Justice Kennedy retires

On Tuesday, The Clarion Ledger had an article on who would replace Judge E. Grady Jolly on the 5th Circuit.  It implied the appointment would come soon.  Oh well, the retirement of Justice Kennedy just stopped the nomination/confirmation process for a while.

According to the article, the short list includes:

Mississippi Supreme Court Justice James D. Maxwell

Mississippi Court of Appeals Judge Jack Wilson

U.S. Southern District Chief Judge Dan Jordan

I had also heard that Judge Sul Ozerden was being considered.  I’ve even heard that he was the favorite.

Prayers and good luck to the person chosen.  Tough road to go through a confirmation.  I’m glad we have good candidates who are willing to take on this difficult, but important task.

Special Committee Opinion 2018-003

Opinion 2018-003

The Special Committee on Judicial Election Campaign Intervention received a complaint that requested action against a judicial candidate. Pursuant to Canon 5F(3), the Special Committee finds this matter to be a question of sufficient general interest and importance and issues the following decision.

The Complaint alleged that Candidate B, a candidate for Chancery Court Judge, has violated Canon 5A(3)(d)(iii) of the Code of Judicial Conduct by preparing and displaying political campaign materials stating “[Candidate B], Chancery Judge – Post One.” He has this information on public electronic billboards and on vinyl signs on cars. These materials imply that he is currently a “Chancery Judge.” Photographs were enclosed with the complaint.

Canon 5A(3)(d)(iii) prohibits a candidate from knowingly misrepresenting their qualifications or present position. The complaint also included a copy of Opinion 2006-002 of the Special Committee and Minutes for the Special Committee on Judicial Election Campaign Intervention, dated June 4, 2014. Opinion 2006-002, in relevant part, reads:

. . . The Special Committee has further received inquiries about the use of the word “judge” in campaign materials by candidates who do not hold a judicial office without the use of clarifying words such as “elect” or “for”.

The questions posed are paraphrased below: . . .

2. May a candidate use his/her name together with the title of the office the candidate is currently seeking?

The Special Committee has received inquiries and copies of material with phrases or logos such as “John Doe, Circuit Judge” or “Jane Doe, Chancery Judge” when the candidate does not hold judicial office. This again raises the issue of misrepresentation of qualifications or present position as cited in Canon 5A(3)(d)(iii) above. The Special Committee is of the opinion that such material may be misleading and may imply that the candidate currently holds the judicial office. It is, therefore, the Committee’s opinion that a non-judge candidate may not use these phrases without including language such as “elect” before the candidate’s name and position sought or “for” between the candidate’s name and the position sought. The terms “elect” or “for” should be in an easily readable size and form such that they may not be easily overlooked.

The Special Committee finds no violation of the Code of Judicial Conduct. This allegation is dismissed.

The Special Committee disagrees with Opinion 2006-002. The Special Committee finds that there is not a violation of the Code of Judicial Conduct for a non-judge candidate to use her/his name followed by the position sought. The use of the term “John Doe, Chancery Judge” is not misleading and does not imply that the candidate holds the judicial office. It is common practice in elections to include only the candidate’s name and office sought. The words “elect” or “for” may be used at the discretion of the candidate, but are not required.

In addition, the Committee reminds the Candidate that the costs incurred with the signs and billboards may require the filing of campaign finance disclosures or reports with the Secretary of State. And, Miss. Code Ann. §23-15-1025 requires certain disclosures on all campaign materials.

This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct.

Any questions should be in writing and directed to:

Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277
Email: Ballard@judicialperformance.ms.gov

16 books judges should own if they want to write well

Here is a link to an article from the National Judicial College.  Yes, 16 books you need to own.

