On June 29, 2017, the Supreme Court hand down list included this order:

No. 89-R-99013-SCT
IN RE: CODE OF JUDICIAL CONDUCT

ORDER

Before the Court en banc is the request to amend the Code of Judicial Conduct filed by Justice Court Judge Kenneth Adams. Judge Adams asks the Court to amend Canon 5A(2) of the Code of Judicial Conduct to allow justice court judges to become a candidate for a non-judicial office while maintaining their position as a justice court judge. Currently, Canon 5A(2) requires judges to “resign from judicial office upon becoming a candidate either in a party primary or in a general election for a non-judicial office …. ” After due consideration, the Court finds that the request to amend Canon 5A(2) shall be denied.

IT IS THEREFORE ORDERED that the request to amend the Code of Judicial Conduct filed by Justice Court Judge Kenneth Adams is hereby denied.

My problem is that I can’t find Judge Adams’ petition.  I went to the docket number 89-R-99013, and I do not find a copy of the “request”.

 

 

 

Non-Partisan Elections

In 1994, the Mississippi Legislature changed the way we select judges to a non-partisan election.  The Legislature passed MCA Section 23–15–973.

It shall be the duty of the judges of the circuit court to give a reasonable time and opportunity to the candidates for the office of judge of the Supreme Court, judges of the Court of Appeals, circuit judge and chancellor to address the people during court terms.  In order to give further and every possible emphasis to the fact that the said judicial offices are not political but are to be held without favor and with absolute impartiality as to all persons, and because of the jurisdiction conferred upon the courts by this chapter, the judges thereof should be as far removed as possible from any political affiliations or obligationsIt shall be unlawful for any candidate for any of the offices mentioned in this section to align himself with any candidate or candidates for any other office or with any political faction or any political party at any time during any primary or general election campaign.  Likewise it shall be unlawful for any candidate for any other office nominated or to be nominated at any primary election, wherein any candidate for any of the judicial offices in this section mentioned, is or are to be nominated, to align himself with any one or more of the candidates for said offices or to take any part whatever in any nomination for any one or more of said judicial offices, except to cast his individual vote.  Any candidate for any office, whether nominated with or without opposition, at any primary wherein a candidate for any one of the judicial offices herein mentioned is to be nominated who shall deliberately, knowingly and willfully violate the provisions of this section shall forfeit his nomination, or if elected at the following general election by virtue of said nomination, his election shall be void.

I can’t vouch for the legislative history behind this law, or why it was enacted.  I have heard some, who I call Mississippi political historians, say that the Democrat controlled legislature was concerned with the possible turn of Mississippi to a Republican controlled state, and they wanted to try to do what they could to keep a foothold in the favorable political selection of judges.  In other words, they didn’t want “Democrat” judges removed simply because they identified and had ran as a Democrat.

Governor Kirk Fordice, the first Republican Governor since Reconstruction, agreed with he theory that the removal of party labels would improve our judiciary.

As a result, we now have non-partisan judicial elections.

Partisan elections

Until about 1994, Mississippi elected judges in partisan elections.  Judge Southwick said this about partisan elections:

One of the reasons that partisan elections have fallen into disfavor is that party label is so incredibly important in these elections: “In partisan [judicial] races, the political party label may give most voters all the information they seek.” For reformers, this otherwise decisive piece of information must be kept from the voters to the point, as in Mississippi, of invalidating the election of someone who transgressed.

Leslie Southwick, The Least of Evils for Judicial Selection, 21 Miss. C.L. Rev. 209, 220 (2002)

That year, the Legislature reformed judicial elections.  The following statute was amended:

23–15–973. It shall be the duty of the judges of the circuit court to give a reasonable time and opportunity to the candidates for the office of judge of the Supreme Court, judges of the Court of Appeals, circuit judge and chancellor to address the people during court terms.  In order to give further and every possible emphasis to the fact that the said judicial offices are not political but are to be held without favor and with absolute impartiality as to all persons, and because of the jurisdiction conferred upon the courts by this chapter, the judges thereof should be as far removed as possible from any political affiliations or obligationsIt shall be unlawful for any candidate for any of the offices mentioned in this section to align himself with any candidate or candidates for any other office or with any political faction or any political party at any time during any primary or general election campaign.  Likewise it shall be unlawful for any candidate for any other office nominated or to be nominated at any primary election, wherein any candidate for any of the judicial offices in this section mentioned, is or are to be nominated, to align himself with any one or more of the candidates for said offices or to take any part whatever in any nomination for any one or more of said judicial offices, except to cast his individual vote.  Any candidate for any office, whether nominated with or without opposition, at any primary wherein a candidate for any one of the judicial offices herein mentioned is to be nominated who shall deliberately, knowingly and willfully violate the provisions of this section shall forfeit his nomination, or if elected at the following general election by virtue of said nomination, his election shall be void.

(Emphasis added).  This legislation also created the Court of Appeals.

Thus, in 1994, Mississippi ushered in non-partisan judicial elections.

 

 

 

 

Legislative Selection

In some states, the Legislature selects judges.

