Chief Justice Bill Waller Jr. to retire January 31, 2019

Congratulations Mr. Chief Justice.  It was a pleasure to work with you.  I wish you the best in your retirement.

This is the Mississippi Supreme Court’s official press release.

Chief Justice William L. (Bill) Waller Jr. announced today that he will retire on January 31, 2019.

Retired Chancellor W. O. “Chet” Dillard

Chief Justice Waller said, “I have elected to tender my resignation and retire from public service effective January 31, 2019, completing more than 21 years of service on the Mississippi Supreme Court and 10 years as Chief Justice. It has been my highest privilege to be elected as a Justice of the Supreme Court and serve as Chief Justice of Mississippi.”

Chief Justice Waller was elected in November 1996 and took office in January 1998. He was re-elected in 2004 and 2012. He was a presiding justice for five years. He became Chief Justice in January 2009.

At age 66, he enjoys good health. “It’s just time,” he said.

The Governor will appoint a Justice to the District 1, Place 1 position on the court. The next election for the seat is in November 2020, and the next eight-year term will begin in January 2022. The position is one of two seats on the court with a 14-month delay between the election and the beginning of a new term.

Mississippi Code Section 9-3-11 says that the justice who has served longest on the court shall be Chief Justice. Presiding Justice Michael K. Randolph of Hattiesburg, who joined the court in April 2004, is the second longest serving justice on the court after Chief Justice Waller.

Upon retirement from the court, Chief Justice Waller plans to become a senior status judge and remain active in Access to Justice and other administration of justice endeavors. He would like to teach as an adjunct professor at the University of Mississippi School of Law and Mississippi College School of Law. He previously taught pretrial practice at both law schools.

He has been a champion of meaningful access to the courts for all people. At his urging, free family law clinics for the poor have been held in every chancery court district in the state, with the largest number held in June. More than 1,000 hours of free legal assistance were provided to more than 600 clients through the work of more than 330 attorneys.

His early priorities as Chief Justice included expanding drug courts to all 22 circuit court districts, which was accomplished in 2012. Drug courts have proven records of restoring sobriety, saving money on incarceration and reducing recidivism. At the end of FY 2018, there were 3,283 people enrolled in felony drug courts, saving the state millions of dollars in incarceration expenses. The 482 people who graduated from drug courts this past fiscal year are much more likely to successfully re-enter society than those released from the general prison population. Also during this past fiscal year, 57 drug-free babies were born to drug court participants, 122 parents regained custody of their children, 108 obtained GEDs and 943 became gainfully employed.

Chief Justice Waller has sought to bring about reforms in the administration of justice through legislation and rule changes. He led the adoption and development of the Mississippi Electronic Courts (MEC) e-filing system. The source code for the MEC system was secured from the U.S. Administrative Office of Courts without cost to the taxpayers, and Mississippi is today the only state authorized to use the program developed by the federal courts. All development and code modifications have been accomplished in-house. Today more than 5,400 attorneys are registered for MEC and are conducting court business via e-filing in 58 counties in chancery courts, 23 counties in circuit courts and in 11 county courts. By the end of January, more than 80 percent of the Mississippi population will be covered by MEC in chancery courts and 50 percent of the Mississippi population will be covered in circuit courts. Appellate e-filing began at the Mississippi Supreme Court and Mississippi Court of Appeals in 2014. In 2018, MEC began using servers in the Supreme Court Courthouse for processing and storage of trial and appellate court records, which was critical to support the secure, 24/7 operating environment required by court rules. Chief Justice Waller led efforts which gained legislative approval for the equipment and facility renovation.

Chief Justice Waller served as a member of the Criminal Rules Committee which, under the leadership of former Justice Ann Lamar, studied and prepared the Mississippi Rules of Criminal Procedure that were adopted unanimously by the Supreme Court. The new criminal rules went into effect in July 2017. For the first time in the history of the state, every aspect of criminal proceedings, from arrest to post-trial motions, was covered in one comprehensive set of rules.

He was principal architect of legislation which created the Office of Capital Post-Conviction Counsel, the Office of Indigent Appeals, and the Comprehensive Electronic Court System Fund that provides funding for MEC. Most recently, he provided leadership for the creation of a second county court judgeship for Lee County, primarily to address an overwhelming caseload in Youth Court. This was approved by the Lee County Board of Supervisors and adopted by the Legislature. He has supported funding for parent representation in Youth Court that has proven effective in reducing foster care placements.