By Julie Oseid and Randall Tietjen

Three conventional dictionaries

  1. Merriam Webster’s Collegiate Dictionary (10th edition)
  2. The Oxford English Dictionary (5th edition)
  3. The American Heritage Dictionary (6th edition)

One legal dictionary

  1. Black’s Law Dictionary (10th edition)

Two English usage books

  1. Modern English Usage by H.W. Fowler
  2. Garner’s Modern English Usage

One legal usage book

  1. Garner’s Dictionary of Legal Usage

Three style guides

  1. The Chicago Manual of Style. Good advice on punctuation and style, plus handy information about copyright and fair use.
  2. The Redbook: A Manual on Legal Style by Bryan Garner
  3. Plain English for Lawyers by Richard Wydick

Beyond the reference books

  1. Elements of Style by Strunk & White. This book has likely been on your bookshelf since college, but it is well worth revisiting with some regularity.
  2. On Writing Well by William Zinsser. This book will make you want to be a better writer.
  3. On Writing by Stephen King. Yes, that Stephen King.
  4. The Sense of Style by Steven Pinker
  5. 30 Days to Better English by Norman Lewis. Good for improving your vocabulary.
  6. Typography for Lawyers by Matthew Butterick. It explains how effective communication depends on document design, including how words look on a page.

 

Special Committee Opinion 2018-002

Opinion 2008-002

The Special Committee on Judicial Election Campaign Intervention received a complaint that requested action against a judicial candidate. Pursuant to Canon 5F(3), the Special Committee finds this matter to be a question of sufficient general interest and importance and issues the following decision.

The Complaint alleged the following violations:

1. Prior to 2018, Candidate A posted a picture on his Facebook page which depicted a gavel with the caption “2018”. The post has since been deleted. The complaint alleges this is a violation of Canon 5A(l)(a) of the Code of Judicial Conduct, which states, “All Judges and Candidates . . . shall not act as leader” as well as Canon 5A(3)(d)(iii), which states, “A candidate for a judicial office shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.”

The Special Committee finds no violation of the Code of Judicial Conduct. This allegation is dismissed.

2. In 2016, Candidate A posted a picture on his Facebook page that depicted himself at the Supreme Court of Mississippi, behind the bench, and holding a gavel. This is before the qualifying deadline and after he publicly stated he was running for Judge. A copy of the picture was attached. The complaint alleges this is a violation of Canon 5A(1)(a), which states, “All Judges and Candidates . . . shall not act as leader” as well as Canon 5J(3)(d)(iii), which states, “A candidate for a judicial office shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.”

The Special Committee finds no violation of the Code of Judicial Conduct. This allegation is dismissed.

3. In December of 2017, Candidate A personally solicited votes in a Facebook post of a picture of himself holding his campaign sign which states, “Elect [Candidate A] 11/6/18.” This was posted well before the qualifying deadline. It reached at least 222 individuals who reacted to the post, was shared by 9 individuals and received at least two comments. A copy of the posting was provided. The caption indicated that Candidate A was aware at the time of his posting that he was advertising and soliciting for support before qualification. The complaint alleges this was a violation of Canon 5C(2) of the Code of Judicial Conduct, which states, “A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly state support. . . . A candidate’s committees shall not solicit or accept contributions and public support for the candidate’s campaign earlier than 60 clays before the qualifying deadline or later than 120 days after the last election in which the candidate participates during the election year.”

The Special Committee finds no violation of the Code of Judicial Conduct. This allegation is dismissed.

4. In January of 2018, Candidate A mailed a form letter to elected officials in the court district directly soliciting votes and support. A copy of the letters was attached. The letter states that “it may be a bit early to campaign.” The complaint alleged this was a violation of Canon 5C(2), which states, “A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly state support . . . . A candidate’s committees shall not solicit or accept contributions and public support for the candidate’s campaign earlier than 60 days before the qualifying deadline or later than 120 clays after the last election in which the candidate participates during the election year.”

The Special Committee finds no violation of the Code of Judicial Conduct. This allegation is dismissed.

