of Adam Chism v. State of Mississippi, cause number 2016-KA-1404-COA. Chism was convicted of house burglary in Hinds County Circuit Court. The incident occurred Jan. 16, 2016. He was sentenced as a habitual offender to life in prison without parole.

Chism is represented by law students of the University of Mississippi School of Law Criminal Appeals Clinic under the supervision of Professor Phillip W. Broadhead. Special Assistant Attorney General Joseph Hemleben represents the state.

Chism’s brief is at this link:

https://courts.ms.gov/newsite2/appellatecourts/docket/sendPDF.php?f=dc00001_live.COA.16.KA.1404.83007.0.pdf&c=85198&a=N&s=2

The Attorney General’s brief is at this link:

https://courts.ms.gov/newsite2/appellatecourts/docket/sendPDF.php?f=dc00001_live.COA.16.KA.1404.89382.0.pdf&c=85198&a=N&s=2

The oral arguments will not be broadcast via the court’s Internet website, since the Court of Appeals is convening special sessions away from its camera-equipped courtroom.

Any media organization which may wish to photograph or videotape the arguments must file a Camera Coverage Notice. Camera Coverage Notices should be directed to Clerk of the Court Muriel Ellis, fax 601-359-2407, and to Assistant Court Administrator Camille Evans, fax 601-576-4708. The Camera Coverage Notice form is at https://courts.ms.gov/forms/camnotice.pdf.

Photographers and videographers must be familiar with and follow the Rules for Electronic and Photographic Coverage of Judicial Proceedings. The camera coverage rules are available at

http://courts.ms.gov/rules/msrulesofcourt/rules_electronicphotographic_coverage.pdf.

Petition to Amend Code of Judicial Conduct granted (sort of)

Over 18 months ago, I filed a Petition to Amend the Code of Judicial Conduct.  My hope was to add a due process requirement to the Special Committee. I asked the Supreme Court to add a clause that read “Immediately provide the subject of the complaint notice and an opportunity to respond in a manner specified by the Special Committee.”  Reading the objecting statements, I’m not sure why my language was not adopted.  It’s certainly better than what was adopted. Oh well.  Yes, I would prefer that they do away with this awful committee.

Yesterday, the Supreme Court granted the petition in part.  This is the Supreme Court’s ruling (without the strike through):

Canon 5F(3) – Mississippi Code of Judicial Conduct

(3) Upon receipt of a written allegation indicating a violation by a judicial candidate of any provision of Canon 5 during the course of a campaign for judicial office, or indicating actions by any independent person(s), committee(s) or organization(s) which are contrary to the limitations placed upon candidates by Canon 5, the Commission staff shall immediately forward a copy of the allegation by e-mail, and U.S. mail to the Special Committee members and the judicial candidate, and said Committee shall:

(a) in a manner which comports with due process, provide the candidate with a list of provisions he or she is accused of violating, and provide the candidate an opportunity to respond;

(b) seek, from the informing party and/or the subject of the information, such further information on the allegations as it deems necessary;

(c) conduct such additional investigation as the Committee may deem necessary;

(d) determine whether the allegations warrant speedy intervention and, if so, immediately issue a confidential cease-and-desist request to the candidate and/or organization or independent committee or organization believed to be engaging in unethical and/or unfair campaign practices. If the Committee determines that the unethical and/or unfair campaign practice is of a serious and damaging nature, the Committee may, in its discretion, disregard the issuance of a cease-and-desist request and immediately take action authorized by the provisions of paragraph (3)(ed)(i) and (ii), hereafter described. If the allegations of the complaint do not warrant intervention, the Committee shall dismiss the same and so notify the complaining party.