Chief Justice Waller has worked to make sure that the Judiciary is adequately funded and staffed and has adequate facilities. He provided leadership to the passage by the Legislature of the historic Judicial Compensation Reform Act of 2012. This promoted judicial independence by requiring independent review of judicial compensation every four years. Additionally, the pay raise was funded from sources independent of general fund appropriations. He was a member of the Building Committee that oversaw the funding, placement and construction of the Mississippi Supreme Court Courthouse in the design inspired by former Chief Justice Lenore Prather. The Courthouse was dedicated in 2011with former U.S. Supreme Court Justice Antonin Scalia providing the keynote address at the dedication ceremony. Chief Justice Waller has spoken to local boards of supervisors to encourage courthouse upkeep, renovations and security.

One of the highlights of his tenure as Chief Justice was joining the Mississippi Bar and the two law schools in the state to commemorate the Bicentennial of Mississippi’s Judiciary and Legal Profession on Sept. 27, 2017. This included the participation of the Chief Justice of the United States, John G. Roberts, Jr., the third U.S. Chief Justice to visit Mississippi since statehood.

He is the eldest son of the late Gov. Bill Waller, Sr., and the late Carroll Overton Waller. He was in private law practice in the firm of Waller and Waller in Jackson from 1977 to January 1998. He served as municipal judge for the city of Jackson from January 1995 until July 1996.

A graduate of the U.S. Army War College, he completed 30 years of service in the Mississippi Army National Guard, attaining the rank of Brigadier General while serving as Commander of the 66th Troop Command.

He is a native of Jackson, an Eagle Scout and a graduate of Murrah High School. He received his undergraduate degree in general business with emphasis in finance, tax and insurance from Mississippi State University in 1974. He received his law degree from the University of Mississippi School of Law in 1977. Mississippi College School of Law conferred an honorary Doctor of Law degree upon him in 2012.

Chief Justice Waller and his wife, Charlotte, have three adult children. They are members of First Baptist Church Jackson.

Special Committee Opinion 2018-25

2018-25 Opinion

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

The Complaint alleges that campaign signs for Candidate G fail to have the required disclaimer.

Candidate G responded that he had been made aware of the missing disclaimer earlier this month, and his Committee printed stickers with the verbiage “Paid for the Committee to Elect Stan G and approved by the candidate” and placed them on approximately 600 signs remaining in our inventory. Candidate G also informed the Committee that he sent staff into the field to locate any signs that may not have had the required verbiage when they were previously placed. Candidate G admitted that he could not be “100% certain that every single sign with missing verbiage was located, but best efforts were made.” He also claims that the sign pictured in the email, was a photograph taken in his driveway, and it had a sticker with the disclaimer on the opposite side. Candidate G also added that he was not aware of a “regulation that requires the verbiage to be on both sides of the sign, but please correct me if I am mistaken.”

There are two statutes that are applicable. First, Mississippi Code Annotated section 23-15-1025 provides:

Distribution of campaign materials.
If any material is distributed by a judicial candidate or his campaign committee or any other person or entity, or at the request of the candidate, his campaign committee or any other person or entity distributing the material shall state that it is distributed by the candidate or that it is being distributed with the candidate’s approval. All such material shall conspicuously identify who has prepared the material and who is distributing the material. The identifying language shall state whether or not the material has been submitted to and approved by the candidate. If the candidate has not approved the material, the material shall so state. . . .

Second, Mississippi Code Annotated section 23-15-897(2)(a) provides “[n]o candidate, political committee or other person shall publish, or knowingly cause to be published, any campaign materials unless it contains the following information [t]he name of the candidate along with a statement that the message is approved by the candidate.” . . .

The Special Committee concludes that it does not have sufficient evidence to determine whether Candidate G or his Committee has committed a violation of either of the cited statutes. The Special Committee has determined that Candidate G and his Committee have made a good faith effort to place the required disclaimer on every campaign sign. However, the Special Committee is of the opinion that section 23-15-1025 requires that “[a]ll such material shall conspicuously identify who has prepared the material and who is distributing the material.” This language requires that the disclaimer be on each side of a sign that has printed campaign related material. The Special Committee instructs Candidate G and his Committee to place the disclaimer on make a good faith effort to place the disclaimer on each campaign sign that has printed campaign material.

Also, in his response, Candidate G filed a complaint that his opponent was placing illegal signs in several cities that have ordinances that require no signs larger than 2 square feet in residentially zoned areas of the city limits. According to this complaint, Candidate F has signs of at least 18 square feet in residential areas of each of these cities.

