Supreme Court wants to take control of Special Committee away from Governor, Lt. Governor and Speaker.

The Supreme Court has given notice for comments about a change to the Code of Judicial Conduct that would take the appointments to the Special Committee away from the Governor, Lt. Governor, and Speaker, and give these appointments to Presiding Justice Mike Randolph, Presiding Justice Jim Kitchens, Justice Josiah Coleman, and COA Chief Judge Joe Lee.  The Chief will retain his selection.

The fact that the Committee members have been selected by individual non-attorney elected officials was probably the only good part of this rule.  Last month, the Court admitted that the old rule was flawed and did not have basic due process protections.  Now, the Court want’s control of the Committee members.  Here is what has been put out for comment.

Comments should be filed with the Clerk of the Supreme Court, Gartin Justice Building, P.O. Box 249, Jackson, Mississippi 39205-0249. Deadline: Tuesday, December 5, 2017.

Canon 5F – Mississippi Code of Judicial Conduct

F. Special Committee–Proceedings and Authority. In every year in which an election is held for Supreme Court, Court of Appeals, chancery court, circuit court or county court judge in this state and at such other times as the Supreme Court may deem appropriate, a Special Committee on Judicial Election Campaign Intervention (“Special Committee”) shall be created whose responsibility shall be to issue advisory opinions and to deal expeditiously with allegations of ethical misconduct in campaigns for judicial office. The committee shall consist of five (5) members. The Chief Justice of the Supreme Court; the senior justices of Supreme Court Districts 1, 2, and 3, excluding the Chief Justice; and the Chief Judge of the Court of Appeals, the Governor, the Lieutenant Governor, the Speaker of the House of Representatives of the Mississippi Legislature and the chair of the Commission on Judicial Performance (Commission) shall each appoint one member. Those appointed by the Chief Justice, the Governor and the chair of the Commission All members shall be attorneys licensed to practice in the state. No person shall be appointed to serve as a member of a Special Committee for the year in which such person is a candidate for judicial office. Should the Chief Justice of the Supreme Court expect to be a candidate for judicial office during the year for which a Special Committee is to be appointed the Chief Justice shall declare such expectation, and in such event, the appointment which otherwise would have been made by the Chief Justice shall be made by the next senior justice of the Supreme Court who is not otherwise charged with appointing authority under this Canon and not seeking judicial office in such year. Should a senior justice of Supreme Court Districts 1, 2, or 3, excluding the Chief Justice, expect to be a candidate for judicial office during such a year, the next senior justice of the same Supreme Court District who is not otherwise charged with appointing authority and is not seeking judicial office shall make the appointment. Likewise, should the Chief Judge of the Court of Appeals expect to be a candidate for judicial office during such a year, the next senior judge of the Court of Appeals who is not seeking judicial office shall make the appointment. Likewise, should the Governor, Lieutenant Governor, Speaker of the House of Representatives or chair of the Commission expect to seek judicial office during such year, that official shall declare such expectation, and the appointment which otherwise would have been made by such appointing authority shall be made, respectively: by the Lieutenant Governor if the Governor expects to seek such an office; by the President Pro Tem of the Senate if the Lieutenant Governor expects to seek such an office; by the Speaker Pro Tem of the House of Representatives if the Speaker expects to seek such an office; and by the vice-chair of the Commission if the chair expects to seek such an office. Any action taken by the Special Committee shall require a majority vote. Each Special Committee shall be appointed no later than March 1 February 1 in the year of their service, and it shall continue in existence for ninety (90) days following such judicial elections or for so long thereafter as is necessary to consider matters submitted to it within such time. The Commission shall provide administrative support to the Special Committee. Should any appointing authority fail to make an appointment, three members shall constitute a sufficient number to conduct the business of the Special Committee. The objective of the Special Committee shall be to alleviate unethical and unfair campaign practices in judicial elections, and to that end, the Special Committee shall have the following authority: . . .

Lots of Rules out for Comment

Supreme Court of Mississippi Seeks Comments on Proposed Revisions to the Mississippi Rules of Criminal Procedure
The Supreme Court’s Rules Committee on Criminal Practice and Procedure is seeking comments on proposed amendments to the Mississippi Rules of Criminal Procedure. The posting is here, and the filing deadline is Friday, December 8, 2017.

