What pearls of wisdom would you provide to appellate judges based on your experience?

First, you have to really enjoy the intellectual challenge that comes with a primarily academic practice of law. An appellate judge has to really enjoy thinking through difficult and thorny legal issues. Appellate judges also have to be good writers as well as good listeners, adept negotiators, and principled compromisers.

Unlike a trial judge, an appellate judge cannot make decisions by him- or herself. In our court, it takes at least two to tango when we sit on panels, so a judge sometimes has to convince others to agree with his or her legal analysis and the result that flows from the application of the facts of the case. In order to accomplish that goal, you have to have listened, heard, and taken into consideration your colleagues’ concerns; negotiated a way of addressing those concerns without undermining the legal analysis that you are promoting as consistent with your best understanding of the law; and then drafted language that evinces that compromise.

If you believe that you’re smarter or more right than everyone else on your court, or that your reasoning is so unassailable that your colleagues’ concerns are completely unfounded, you will be a very lonely dissenter in many, many cases and will have lost the opportunity to help develop the law in a meaningful way. Also, it is likely that you will have established relationships with your colleagues that make it difficult for them to hear and seriously consider your concerns about the analysis in opinions they may be authoring. So my pearl of wisdom is to remember the golden rule and treat your colleagues and their opinions as you would want them to treat you and yours.

I don’t know the source of this, and it’s not from me.  But I do agree.

 

Thank you Justice Ann Lamar

It was my pleasure to work with Justice Lamar.  I wish her the best in retirement.  Well done.

From the Court’s press release:

Justice Lamar, 64, of Senatobia, is the third woman to serve on the Mississippi Supreme Court.

Justice Lamar’s public service career spans 32 years. She served for five and one-half years as a circuit judge. As a circuit judge, she served the Conference of Circuit Court Judges as chair in 2006-2007, vice-chair in 2005-2006, and treasurer for three years. She presided over the 17th Circuit Drug Court.

Justice Lamar served for two years as district attorney and for nine years as an assistant district attorney. She was in private law practice with her husband, John Lamar, for eight years. Before she enrolled in law school, she worked as a court reporter for two years, and for four years as an administrative assistant in the Governor’s Office of Education and Training.

Justice Lamar serves as chair of the Supreme Court Rules Committee on Criminal Practice and Procedure, which since 2012 has devoted extensive study to proposed Rules of Criminal Procedure. She is former chair of the Board of Governors of the Mississippi Judicial College. In 2008, Justice Lamar served as co-chair of the Commission for the Study of Domestic Abuse Proceedings.

Justice Lamar is a member and past president of the William C. Keady American Inns of Court. She is a former member of the Board of Directors of the Mississippi Prosecutor’s Association. She was named Citizen of the Year by the Tate County Economic Development Foundation in 2010, and she was inducted as a Fellow of the Mississippi Bar Foundation in 2011. She received the Chief Justice Award as well as the Mississippi Bar’s Susie Blue Buchanan Award for commitment to the advancement of women in the field of law. The Mississippi Women Lawyers Association honored her with the Outstanding Woman Lawyer Award.

Judicial Campaign Reforms – Part 5

I suggest we consider the rules on contributions and expenses.

Currently, judicial candidates and their committees must file campaign finance reports in May, June, and July, then skip to October, November, and January. Also, contributions in January through March of the following year are not reported until January of the following year.

I suggest the Mississippi Code of Judicial Conduct require the following:

a. The filing of campaign finance reports on a monthly basis. The pre-election reports should continue to be required, and any contribution or expense incurred from the pre-election report until election day should be reported on a real-time or daily basis.

b. The disclosure of ALL campaign contributions and expenses.

c. The candidate and the committee should be required to attach a copy of all invoices and contracts entered, including employment agreements, consulting agreements, rental agreements, etc. This would require the disclosure of every payment by the campaign vendor to any other person or entity, and a description of the goods provided or services performed.

d. The candidate and committee should be required to maintain a bank account and run all contributions and expenditures through the bank account. The bank statements should also be attached to the monthly reports.

I also believe that the Mississippi Code of Judicial Conduct should prohibit campaign contributions and expenses that are not reported prior to the election.