In Opinion 2018-05, the Special Committee decided that the request for an opinion failed to include sufficient information to determine whether a candidate violated a law or committed an unethical or unfair campaign practice. The Special Committee noted that in Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015), the United States Supreme Court ruled unconstitutional a local sign ordinance that set time limits for display by political candidates. However, because of the lack of sufficient facts or information to determine whether Reed would apply to the sign ordinance referenced, the Special Committee declined to act on the request for an opinion.

Here, as in Opinion 2018-05, the Special Committee has decided that the complaint failed to include sufficient information to determine whether a candidate violated a law or committed an unethical or unfair campaign practice. Therefore, the Special Committee declines to act on this complaint.

________________________________________________________________________
This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct.

Any questions should be in writing and directed to:

Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277
Email: Ballard@judicialperformance.ms.gov

Special Committee Opinion 2018-24

2018-24 Opinion

The Special Committee on Judicial Election Campaign Intervention received a request for an opinion and complaint filed by judicial Candidate L against Candidate M.

In the complaint, Candidate L alleges that Candidate M, who is a part-time municipal court judge, has stated “I am the only candidate in the race who is a sitting judge,” and “I am the only sitting judge who is running for this position.” These statements were reportedly made:

1. In a campaign commercial (that is currently airing on television stations and is also linked to Candidate M’s Campaign Facebook page);

2. In a newspaper interview (see _______ Article: Retirements draw packed field in Chancery __, dated October 22, 2018); and

3. In a speech to a jury venire on October 15, 2018.

Candidate L alleges that this statement is misleading because she currently serves as Special Master for Commitments in Chancery Court and a Youth Court Referee, and has served in this position for more than 9 years. Candidate L argues that her positions are judicial roles within the chancery court, and the Special Committee’s 2018-06 opinion supports her position. Thus, Candidate L argues that the statement is factually inaccurate and a violation of Canon 5A(3)(d)(iii).

In response, Candidate M asserts that the statement “only sitting judge” is correct, and it has not been used to intentionally mislead in violation of Canon 5A(3)(d)(iii). M has held the position of municipal judge for nine years. He asserts he is “currently the only sitting Judge running.” He argues that his statements are supported by Special Committee opinions 2018-17, 2018-11, and 2018-06, which cites previous opinions 2006-02, 2014-001 and Mississippi Code Annotated sections 43-21-107 and -111 for the statutory authority of a Youth Court Referee.

Canon 5A(3)(d)(iii) provides that a candidate for judicial office shall not “knowingly misrepresent the . . . qualifications, present position or other fact concerning the candidate or an opponent.” Mississippi Code Annotated section 41-21-61(a) defines “Chancellor as a chancellor or special master” for mental health/treatment commitments. Because Candidate L serves as a Special Master for mental health/treatment commitments, under section 41-21-61(a), she may be considered to be a “judge,” and she may use the term “judge” in this campaign. The Special Committee declines to find that Candidate M “knowingly misrepresent[ed]” Candidate L’s qualifications or present position. However, based on this opinion, the Special Committee instructs Candidate M to no longer claim to be the “only sitting judge” in the campaign.

________________________________________________________________________

This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct.

Any questions should be in writing and directed to:

Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277
Email: Ballard@judicialperformance.ms.gov

Special Committee Opinion 2018-23

2018-23 Opinion

The Special Committee on Judicial Election Campaign Intervention received a complaint filed by Candidate P.

Candidate P has provided a document that purports to be the “Official Sample Democratic Ballot – Hinds County – November 6, 2018.” (A copy of the sample ballot is attached as Exhibit “A”.) The sample ballot marks the preferred candidates for the elections for Senate, House of Representatives, and “Nonpartisan Judicial Races.” The sample ballot also indicates that it was “Paid for by Democratic Candidates,” but does not identify who paid to print or distribute the material.

Candidate P complains that this “official sample ballot” is not in compliance with Mississippi election rules. She argues that the sample ballot constitutes “an alignment with the Democratic party as opposed to an endorsement.” Candidate P also argues that this sample ballot violates various election laws.

In Opinion 2018-12, the Special Committee issued an opinion that determined it was permissible for a non-judicial candidate from another election to endorse a judicial candidate. Mississippi Code Annotated section 23-15-976 provides:

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation. The Legislature finds that in order to ensure that campaigns for nonpartisan judicial office remain nonpartisan and without any connection to a political party, political parties and any committee or political committee affiliated with a political party shall not engage in fund-raising on behalf of a candidate or officeholder of a nonpartisan judicial office, nor shall a political party or any committee or political committee affiliated with a political party make any contribution to a candidate for nonpartisan judicial office or the political committee of a candidate for nonpartisan judicial office, nor shall a political party or any committee or political committee affiliated with a political party publicly endorse any candidate for nonpartisan judicial office. No candidate or candidate’s political committee for nonpartisan judicial office shall accept a contribution from a political party or any committee or political committee affiliated with a political party.

