This is another entry on today’s hand down.
In Re: Code of Judicial Conduct; Disposition: In Re: Code of Judicial Conduct; Disposition: The Mississippi Commission on Judicial Performance’s Motion to Clarify, or in the Alternative, to Suspend the Rules for Good Cause Shown is denied. To Deny: All Justices. Order entered.
I was not aware of the Objection to the Petition that I had filed. Here is the Motion filed by the Judicial Performance Commission and the Special Committee:
MOTION TO CLARIFY, OR IN THE ALTERNATIVE, TO SUSPEND THE RULES
FOR GOOD CAUSE SHOWN
COMES NOW the undersigned, Mississippi Commission on Judicial Performance, (Commission), on its own behalf and on behalf of the Special Committee on Judicial Election Campaign Intervention (“Committee”), and files its Motion to Clarify pursuant to Mississippi Rules of Appellate Procedure (“MRAP”) Rule 27(h)(6), or in the alternative, Motion to Suspend the Rules for Good Cause Shown, allowing a Motion for Reconsideration to be filed, pursuant to MRAP Rule 27(h)(8), and in support thereof would show as follows:
1. Motion to Clarify
On March 16, 2016, Kenny Griffis (“Griffis”) filed a Petition to Amend Canon 5F of the Code of Judicial Conduct seeking the addition of a provision for notice to the subject of a complaint, and an opportunity to respond. Griffis had been the subject of a complaint during his 2002 judicial campaign. The Committee was asked to respond and filed its response to the Petition on August 31, 2016. Recently, on October 30, 2017, this Court entered its Order granting Griffis’ petition in part on a vote of 5-3.
The amendment to Canon 5F provides in pertinent part that where an allegation of a
violation of any provision of Canon 5 is filed, the Commission staff shall immediately forward a copy of the allegation by email and U.S. Mail to the Committee members and the subject of the complaint and “the 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 … ”
A The Committee is charged with implementing Canon SF, with the Mississippi
Commission on Judicial Performance (“Commission”) providing administrative
support. As amended, neither the Committee nor the Commission can fulfill its
obligations without clarification from this Court as to what “comports with due
Chief Justice Waller and Justices Kitchens and King object to the Order addressing the
lack of clarity the Committee now seeks in this motion: a definition or explanation of what steps constitute “comport[ing] with due process.” Not only is the purely voluntary Committee charged with the near impossible task of determining what the revised rule requires, but the penalty for an incorrect guess is likely a federal civil rights violation lawsuit for its members. 1 This Court constitutes a body whose full-time job requires interpretation of law(s) and affords members statutory immunity for its decisions, and is in the best position to interpret what “comports with due process” means, yet only five out of eight agree. A volunteer committee, completely devoid of any statutory immunity, cannot be expected to be held to a higher standard. That is, if any willing member can be found to serve on the Committee in light of the October 30, 2017 order.
B. The Committee welcomes an amendment to Canon SF; however, one that is unclear exacerbates the problem, rather than creating a solution to one.
In its Comments on the Petition to Amend Canon SF, the Committee outlined its desire to ” … afford the subject of a complaint with prompt notice and opportunity to respond prior to any action being taken, while also affording the Special Committee the latitude it needs to prescribe a procedure which is commensurate with the unique allegations, exigencies of the circumstances and timing of a complaint.”2 In its current form, and in the amended form, the Committee is charged with acting on requests received within ten ( 10) days of receipt, and on requests received during the last ten ( 10) days of the campaign, within thirty-six (36) hours of receipt. 3 The amended Canon grants the volunteer Committee a sparse thirty-six (36) hours to: a) investigate a non-judicial matter to determine the propriety of a judicial candidate’s actions, then b) upon determination of impropriety, act on the complaint informally and non-adversarially, but c) in such a way that comports with due process. The members maintain full time, busy jobs in the private sector and render a service to the public in serving on the Committee. However, as amended, adherence to and enforcement of the Canon is a logistical impossibility for the Committee, in its present form.
2. Motion to Suspend the Rules for Good Cause Shown, allowing a Motion for Reconsideration to be filed, pursuant to MRAP Rule 27(h)(8).4
If this Court determines that a Motion to Clarify is not properly before the Court, the Committee moves this Court, in the alternative, to suspend the rules for good cause to allow a motion for reconsideration to be filed. Under MRAP Rule 2(c), the appellate rules may be suspended for good cause. 5 The imposition of a Canon requiring a Committee to act in a way that it simply cannot, would most assuredly constitute “good cause.” As such, in the event that this Court determines that the Motion to Clarify is not properly procedurally before it for consideration, the Committee prays that the Court suspend the procedural rules barring its consideration in order to allow the Court to consider it. The overly broad and vague nature of the amendment necessitate this Court’s reconsideration.
WHEREFORE, PREMISES CONSIDERED, the Committee respectfully prays for the entry of a Clarifying Order or an alternate amendment to Canon SF addressing the concerns raised hereinabove.
MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE
RACHEL W. MICHEL,
SENIOR STAFF ATTORNEY
1 Committee members are not afforded any type of immunity under any applicable statute.
2 Comments of the Special Committee on Judicial Election Campaign Intervention to Petition to Amend Canon 5F of the Mississippi Code of Judicial Conduct, August 21,2016, paragraph ll(A)
3 Mississippi Rules, Code of Judicial Conduct, Canon 5( 4)
4 Mississippi Rules of Appellate Procedure, Rule 27(h)(8) and Rule 2(c)