(e) If a cease-and-desist request is disregarded or if the unethical or unfair campaign practices otherwise continue, the Committee is further authorized:

(i) to immediately release to all appropriate media outlets, as well as the reporting party and the person and/or organization against whom the information is submitted, a public statement setting out the violations believed to exist, or, in the case of independent persons, committees or organizations, the actions by an independent person, committee or organization which are contrary to the limitations placed upon candidates by Canon 5. In the event that the violations or actions have continued after the imposition of the cease and desist request, the media release shall also include a statement that the candidate and/or organization or independent person, committee or organization has failed to honor the cease-and-desist request, and

(ii) to refer the matter to the Commission on Judicial Performance or to any other appropriate regulatory or enforcement authority for such action as may be appropriate under the applicable rules.

. . . .

The Ruling struck this paragraph from the Comment:

This Section 5F does not appear in the ABA Model Code and was added with the adoption of this Section 5. Similar provisions have been adopted for South Dakota and Georgia. See South Dakota Rules of Commission on Judicial Qualifications, Rule IV and Rules of Georgia Judicial Qualification Commission, Rule 27. In Weaver v. Bonner, 114 F. Supp. 2d 1337 (N.D. Ga. 2000), a constitutional challenge to the Georgia rule was rejected, the court saying the government may “participate in the marketplace of ideas” and “contribute its own views to those of the other speakers. Weaver at 1345, quoting Muir v. Ala. Educ. Television Comm’n, 688 F. 2d 1033, 1037 (5th Cir. 1982). In Weaver, the court also specifically found the procedures adequate to satisfy due process requirement.

Then, the Supreme Court let us behind the curtain to see what they were arguing about.  Apparently, they all agree that the old Rule did not have a due process element, and that was wrong.  But three of the justices shared with us their losing argument.  I find this argument to be very odd, but I’ll refrain from commenting further right now.

 

WALLER, CHIEF JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶1. I respectfully disagree with the amendment to Canon 5F(3) to require notice to the candidate “in a manner which comports with due process.” The Campaign Committee is a body of volunteers who conduct a nonjudicial investigation with no authority to impose sanctions or punishment. This is not a judicial process, and the requirement of service “which comports with due process” is both overly burdensome and vague. I agree that the person subject to the complaint must have notice of the complaint and the identity of the party who filed it and must have the opportunity to respond. But no more than this should be required for an administrative proceeding such as this. A civil action is commenced simply by serving a complaint and summons upon the opposing party pursuant to the Rules of Civil Procedure. Is this the “due process” required here? No other rule of judicial procedure uses the term “due process” to describe the manner of notice to a party, and this proposal does not give any guidance to the Committee as to how this requirement can be satisfied. I do not believe we should subject the Bar, the candidates, and the volunteer Committee members to these overly burdensome and unnecessary requirements.
KITCHENS, P.J., AND KING, J., JOIN THIS SEPARATE WRITTEN STATEMENT.

KING, JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶2. I agree that Canon 5F(3) of the Code of Judicial Conduct should be amended to clarify that the subject of any campaign complaint shall be given notice and an opportunity to respond to the substance of that complaint. However, given the purpose of Canon 5F, I disagree with the amendment adopted by the majority. The amendment adopted by the majority is overly broad, unnecessarily restrictive, and inconsistent with the duties assigned to the Special Committee.

¶3. Under Canon 5F, the Special Committee is appointed in judicial-election years to address “the propriety of any act or conduct by a judicial candidate, a candidate’s campaign organization or an independent person, committee or organization conducting activities which impact on the election.” Canon 5F(2). Section 5F(4) provides that the work of the Committee shall be informal and nonadversarial, but requires that its work be done “as soon as possible taking into consideration the exigencies of the circumstances.” The amendment adopted by the majority eliminates the Special Committee’s ability to respond expeditiously to any last-minute complaint.

¶4. Section 5F(5) makes abundantly clear that the Special Committee is not a disciplinary body and lacks any authority to “institute disciplinary action against any candidate for judicial office.” Notwithstanding the language of Canon 5F, the amendment adopted by the majority incorrectly suggests: 1) that this applies only to candidates for judicial office, and 2) that it imposes disciplinary actions upon judicial candidates. The majority concerns itself more with due process in a nondisciplinary judicial-election matter than it does in actual disciplinary actions against criminal defendants, whose liberty or very life is at risk.

