Judicial Campaign Reforms – Part 1

The Clarion Ledger has several articles on elections.  Jerry Mitchell wrote an article on judicial elections on December 3, 2016.  Geoff Pender wrote an article on campaign finance reform on December 17, 2016.  I recommend you read these articles.

In Jerry Mitchell’s article, he quotes retired Justice George Carlson: “I was glad when the Legislature turned judicial races into nonpartisan contests, but we all know you can’t keep politics out of judicial elections. Any time you run for office, it’s political.”

I would only add that – you can’t keep politics out of judicial appointments either.

Recently, the Supreme Court asked that the candidates in the recent election provide suggestions for changes to the Mississippi Code of Judicial Conduct.  I did.  Over the next few days, I will post my suggestions and concerns.  Your comments are welcome.

______________

First, I have long had a desire to do away with the “Special Committee on Judicial Election Campaign Intervention.”

Canon 5(F) provides for the a Special Committee on Judicial Election Campaign Intervention (“Special Committee”).

In March, I filed a Petition to Amend the Mississippi Code of Judicial Conduct.  It can be found HERE.  I asked the Supreme Court to delete Canon 5(F) from the Mississippi Code of Judicial Conduct. As an alternative, if the Supreme Court decided to keep the Special Committee, I suggested several revisions.

  1.  Due Process.

The petition was based on the fact that Canon 5F does not provide for basic due process protections, i.e. notice or an opportunity to be heard.

The Comment to Canon 5F indicates that it was drafted by the Mississippi Supreme Court based on similar rules in South Dakota and Georgia. The Comment reads:

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..

The Rules that are cited in both South Dakota and Georgia ensure that the “subject of the complaint” receives notice of a complaint and an opportunity to be heard, i.e. due process protections. Mississippi’s rule omits this basic and fundamental protection.

Interestingly, Georgia voters decided to do away with the Georgia Judicial Qualification Commission in this year’s election.

2. Precedent and Consistency.

The annual reports of the Special Committee are available on the Supreme Court’s website HERE.

Over the years, the Special Committee has made a number of rulings and decisions. Some of these rulings were made public and some were not. Candidates in later campaigns are supposed to follow these rulings, but have no forum to contest the rulings and so they must either be followed or consciously violated. This presents a difficult dilemma for the candidate.

For example, in 2014, the Special Committee issued orders in certain elections that were ignored, and nothing happened to the candidate. In other years, the Special Committee has nit-picked over language used on signs and campaign materials. Some of these decisions make sense, and some do not. Regardless, the Special Committee should see that all candidates are treated the same and fairly.

For example, there has long been a question whether it is false and misleading for an appointed judge to include “re-elect” on his/her campaign materials. At least one court has said that it is neither false nor misleading for such to occur. There are many other examples of rulings that have not been consistently applied.

This year, at the meeting of candidates, the representatives of the Secretary of State and the Special Committee gave conflicting advice. The Special Committee gave other advice that was later rescinded.

This year’s Special Committee issued cease and desist orders to one candidate and did not provide the information or instruct other candidates of the decision or the subject of the decision.

The members of the committee are not sure of their obligations for conflicts or recusal. This year, one member of the Special Committee actively fund-raised for a candidate and the Special Committee issued a ruling against that candidate’s opponent. The member later resigned from the Committee but continued to actively fund-raise for other candidates. If the Special Committee members were bound by the Code of Judicial Conduct, the members would have been prohibited from actively participating in the election in which they had oversight.

3.  Alternatives if retained.

If the Supreme Court decides to keep the Special Committee, I asked that the Supreme Court consider ways that the Special Committee can operate with fairness to all candidates. Here are a few examples:

– provide for adequate due process rights for all candidates;
– advise candidates of any changes in the Committee’s membership;
– advise candidates whether they may communicate with Committee members;
– require regular and open meetings by the Committee;
– provide for a timely appeal or review procedure;
– allow a forum for past year’s decisions to be considered, challenged or changed;
– prohibit the issuance of private rulings;
– require the members to be former judges who have actually participated in contested elections;
– include standards of behavior for the members (i.e. whether they must follow the Code of Judicial Conduct) ; and
– consider whether some of the previous rulings of the Special Committee have been determined to be unconstitutional by other courts.

I also think it is important to note that there many states that provide for the election of judges. But, this idea of a “Special Committee” has not caught on with other states.

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