Judge Southwick wrote this:

The legislatures in Connecticut, South Carolina and Virginia choose their state’s judges. In South Carolina the process starts with nominations from a “merit system” commission from which the final choice is taken; without such input, the Virginia legislature also elects its judges. The Connecticut system has the effect of merit selection with legislative confirmation. However, the provision in the constitution states that judges “shall be nominated by the governor exclusively from candidates submitted by the judicial selection commission,” and then “Judges so nominated shall be appointed by the general assembly ….” Thus the legislative action is not called “confirmation.”
Legislative selection does not offer any obvious advantages over other systems. Political considerations are likely to operate just as vigorously on legislators as on governors. Though 174 Mississippi legislators could have almost that many views on who should be chosen as a judge, the final decision would likely be strongly affected by legislative alliances, traditional voting blocs, and the power of the leadership in each house to force a particular choice.
It would be fascinating to see that process in operation. Mississippi tried the procedure from 1817 until 1833. It does not appear sufficiently likely to reappear to merit further discussion.
Leslie Southwick, The Least of Evils for Judicial Selection, 21 Miss. C.L. Rev. 209, 218 (2002)
I hope that I don’t give the Legislature any ideas.  Regardless, I don’t see this happening anytime soon.
I talked to a South Carolina judge that I met at a seminar.  I asked what a lawyer had to do to be selected to be a judge.  He said, “run for and win a seat in the legislature.”

Appointments

Mississippi actually has a quasi appointed judiciary.  4 of the 9 Supreme Court Justices were initially appointed to the Court.  5 of the 10 Court of Appeals Judges were initially appointed.

Just this year, the Governor will have a chance to appoint at least three judges.

The Governor has a Judicial Selection Committee, chaired by an outstanding lawyer.  The members of the committee are also respected and outstanding lawyers.  The committee seems to closely examine and consider each applicant.  The committee also seems to  work hard to provide the Governor with a list of “qualified” candidates.

Judge Southwick noted this about this committee in previous administrations:

Though Mississippi has no experience with statutorily required “merit selection,” three governors did voluntarily employ a variant of the approach to fill vacancies. Starting in 1980 with Governor William Winter, a lawyer, and following through the administrations of Governors Bill Allain and Ray Mabus — also lawyers — a committee made recommendations to the governor. The system was not employed by either of the next two governors. Six justices were named: Lenore Prather (1982), James L. Robertson (1983), Mike Sullivan (1984), Joseph Zuccaro (1987), Joel Blass (1989), and Fred Banks (1990). What is striking about this list is that the first woman, a law school professor, an eminent senior member of the Bar, and the second black justice all came out of the committee procedures. The other two were experienced trial judges.

Leslie Southwick, The Least of Evils for Judicial Selection, 21 Miss. C.L. Rev. 209, 215 (2002)

I think it’s true of the committee under Governor Bryant.

I have not undertaken the exact statistical analysis to verify this number.  But, I’ll guess that half of Mississippi’s judges were first appointed to their position and then were reelected.

It’s not actually correct to say that Mississippi has an “elected” judiciary.  We have a judiciary that’s actually half appointed and half elected.

 

The Missouri Plan

Most people who discuss the selection of judges argue that the Missouri Plan is the best method of selection of judges.

The Missouri Plan provides for “merit” based appointments.  The initial appointment is by the Governor who is given a list of 3 – 5 “qualified candidates” by an independent and qualified committee.  Then, after a couple of years, the judge’s name is placed on the ballot for “a retention vote.”  If a majority of voters say yes, the judge is “retained” for a full term.

The National Judicial College article included this quote, “Appointment with retention … provides accountability and keeps money and politics out of judicial selection.”  It also gave the example of the three Iowa Supreme Court justices lost retention votes after they voted to legalize gay marriage.

The first consideration is whether “merit” selection brings actual “merit” to the selection process.  In his excellent law journal article on the subject, Judge Leslie Southwick said this about “merit” selection:

The potential for merit actually being the basis for selection exists in theory. The practice in the states has not been convincing.  A potential is that committee politics will substitute for electoral politics.  My first close encounter with Missouri appellate judges was at a judicial seminar not long after I was elected.  A small number of judges from around the country were meeting.  In the beginning rituals appropriate for such meetings, we each gave a few details about ourselves including how we were selected.  The first of the four Missouri appellate judges to perform this task said, with emphasis to make clear his sarcasm, that he was chosen through the merit system.  He laughed and said that merit being combined with knowing the right people were the essentials in his selection.  His Missouri colleagues agreed when giving their stories.

Leslie Southwick, The Least of Evils for Judicial Selection, 21 Miss. C.L. Rev. 209, 212–13 (2002)

 

Certainly, in theory, the Missouri Plan seems to bridge the divide that most are concerned with in judicial elections.  However, the Missouri Plan is not perfect.

Regardless, everytime I talk about the Missouri Plan I feel as if I have wasted some time in my life.  We Mississippian’s like our elections too much to ever change our laws to provide for this type of selection of judges.