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).

Lisa Howell named Lauderdale County Court Judge

Y’all Politics reported that Gov. Bryant Appoints Lisa Howell Lauderdale County Court Judge

JACKSON – Gov. Phil Bryant announced today that he has appointed Lisa Howell Lauderdale County Court judge.

Howell’s appointment is effective Nov. 1. She will replace Judge Frank M. Coleman, who is retiring Oct. 31. Howell joins Judge Veldore Young Graham on the county court bench. Howell’s post will appear on the ballot in November 2018.

“Lisa’s experience in private practice and as a prosecutor make her a very good fit for Lauderdale County Court judge,” Gov. Bryant said. “She has proven herself an outstanding public servant, and I am delighted she has accepted this appointment.”

Howell has served as assistant district attorney for the 10th Circuit Court District, which includes Lauderdale County, since 1995. Prior to that, she worked in private practice in Meridian.

“I am humbled by the amazing opportunity given to me by the governor,” Howell said. “It is my desire, working along with Judge Young Graham, to continue transforming our youth court and drug court into real solutions for the problems facing the most vulnerable among us.”

Howell earned a bachelor of arts degree from the University of Southern Mississippi in 1986, and a juris doctorate from Mississippi College School of Law in 1991. She is a 1982 graduate of Meridian High School.

She serves as welfare chairman of the Junior Auxiliary of Meridian and is a member of the Lauderdale County Bar Association and the National District Attorneys Association. Howell attends St. Paul’s Episcopal Church in Meridian.

I’ve known Lisa, well, a long time.  I think this is an outstanding choice.  Lisa has been a remarkable assistant district attorney.  Thank you Governor Bryant.

5th Circuit Ruling – NFLPA v. NFL – Judge Graves dissents

This is the Ezekiel Elliot case.  A three judge panel’s majority opinion ruled:

“When the NFLPA filed the complaint on August 31, 2017, the arbitrator had not yet issued his decision. Although the district court issued the injunction on September 8, 2017, and the arbitrator had previously issued his decision on September 5, 2017, jurisdiction depends on the facts as they exist when the complaint was filed. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1982). The district court, therefore, lacked subject matter jurisdiction when it issued the preliminary injunction.”

Judge Graves issued a dissent, which begins:

JAMES E. GRAVES, JR., Circuit Judge, dissenting:
This is a case about undisclosed information, uninformed decisions, and an arguably unfair process in determining whether Dallas Cowboys running back Ezekiel Elliott should be punished for allegations of domestic violence made by an accuser who was found not credible by the NFL’s lead investigator, who was then excluded from meetings with NFL Commissioner Roger Goodell. Because I conclude that the district court had subject matter jurisdiction, I respectfully dissent.

Top Ten Legal Writing Tips

Top Ten Legal Writing Tips

These are the basics of competent legal writing.

1. Why do I write? Litigators write to ask the court for action. Begin with a question, what do I the court to do? Write the order first, then it’s easy to write the motion and memorandum.

2. Who am I? Do I have a Masters in English from Harvard, or did I sleep through English class in high school. Don’t try to be someone you are not. Write at your level; where ever that is. But, always work to improve.

3. Who is my audience? Legal writing is for the judge. Make the judge’s job easier. Tell the judge what you want, and show the judge how to write the opinion. Be concise, be logical and be organized.

4. What is my subject? Know the facts. Know the law. Know the when to yield on less important issues.

5. Why should I get what I want? Authority. Cite one case that is directly on point. Never cite a case you have not read. Know your case. If there is a case that hurts your position, cite it and distinguish it.

6. Keep it simple. Avoid wordiness. Professor Strunk said, “a sentence should contain no unnecessary words, a paragraph no unnecessary sentences, for the same reason that a drawing should have no unnecessary lines and a machine no unnecessary parts.” Avoid: “Comes Now,” “to-wit,” “by and through counsel,” “in the instant case,” and many others.

7. Be candid. Be concise. Be clear. Watch your tone. Always be courteous and respectful. Avoid humor and sarcasm.

8. Learn the rules of good writing, then learn when and how to break them.

9. Spell-check is different than proofreading. The last thing you do before you submit your document – read it. If you wouldn’t say it, don’t write it.

10. Edit, edit, edit, edit, and edit.

“The harder I work, the luckier I am.” Unknown

“A blank sheet of paper is God’s way of telling us that it is not so easy to be God.” Anonymous