In Mississippi Republican Party v. Musgrove, 3:02CV1578WS (S.D. Miss. 2002), the Mississippi Republican Party State Executive Committee brought a declaratory judgment action against the State of Mississippi to declare that Mississippi’s statutory prohibition on political parties endorsing or contributing to the campaigns of judicial candidates violates the freedom of political speech guaranteed by the United States Constitution and the Mississippi Constitution of 1890. Judge Henry Wingate ruled:

Mississippi Code Annotated§ 23-15-976 . . . with the exception of the first sentence stating “[a] judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation,” is hereby declared volative of the First and Fourteenth Amendments to the Constitution of the United States.

Based on this ruling, the Special Committee is of the opinion that non-judicial candidates and political parties may endorse judicial candidates.

The Special Committee, however, has reviewed the “Official Sample Democratic Ballot” that was submitted and finds that there may be violations of Mississippi’s campaign laws.

First, if any judicial candidate or the candidate’s committee, pays for the printing or distribution of this “Official Sample Democratic Ballot,” the Special Committee has determined that the judicial candidate and the candidate’s committee would be in violation of Mississippi Code Annotated § 23-15-1025. This statute, titled “Distribution of campaign materials,” provides:

If any material is distributed by a judicial candidate or his campaign committee or any other person or entity, or at the request of the candidate, his campaign committee or any other person or entity distributing the material shall state that it is distributed by the candidate or that it is being distributed with the candidate’s approval. All such material shall conspicuously identify who has prepared the material and who is distributing the material. The identifying language shall state whether or not the material has been submitted to and approved by the candidate. If the candidate has not approved the material, the material shall so state. The identity of organizations or committees shall state the names of all officers of the organizations or committees. Any person, who violates the provisions of this section, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of One Thousand Dollars ($ 1,000.00) or by imprisonment for six (6) months or both fine and imprisonment.

Second, the Special Committee has determined that the “Official Sample Democratic Ballot” is considered to be campaign materials and must have a disclosure as required by Mississippi Election laws. Specifically, Mississippi Code Annotated § 23-15-897(2), titled “Certain information to be included in campaign materials . . .,” provides:

No candidate, political committee or other person shall publish, or knowingly cause to be published, any campaign materials unless it contains the following information:

(a) The name of the candidate along with a statement that the message is approved by the candidate; or

(b) If the message has not been approved by a specific candidate, the name of the person, political committee or organization paying for the publication of the message; or

(c) If the message has not been approved by the candidate and no person, political committee or organization is identified as having paid for the publication, the entity producing the campaign materials must be identified.

As a result, the Special Committee is of the opinion that the “Official Sample Democratic Ballot” is in violation of section 23-15-897(2) because it does not contain the required disclosure.

Since the Special Committee has determined that the “Official Sample Democratic Ballot” violates sections 23-15-897(2) and 23-15-1025, the Special Committee orders that any person, committee, political party or organization cease and desist the distribution of the “Official Sample Democratic Ballot.”

The Special Committee also finds that any person, committee, political party or organization who has paid for the printing or distribution of the “Official Sample Democratic Ballot” also provides a financial benefit for the judicial candidates that are indicated to be a preferred candidates. This expenditure may be subject to the limitation on contributions under Mississippi Code Annotated § 23-15-1021 and such expenditure should be disclosed as required by Mississippi Code Annotated § 23-15-805.

Committee Member Everett T. Sanders recused from this opinion and did not participate.

________________________________________________________________________
This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct.

Any questions should be in writing and directed to:

Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277
Email: Ballard@judicialperformance.ms.gov

Special Committee Opinion 2018-22

2018-22 Opinion

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

The complaint alleged that Candidate N is in violation of Canon 5 of the Code of Judicial Conduct. Specifically, the complaint alleged that Candidate N showcases her father, Judge O, in a television commercial that is being aired on local television stations. In the ad, Judge O is shown in a photograph in his judicial robe and also presiding in the courtroom in his judicial robe. The complaint also alleges that Candidate N has used photographs of Judge O on her push cards and on her campaign website. The complaint also argued, based on information and belief, that Candidate N has requested or allowed Judge O to make phone calls on her behalf asking for donations to benefit her campaign as well as asking for sign placement locations. Further, based on information and belief, Candidate N has requested or has allowed Judge O to attend events with her while she is campaigning.