Supreme Court of Mississippi Seeks Comments on Proposed Appellate Mediation Rule
The Supreme Court of Mississippi’s Rules Committee on Civil Practice and Procedure is seeking comments on a proposed appellate mediation rule. The posting is here, and the filing deadline is November 27, 2017.

Petition to Amend the Mississippi Uniform Rules of Procedure for Justice Court to Improve the Uniformity, Efficiency, and Clarity of Justice Court Procedures 
The Supreme Court of Mississippi’s Rules Committee on Civil Practice and Procedure is seeking comments on the Mississippi Justice Court Judges Association’s Petition to Amend the Mississippi Uniform Rules of Procedure for Justice Court to Improve the Uniformity, Efficiency, and Clarity of Justice Court Procedures. The posting is here, and the filing deadline is November 28, 2017.

Petition to Amend Certain Rules of the Mississippi Uniform Rules of Youth Court Practice to Conform with Recent Legislative Changes and to Clarify Procedures 
The Supreme Court of Mississippi’s Rules Committee on Civil Practice and Procedure is seeking comments on the Mississippi Council of Youth Court Judges’ Petition to Amend Certain Rules of the Mississippi Uniform Rules of Youth Court Practice to Conform with Recent Legislative Changes and to Clarify Procedures. The posting is here, and the filing deadline is November 29, 2017.

Lots of Judge Openings

According to the Miss. Bar email newsletter:

Judicial Selection Advisory Committee Seeks Applicants for a Jones County County and Youth Court Judge
Judge Gaylon Harper has announced his resignation effective December 31, 2017 from his position as Jones County County and Youth Court Judge.  All persons who desire to be considered by the Governor for appointment to this position should submit their resume or other relevant material to the Governor’s Judicial Advisory Selection Committee by mailing same to William L. Smith, PO Box 22587, Jackson, MS 39225 or electronically to bsmith@balch.com  The deadline for applying is November 27, 2017.

Judicial Selection Advisory Committee Seeks Applicants for a Judge in the First Chancery Court District
Judge T.K. Moffett has announced his resignation effective January 31, 2018 from his position as Chancellor for the First Chancery Court District.  All persons who desire to be considered by the Governor for appointment to this position should submit their resume or other relevant material to the Governor’s Judicial Advisory Selection Committee by mailing same to William L. Smith, PO Box 22587, Jackson, MS 39225 or electronically to bsmith@balch.com  The deadline for applying is November 27, 2017.

Court of Appeals at MSU on November 15th

Court of Appeals to visit Mississippi State University on Nov. 15

October 30, 2017

The Mississippi Court of Appeals will convene on the campus of Mississippi State University Nov. 15 to hear oral arguments. A three-judge panel will hold court in the Hunter Henry Center at 1 p.m. and 2:30 p.m.

The Jackson-based court hears a few cases on college campuses each year as part of its Court on the Road program, which educates students and the general public about the operation of appellate courts. Judges talk with students after the oral arguments and answer questions, although they don’t talk about the pending cases.

Court of Appeals Judge Jack Wilson said, “This will be a good opportunity for college students and others to get a sense of how our court operates and see how proceedings at the appellate level are different from what occurs in a trial court. The role of an appellate court is to ensure that trial courts apply the law fairly and correctly, and these two arguments should give the audience a window into how our Court goes about doing that.”

Oral arguments will be heard in two cases. Oral arguments are scheduled for 1 p.m. and 2:30 p.m. People wishing to watch the oral arguments are asked to be in their seats 15 minutes before each proceeding is scheduled to begin.

The 1 p.m. oral argument is in the civil appeal of Beverly Irwin-Giles v. Panola County, cause number 2016-CA-1637-COA. Irwin-Giles sued Panola County over the death of her parents, Lynda and William Irwin, who died July 21, 2015, in a car crash at an intersection on Mississippi Highway 6. A pickup truck driven by a Panola County sheriff’s deputy collided with the car driven by Lynda Irwin. A judge of the Panola County Circuit Court granted summary judgment in favor of Panola County. Irwin-Giles appealed.