Although not alleged in the complaint, the Committee reminds the Candidate that the costs incurred with such mailing may require the filing of campaign finance disclosures or reports with the Secretary of State. Miss. Code Ann. §23-15-1025 requires certain disclosures on all campaign materials, and it does not appear such disclosures were included in the letter.

5. Candidate A has turned his truck into a portable sign and has parked it at courthouses in the district. A photographs of the truck was included. The complaint alleges this a violation of Canon 5C(2), which states, “A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly state support . . . A candidate’s committees shall not solicit or accept contributions and public support for the candidate’s campaign earlier than 60 days before the qualifying deadline or later than 120 days after the last election in which the candidate participates during the elect ion year.”

The Special Committee finds no violation of the Code of Judicial Conduct. This allegation is dismissed.

Although not alleged in the complaint, the Committee reminds the Candidate that the costs incurred with the signs may require the filing of campaign finance disclosures or reports with the Secretary of State. Miss. Code Ann. §23-15-1025 requires certain disclosures on all campaign materials, and it does not appear such disclosures were included on these signs.

6. Candidate A has personally solicited votes in a Facebook post, dated January 2, 2018, which he specifically stated, “On November 6, 2018, vote [Candidate A] for Circuit Court Judge.” The complaint alleges this was a violation of Canon 5C(2). A copy of the post was attached.

The Special Committee finds no violation of the Code of Judicial Conduct. This allegation is dismissed.

7. On January 15, 2018, Candidate A again personally solicited votes on Facebook. The complaint alleged this was a violation of Canon 5C(2). Further, in response to a comment, Candidate A stated “I’d be glad to get [you] set up with absentee ballots . . . .” The complaint alleges this was a violation of the Code of Judicial Conduct as he offered to assist with absentee ballots. A copy of the post was attached.

The Special Committee finds no violation of the Code of Judicial Conduct. This allegation is dismissed.

8. Candidate A has solicited votes before and after the qualifying deadline in violation of Canon 5C(2). The complaint alleges that he is personally prohibited from soliciting publicly stated support. Further, his campaign committee is not to solicit support earlier than 60 clays before the qualifying deadline. But he has no campaign committee. Therefore, the complaint alleges Candidate A repeatedly violated Canon 5C(2) and ignored the rules.

The Special Committee finds no violation of the Code of Judicial Conduct. The allegations asserted in the Complaint are dismissed.

This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct.

Any questions should be in writing and directed to:

Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277
Email: Ballard@judicialperformance.ms.gov

Special Committee Opinion – 2018-001

Here is a link to the Special Committee Page on the Supreme Court’s website.  You will see the opinions released here.

Opinion 2018-001

The Special Committee on Judicial Election Campaign Intervention received a request for an opinion on the following issue:

Whether small promotional items, such as fingernail files, personal fans, stickers, cups, t-shirts, yard-signs, table runners, and balloons are considered “materials” under the Mississippi Election Code such that they have to state that they are paid for by the committee to elect the candidate or approved by or distributed by the candidate as required in Miss. Code Ann. § 23-15-1025. Also, does a large wooden road sign or banner constitute materials such that it must have the required language?

The term “materials” is not defined under the Code. Additionally, please provide a formal opinion as to what the Special Committee considers to be material. I see a distinction between promotional items and material that is submitted providing information about the candidate.

The Special Committee has determined that this issue presents a question of sufficient general interest and importance. As a result, the Special Committee had decided to issue the following formal opinion.

There are two statutes that relate to the purchase and distribution of “Campaign Materials.” First, Mississippi Code Annotated section 23-15-1025 provides:

Distribution of campaign materials.
If any material is distributed by a judicial candidate or his campaign committee or any other person or entity, or at the request of the candidate, his campaign committee or any other person or entity distributing the material shall state that it is distributed by the candidate or that it is being distributed with the candidate’s approval. All such material shall conspicuously identify who has prepared the material and who is distributing the material. The identifying language shall state whether or not the material has been submitted to and approved by the candidate. If the candidate has not approved the material, the material shall so state. The identity of organizations or committees shall state the names of all officers of the organizations or committees. Any person, who violates the provisions of this section, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of One Thousand Dollars ($1,000.00) or by imprisonment for six (6) months or both fine and imprisonment.