In response, Candidate N argues that the complaint was filed in bad faith. Candidate N alleges that the complaint was filed by a person who was indicted and had charges pending before Judge O. Candidate N also asserts that the person who filed the complaint is represented by an attorney who filed a motion for Judge O to recuse and supports her opponent. Candidate N argues that the complaint is insufficient and is nothing more than another attempt to harass.

Candidate N admits that Judge O is her father, and her push card includes a photograph with her parents, including Judge O. Further, there is a picture on Facebook of Candidate N and Judge O outside the Secretary of State’s Office on January 2, 2018, the morning she qualified to run. She alleges that this was a momentous event in her life and obviously one her parents wanted to be a part of. She contends that her father’s picture was included in the commercial as part of her education and history. Candidate N admits that the commercial includes a photograph of Judge O in his judicial robe and a courtroom scene where Judge O is seated on the bench but he is in the background and blurred. He does not speak nor does he say anything on Candidate N’s behalf.

Also, Candidate N states that Judge O has attended public community events. She claims that he has neither attended events with her nor campaigned at those events with her. She also claims that she does not know of any specific phone calls Judge O has made or anyone he has asked for donations.

There are several applicable provisions of the Code of Judicial Conduct.

First, Canon 5(A)(1)(b) provides that “a judge or a candidate for election to judicial office shall not . . . publicly endorse a candidate.” The Commentary states “Section 5A(1)(b) does not prohibit judges or judicial candidate from privately expressing their views on judicial candidates or other candidates for public office.”

Second, Canon 5(A)(3)(a) provides that “A candidate for a judicial office shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall encourage members of the candidate’s family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate.” The Commentary adds:

Although judicial candidates must encourage members of their families to adhere to the same standards of political conduct in support of the candidates that apply to the candidates, family members are free to participate in other political activity. Family members are not prohibited by this subsection from serving on the candidates’ campaign committees and otherwise actively involving themselves in the campaigns.

Third, Canon 5(C)(1) provides that “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 . . . . identify themselves as members of political parties, and contribute to political parties or organizations.” The Commentary adds that “Section 5C recognizes the distinction between appropriate political activities by judges and candidates subject to non-partisan election and those subject to partisan elections.”

Finally, Canon 5(D) provides that “[a] judge shall not engage in any political activity except as authorized under any other Section of this Code, on behalf of measures to improve the law, the legal system or the administration of justice, or as expressly authorized by law.”

The Special Committee finds as follows:

1. As to the allegations of the complaint directed to Judge O, the Special Committee finds that Judge O is an incumbent circuit court judge. As an incumbent judge, who is not up for election, Judge O is prohibited by Canon 5(A)(1)(b) from “publicly endors[ing] a candidate.” Canon 5(A)(3)(a) does not permit Judge O, as an incumbent judge, to publicly endorse another judicial candidate even though the candidate is a family member.

The Special Committee has determined that Judge O is prohibited under Canon 5(D) from engaging in any “political activity.” Although the complaint may allege a violation of the Code of Judicial Conduct by Judge O, the Special Committee is of the opinion that it has no jurisdiction as to Judge O. The Special Committee requests Judge O to take no further action that could be considered a “public endorsement” of a candidate, subject to the conduct permissible under Canon 5(A)(1)(b).

The Special Committee does not find sufficient evidence that supports the allegation that Judge O has made phone calls on Candidate N’s behalf asking for donations. Thus, the Special Committee dismisses this allegation.

The Special Committee does not find sufficient evidence that supports the allegation that Judge has violated the Code of Judicial Conduct by asking for placement of sign locations or for improperly attending events on Candidate N’s behalf. Thus, the Special Committee dismisses these allegations.

2. As to the allegations of the Complaint directed to Candidate N, the Special Committee is of the opinion that the Code of Judicial Conduct does not allow Judge O, as an incumbent judge, to engage in political activity. Candidate N and her Committee are prohibited, under Canon 5(A)(1)(b), from using Judge O’s photograph or image, while he wearing a judicial robe, in campaign materials. This would be an improper public endorsement by an incumbent judge. Therefore, the Special Committee instructs Candidate N and her Committee to cease and desist the use of Judge O’s photograph or image, while wearing a judicial robe, in any campaign materials.

The Special Committee is further of the opinion that Candidate N and her Committee may use Judge O’s photograph or image in campaign materials provided he is not wearing a judicial robe and there is no indication that he is an incumbent judge.

Committee Member Thomas A. Wicker recused from this opinion and did not participate.

________________________________________________________________________
This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct.

Any questions should be in writing and directed to:

Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277
Email: Ballard@judicialperformance.ms.gov

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.