This problem is recognized by Canon 5(C)(2), which provides: “A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums and other means not prohibited by law. 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.” The Comment adds that “Campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising, to the extent possible. . . .” (Emphasis added).

If you allow contributions after the election, contributors are likely to make contributions to the victor with the expectation of better treatment (i.e. partiality or bias) after the election has been decided. This could also be called “bring your gifts before the throne, or suffer” fund-raisers.

To ensure fair elections, the voters and public should know where the campaign contributions have come from before election day. The current system allows for a tremendous abuse of judicial power.

Next, I suggest that the Mississippi Code of Judicial Conduct should prohibit loans to judicial campaign committees.

The comment to Canon 5(C)(2) warns that “Campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising, to the extent possible. . . .” (Emphasis added). This comment is directly at odds with the practice of allowing loans to be repaid after the election.

No person or entity takes a loan out without having a plan for repayment. Neither a candidate nor his/her committee should be allowed to take out a loan that is to be repaid after the election. This is simply a way to hide contributors and mislead public.

I also believe that the Mississippi Code of Judicial Conduct should authorize the audit or examination of a candidate or committee’s campaign finances. It should also provide for the violations.

This function should be done by the Secretary of State’s office, with the hearing to be conducted by the Commission on Judicial Performance. There would need to be penalties in place to punish violators.

Finally, I suggest we revise the time period allowed for solicitation of contributions.

Judicial candidates may qualify to run for office on the first business day of the year in which the election is held. However, Canon 5(C)(2) provides that “A candidate’s committees shall not solicit or accept contributions and public support for the candidate’s campaign earlier than 60 days before the qualifying deadline or later than 120 days after the last election in which the candidate participates during the election year. . . .”

I suggest the following changes:

a. Start date. The Mississippi Code of Judicial Conduct uses the “qualifying deadline” to determine when a candidate’s committee may begin to solicit contributions. Although the Canon does not include expenses, it implies that expenses may not be incurred until that date also. It only makes sense to let the candidate’s committee to solicit contributions as soon as the candidate officially qualifies for the election.

b. End date. This Canon allows the committee to continue solicitation of funds for “120 days after the last election,” which is through March of the following year. The comment to Canon 5(C)(2) provides that “Campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising, to the extent possible. . . .” As I have suggested earlier, the committee should not be allowed to solicit funds after the election. At a minimum, the period for solicitation should end before the judge’s term begins. Fund-raising activities should end by December 31st after the election.

c. Expenses. This Canon only applies to the committee’s attempt to “solicit or accept contributions and public support.” This Canon does not restrict campaign expenditures. A judge’s campaign committee may continue to expend campaign funds for years after the election. There should be a deadline for campaign related “expenditures”.

d. Final Report. The candidate and committee’s financial activities should be limited to the calendar year of the election and the final report should be required to file a final report within 30 days of the end of the year.

e. Retention. The Mississippi Code of Judicial Conduct does not consider what a candidate’s committee can or must do with any funds remaining in the account. The Code should address whether funds may be retained for the next election or to whom the funds may be transferred.

If you have other suggestions, please feel free to comment here, email me or call me.

I also suggest that you send your thoughts and suggestion to the Supreme Court.

Merry Christmas

So Joseph also went up from the town of Nazareth in Galilee to Judea, to Bethlehem the town of David, because he belonged to the house and line of David. He went there to register with Mary, who was pledged to be married to him and was expecting a child. While they were there, the time came for the baby to be born, and she gave birth to her firstborn, a son. She wrapped him in cloths and placed him in a manger, because there was no guest room available for them.

And there were shepherds living out in the fields nearby, keeping watch over their flocks at night. An angel of the Lord appeared to them, and the glory of the Lord shone around them, and they were terrified. 10 But the angel said to them, “Do not be afraid. I bring you good news that will cause great joy for all the people. 11 Today in the town of David a Savior has been born to you; he is the Messiah, the Lord. 12 This will be a sign to you: You will find a baby wrapped in cloths and lying in a manger.”

13 Suddenly a great company of the heavenly host appeared with the angel, praising God and saying,

14 “Glory to God in the highest heaven,
    and on earth peace to those on whom his favor rests.”

Luke 2:4-14