Second, the Mississippi Legislature recently amended Mississippi Code Annotated section 23-15-897:

Certain information to be included in campaign materials; compliance with section for campaign materials published on electronic platform.

(1) The following words and phrases shall have the meanings as defined in this section unless the context clearly indicates otherwise:

(a) “Campaign materials” include any materials designed to influence voters for or against any candidate, party or measure to be voted on at any election, or containing information about any candidate, party or measure paid for by a candidate, political committee, or independent expenditure which requires disclosure under campaign finance laws.
(b) “Publish” means the act or instance of making campaign material available to the public, or to a list of subscribers, by mail, telephone, electronic communications platforms, Internet, software applications, printed materials or any other means of distribution.
(c) “Printed material” shall include, but not be limited to, any notice, placard, bill, poster, dodger, pamphlet, advertisement, sign or any other form of printed publication, except notices, posters and the like, which simply announce a speaking date and invite attendance thereon.

(2) No candidate, political committee or other person shall publish, or knowingly cause to be published, any campaign materials unless it contains the following information:

(a) The name of the candidate along with a statement that the message is approved by the candidate; or
(b) If the message has not been approved by a specific candidate, the name of the person, political committee or organization paying for the publication of the message; or
(c) If the message has not been approved by the candidate and no person, political committee or organization is identified as having paid for the publication, the entity producing the campaign materials must be identified.
(3) Publication of campaign materials through an electronic platform shall be deemed to comply with the requirements of this section if the home page of the candidate or political committee provides the information required by subsection (2), and each electronic publication provides a link to that home page.

The Special Committee is of the opinion that the definition of “Campaign Materials” in section 23-15-897(1)(a) also defines the term “material” in section 23-15-1025. Thus, Campaign Materials include: push cards, pamphlets, circulars, handbills, personal fans, sample ballots, bumper stickers, advertisements, signs (including signs for display on motor vehicles or in yards), billboards, banners, direct mail or other commercially printed items.

The Special Committee is also of the opinion that the inclusion of the language “approved by the candidate” is sufficient to indicate the material was submitted to the candidate, approved by the candidate, and paid for/distributed by either the candidate or the candidate’s committee as the disclaimer.

However, the question submitted asks about very small promotional items where it is impossible or impractical to include the disclaimer language of section 23-15-1025 or section 23-15-897. The Special Committee is of the opinion that very small Campaign Materials may be purchased and distributed, without the required disclaimer. Examples of such items include:

• fingernail files,
• apparel stickers,
• buttons, pins, and campaign jewelry,
• pens and pencils,
• matchbooks,
• balloons,
• clothing,
• cups and water bottles,
• bank account checks and
• similar small promotional items.

If the disclaimer is not included on any such very small promotional item, it is the responsibility of the candidate and the candidate’s committee to ensure that such items only identify the candidate and the position sought, are paid for by the committee and are properly reported on campaign finance reports. Further, a candidate or committee may not cooperate or coordinate with any person or entity to purchase or distribute such items to avoid reporting a campaign contribution/expense or to communicate false or misleading information.

This opinion is limited to the scope and authority of the Special Committee under the Mississippi Code of Judicial Conduct. The Special Committee expresses no opinion as to the imposition of criminal prosecution under this section 23-15-1025.

Any questions should be in writing and directed to:

Special Committee on Judicial Election Campaign Intervention
Attn: Darlene Ballard
Executive Director
Mississippi Commission on Judicial Performance
660 North Street, Suite 104
Jackson, MS 39202
Telephone: (601) 359-1273 • Fax: (601) 354-6277
Email: Ballard@judicialperformance.ms.gov

 

 

Supreme Court decides Political Apparel Case

The Supreme Court decided Minn. Voters v. Manskey which deals with a political apparel ban.