¶5. Given the purpose and nature of the work of the Special Committee, the right to notice of and an opportunity to respond to a complaint may be clarified by simply inserting a new 5F(3)(a), reading: “in a manner determined by the Committee, provide the candidate, person, committee or organization against whom a complaint has been filed with notice and an opportunity to respond.”

¶6. For the foregoing reasons, I object to the order amending Canon 5F(3) of the Code of Judicial Conduct.

WALLER, C.J., AND KITCHENS, P.J., JOIN THIS SEPARATE WRITTEN STATEMENT.

Hinds County Attorney special election versus the Code of Judicial Conduct

I must admit that I’ve got some concerns with the Code of Judicial Conduct, especially as it relates to judicial elections.  I have a petition to amend the Code of Judicial Conduct that has been pending with the Supreme Court for over a year and a half.

I thought it was pretty clear that if a judge runs for a non-judicial office, then the judge must immediately resign.  Canon 5(A)(2) says:

A judge shall resign from judicial office upon becoming a candidate either in a party primary or in a general election for a non-judicial office, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so.

The Clarion Ledger article quoted below says that the Commission on Judicial Performance will take no action against the judge who is running for the County Attorney position.  I hope we get more from the Commission about this decision.  This is a decision that must be consistently applied to all judges, or it’s not a rule any longer.

I guess that since this is a “special” election, this provision does not apply.  Or, it could be that judges may run for Governor or Attorney General without having to resign their office. Actually, it’s a good question if a Judge would have to resign to run for Attorney General – the office of Attorney General is a judicial office under the Mississippi Constitution, just like the Board of Supervisors.

The Clarion Ledger article reports:

A Jackson municipal judge says Mississippi’s judicial watchdog agency has voted to take no action against him for not resigning from office while running for the upcoming, non-judicial job of Hinds County attorney in a November special election.

The Commission on Judicial Performance met Friday, but voted to take no adverse action against him, Gerald Mumford said in a statement.

Commission on Judicial Performance Executive Director Darlene Ballard said Monday that commission actions are confidential until released by the state Supreme Court. Ballard would only confirm that the commission met Friday.

Late last month, Ballard sent  letters to Mumford and Byram Municipal Judge Malcolm Harrison, who is also running for the Hinds County seat, saying they were in violation of Judicial Canon 5(2).

Harrison said he resigned his position when he was made aware he was possibly in violation of the judicial code.

Mumford said earlier this month that he had no plans to resign and was willing to take the case to the state Supreme Court.

Mumford said he believes the code applies only to party primaries and general elections, not a special election.

Harrison, Mumford and Martin Perkins are running in the Nov. 7 special election for Hinds County attorney.

Ballard has said any judge should resign his or her position if running for a nonjudicial office in a party primary or general election. She said the Mississippi Supreme Court in an opinion said the code applied to all elections, including special elections.

Ballard said the commission can take action against a judge who violates the code, which could include a reprimand and requiring an offender to repay any salary received from the time of the campaign to the election.

The 13th Juror is Dead

I have written about the “thirteenth juror” standard of review when a trial or an appellate court considers a decision on a motion for new trial.  The Supreme Court has killed this standard, although at least two justices want to keep it.

The following are some excerpts from Justice Maxwell’s opinion:

¶1. Sitting as “thirteenth juror,” the Court of Appeals reversed Marlon Little’s convictions and remanded for a new trial, finding the weight of the evidence preponderated heavily against the verdict. We granted certiorari to clarify the appellate court’s role when  reviewing a motion for new trial. Despite this Court’s prior language suggesting otherwise, neither this Court nor the Court of Appeals assumes the role of juror on appeal. We do not reweigh evidence. We do not assess the witnesses’ credibility. And we do not resolve conflicts between evidence. Those decisions belong solely to the jury. Our role as appellate court is to view the evidence in the light most favorable to the verdict and disturb the verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

. . .