Irwin-Giles is represented by the Clarksdale law firm of Chapman, Lewis and Swan. Panola County is represented by attorney David D. O’Donnell of the law firm of Clayton O’Donnell of Oxford.

Irwin-Giles’ brief is at this link:
https://courts.ms.gov/newsite2/appellatecourts/docket/sendPDF.phpf=dc00001_live..16.CA.1637.83115.0.pdf&c=85475&a=N&s=2

The brief filed on behalf of Panola County is at this link:

https://courts.ms.gov/newsite2/appellatecourts/docket/sendPDF.phpf=dc00001_live..16.CA.1637.85575.0.pdf&c=85475&a=N&s=2

The 2:30 p.m. oral argument is a criminal appeal in the case of Adam Chism v. State of Mississippi, cause number 2016-KA-1404-COA. Chism was convicted of house burglary in Hinds County Circuit Court. The incident occurred Jan. 16, 2016. He was sentenced as a habitual offender to life in prison without parole.

Chism is represented by law students of the University of Mississippi School of Law Criminal Appeals Clinic under the supervision of Professor Phillip W. Broadhead. Special Assistant Attorney General Joseph Hemleben represents the state.

Chism’s brief is at this link:

https://courts.ms.gov/newsite2/appellatecourts/docket/sendPDF.php?f=dc00001_live.COA.16.KA.1404.83007.0.pdf&c=85198&a=N&s=2

The Attorney General’s brief is at this link:

https://courts.ms.gov/newsite2/appellatecourts/docket/sendPDF.php?f=dc00001_live.COA.16.KA.1404.89382.0.pdf&c=85198&a=N&s=2

The oral arguments will not be broadcast via the court’s Internet website, since the Court of Appeals is convening special sessions away from its camera-equipped courtroom.

Any media organization which may wish to photograph or videotape the arguments must file a Camera Coverage Notice. Camera Coverage Notices should be directed to Clerk of the Court Muriel Ellis, fax 601-359-2407, and to Assistant Court Administrator Camille Evans, fax 601-576-4708. The Camera Coverage Notice form is at https://courts.ms.gov/forms/camnotice.pdf.

Photographers and videographers must be familiar with and follow the Rules for Electronic and Photographic Coverage of Judicial Proceedings. The camera coverage rules are available at

http://courts.ms.gov/rules/msrulesofcourt/rules_electronicphotographic_coverage.pdf.

Petition to Amend Code of Judicial Conduct granted (sort of)

Over 18 months ago, I filed a Petition to Amend the Code of Judicial Conduct.  My hope was to add a due process requirement to the Special Committee. I asked the Supreme Court to add a clause that read “Immediately provide the subject of the complaint notice and an opportunity to respond in a manner specified by the Special Committee.”  Reading the objecting statements, I’m not sure why my language was not adopted.  It’s certainly better than what was adopted. Oh well.  Yes, I would prefer that they do away with this awful committee.

Yesterday, the Supreme Court granted the petition in part.  This is the Supreme Court’s ruling (without the strike through):

Canon 5F(3) – Mississippi Code of Judicial Conduct

(3) Upon receipt of a written allegation indicating a violation by a judicial candidate of any provision of Canon 5 during the course of a campaign for judicial office, or indicating actions by any independent person(s), committee(s) or organization(s) which are contrary to the limitations placed upon candidates by Canon 5, the Commission staff shall immediately forward a copy of the allegation by e-mail, and U.S. mail to the Special Committee members and the judicial candidate, and said Committee shall:

(a) in a manner which comports with due process, provide the candidate with a list of provisions he or she is accused of violating, and provide the candidate an opportunity to respond;

(b) seek, from the informing party and/or the subject of the information, such further information on the allegations as it deems necessary;

(c) conduct such additional investigation as the Committee may deem necessary;

(d) determine whether the allegations warrant speedy intervention and, if so, immediately issue a confidential cease-and-desist request to the candidate and/or organization or independent committee or organization believed to be engaging in unethical and/or unfair campaign practices. If the Committee determines that the unethical and/or unfair campaign practice is of a serious and damaging nature, the Committee may, in its discretion, disregard the issuance of a cease-and-desist request and immediately take action authorized by the provisions of paragraph (3)(ed)(i) and (ii), hereafter described. If the allegations of the complaint do not warrant intervention, the Committee shall dismiss the same and so notify the complaining party.