¶15. We take this opportunity to clarify that neither this Court nor the Court of Appeals ever acts as “juror” on direct appeal. “We sit as an appellate court, and as such are ill equipped to find facts.” Gavin v. State, 473 So. 2d 952, 955 (Miss. 1985). “[E]ven if  we wanted to be fact finders, our capacity for such is limited in that we have only a cold, printed record to review.” Id.

¶16. The concept of the appellate court acting as “thirteenth juror” was birthed in Bush. In that case, this Court sought to distinguish the standard of review for the denial of a motion for judgment notwithstanding the verdict, which challenges the sufficiency of the evidence, from the standard of review for the denial of a motion for a new trial, which challenges the weight of the evidence. Bush, 895 So. 2d at 843-45. In explaining the standard of review for the denial of a motion for a new trial, we borrowed language from Amiker v. Drugs For Less, Inc., 796 So. 2d 942 (Miss. 2000):
[T]he court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.

Bush, 895 So. 2d at 844 (quoting Amiker, 796 So. 2d at 947).

¶17. But as Judge Roberts pointed out in his special concurrence in Hughes, “[i]n Amiker, the central issue was whether a successor judge could vacate his predecessor’s order  granting a new trial.” Hughes, 43 So. 3d at 531 (citing Amiker, 796 So. 2d at 946) (Roberts, J., specially concurring). And this Court concluded the predecessor trial judge, who sat through trial and observed the witnesses first hand, was in a “superior position” to his successor, who only had “a cold, printed record of a case.” Amiker, 796 So. 2d at 947-48.

¶18. This conclusion was based on the longstanding “recogni[tion] that the trial judge is in the best position to view the trial.” Id. at 947. “The trial judge who hears the witnesses live, observes their demeanor and in general smells the smoke of the battle is by his very position far better equipped to make findings of fact which will have the reliability that  we need and desire.” Id. (quoting Gavin, 473 So. 2d at 955). By contrast, a successor judge, who enters the fray after the battle, is “in no better position than this Court to do what this Court does not do.” Id. at 948 (emphasis added). And what, according to Amiker, does this Court not do? “This Court justifiably refuses to review grants of a new trial based in part on the superior position of the trial court to decide such matters.” Id.

¶19. In now revisiting Amiker, we agree with Judge Roberts that the “thirteenth juror”  referred to the trial court—and the trial court alone. See Hughes, 43 So. 3d at 531-32 (Roberts, J., specially concurring). Thus, it was error in Bush to conflate our role as  appellate court with the trial court’s and to assume the role of “thirteenth juror” for  ourselves when reviewing the trial court’s grant or denial of a new trial. See Bush, 895  So. 2d at 844 n.2 (noting “when the trial court (and subsequently the appellate court) reviews a verdict that is alleged to be against the overwhelming weight of the evidence, this presents a distinctive situation which necessitates the court sitting as a ‘thirteenth juror’”).

¶20. To be clear, when reviewing a motion for new trial, neither this Court nor the Court of Appeals “sits as thirteenth juror.” Bush, 895 So. 2d at 844. We do not make  independent resolutions of conflicting evidence. See id. Nor do we reweigh the evidence or make witness-credibility determinations. Instead, “when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony.” Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980); see also Lenoir v. State, 222 So. 3d 273, 278 (Miss. 2017).

¶21. Our role as appellate court is to review the trial court’s decision to grant or deny a new trial for an abuse of discretion. See Amiker, 796 So. 2d at 948 (citing Dorr v. Watson, 28 Miss. 383, 395 (1854) (“The granting a new trial rests in a great measure upon the sound discretion of the court below, to be exercised under all the circumstances of the case with reference to settled legal rules as well as the justice of the particular case. If a  new trial be refused, a strong case must be shown to authorize the appellate court to say  that it was error; and so, if it be granted, it must be manifest that it was improperly granted.”)). In carrying out this task, we weigh the evidence in the light most favorable to the verdict, “only disturb[ing] a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Lindsay v. State, 212 So. 3d 44, 45 (Miss. 2017) (quoting Bush, 895 So. 2d at 844).