(e) If a cease-and-desist request is disregarded or if the unethical or unfair campaign practices otherwise continue, the Committee is further authorized:

(i) to immediately release to all appropriate media outlets, as well as the reporting party and the person and/or organization against whom the information is submitted, a public statement setting out the violations believed to exist, or, in the case of independent persons, committees or organizations, the actions by an independent person, committee or organization which are contrary to the limitations placed upon candidates by Canon 5. In the event that the violations or actions have continued after the imposition of the cease and desist request, the media release shall also include a statement that the candidate and/or organization or independent person, committee or organization has failed to honor the cease-and-desist request, and

(ii) to refer the matter to the Commission on Judicial Performance or to any other appropriate regulatory or enforcement authority for such action as may be appropriate under the applicable rules.

. . . .

The Ruling struck this paragraph from the Comment:

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.

Then, the Supreme Court let us behind the curtain to see what they were arguing about.  Apparently, they all agree that the old Rule did not have a due process element, and that was wrong.  But three of the justices shared with us their losing argument.  I find this argument to be very odd, but I’ll refrain from commenting further right now.

 

WALLER, CHIEF JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶1. I respectfully disagree with the amendment to Canon 5F(3) to require notice to the candidate “in a manner which comports with due process.” The Campaign Committee is a body of volunteers who conduct a nonjudicial investigation with no authority to impose sanctions or punishment. This is not a judicial process, and the requirement of service “which comports with due process” is both overly burdensome and vague. I agree that the person subject to the complaint must have notice of the complaint and the identity of the party who filed it and must have the opportunity to respond. But no more than this should be required for an administrative proceeding such as this. A civil action is commenced simply by serving a complaint and summons upon the opposing party pursuant to the Rules of Civil Procedure. Is this the “due process” required here? No other rule of judicial procedure uses the term “due process” to describe the manner of notice to a party, and this proposal does not give any guidance to the Committee as to how this requirement can be satisfied. I do not believe we should subject the Bar, the candidates, and the volunteer Committee members to these overly burdensome and unnecessary requirements.
KITCHENS, P.J., AND KING, J., JOIN THIS SEPARATE WRITTEN STATEMENT.

KING, JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶2. I agree that Canon 5F(3) of the Code of Judicial Conduct should be amended to clarify that the subject of any campaign complaint shall be given notice and an opportunity to respond to the substance of that complaint. However, given the purpose of Canon 5F, I disagree with the amendment adopted by the majority. The amendment adopted by the majority is overly broad, unnecessarily restrictive, and inconsistent with the duties assigned to the Special Committee.

¶3. Under Canon 5F, the Special Committee is appointed in judicial-election years to address “the propriety of any act or conduct by a judicial candidate, a candidate’s campaign organization or an independent person, committee or organization conducting activities which impact on the election.” Canon 5F(2). Section 5F(4) provides that the work of the Committee shall be informal and nonadversarial, but requires that its work be done “as soon as possible taking into consideration the exigencies of the circumstances.” The amendment adopted by the majority eliminates the Special Committee’s ability to respond expeditiously to any last-minute complaint.

¶4. Section 5F(5) makes abundantly clear that the Special Committee is not a disciplinary body and lacks any authority to “institute disciplinary action against any candidate for judicial office.” Notwithstanding the language of Canon 5F, the amendment adopted by the majority incorrectly suggests: 1) that this applies only to candidates for judicial office, and 2) that it imposes disciplinary actions upon judicial candidates. The majority concerns itself more with due process in a nondisciplinary judicial-election matter than it does in actual disciplinary actions against criminal defendants, whose liberty or very life is at risk.

¶5. Given the purpose and nature of the work of the Special Committee, the right to notice of and an opportunity to respond to a complaint may be clarified by simply inserting a new 5F(3)(a), reading: “in a manner determined by the Committee, provide the candidate, person, committee or organization against whom a complaint has been filed with notice and an opportunity to respond.”

¶6. For the foregoing reasons, I object to the order amending Canon 5F(3) of the Code of Judicial Conduct.

WALLER, C.J., AND KITCHENS, P.J., JOIN THIS SEPARATE WRITTEN STATEMENT.