Here is an excerpt from the Syllabus:

Minnesota law prohibits individuals, including voters, from wearing a“political badge, political button, or other political insignia” inside a polling place on Election Day. Minn. Stat. §211B.11(1) (Supp. 2017).This “political apparel ban” covers articles of clothing and accessories with political insignia upon them. State election judges have the authority to decide whether a particular item falls within the ban. Violators are subject to a civil penalty or prosecution for a petty misdemeanor.

. . .

Held: Minnesota’s political apparel ban violates the Free Speech Clause of the First Amendment.

(a) Because the political apparel ban applies only in a specific location—the interior of a polling place—it implicates the Court’s “ ‘forum based’ approach for assessing restrictions that the government seeks to place on the use of its property.” . . .  A polling place in Minnesota qualifies as a nonpublic forum under the Court’s precedents. As such it may be subject to content-based restrictions on speech, . . . , so long as the restrictions are “reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view,” . . .  Because the text of the statute makes no distinction based on the speaker’s political persuasion, the question is whether the apparel ban is “reasonable in light of the purpose served by the forum”: voting. . . .

(b)  Minnesota’s prohibition on political apparel serves a permissible objective. In Burson v. Freeman, . . . the Court upheld a Tennessee law imposing a 100-foot zone around polling place entrances in which no person could solicit votes, distribute campaign materials, or “display . . . campaign posters, signs or other campaign materials.” . . .. In finding that the law withstood even strict scrutiny, the Burson plurality—whose analysis was endorsed by Justice Scalia’s opinion concurring in the judgment—emphasized the problems of fraud, voter intimidation, confusion, and general disorder that had plagued polling places in the past. Against that historical backdrop, the plurality and Justice Scalia upheld Tennessee’s determination that a campaign-free zone outside the polls was necessary to secure the advantages of the secret ballot and protect the right to vote.
MVA argues that Burson considered only active campaigning outside the polling place by campaign workers and others trying to engage voters approaching the polls, while Minnesota’s ban prohibits passive self-expression by voters themselves when voting. But although the plurality and Justice Scalia in Burson did not expressly address the application of the Tennessee law to apparel—or consider the interior of the polling place as opposed to its environs—the Tennessee law swept broadly to ban even the plain “display” of a campaign-related message, and the Burson Court upheld the law in full.The plurality’s conclusion that the State was warranted in designating an area for the voters as “their own” as they enter the polling place, id., at 210, suggests an interest more significant, not less,within that place.

No basis exists for rejecting Minnesota’s determination that some forms of campaign advocacy should be excluded from the polling place in order to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43.Casting a vote is a weighty civic act, and the State may reasonably decide that the interior of the polling place should reflect the distinction between voting and campaigning. And while the Court has noted the “nondisruptive” nature of expressive apparel in more mundane settings, . . .  those observations do not speak to the unique context of a polling place on Election Day.

(c) But the line the State draws must be reasonable. The State therefore must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. The unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail this test.

The statute does not define the term “political,” a word that can broadly encompass anything “of or relating to government, a government, or the conduct of governmental affairs.” Webster’s Third New International Dictionary 1755. The State argues that the apparelban should be interpreted more narrowly to proscribe “only wordsand symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the]polling place.” . . .  At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel.
The Court considers a State’s authoritative constructions in interpreting a state law. But far from clarifying the indeterminate scope of the provision, Minnesota’s “electoral choices” construction introduces confusing line-drawing problems. For specific examples of what messages are banned under that standard, the State points to the Election Day Policy. The first three categories of prohibited items in the Policy are clear. But the next category—“issue oriented material designed to influence or impact voting”—raises more questions than it answers. The State takes the position that any subject on which a political candidate or party has taken a stance qualifies as an “issue” within the meaning of that category. Such a rule—whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot—is not reasonable.

The next broad category in the Election Day Policy—any item “promoting a group with recognizable political views”—makes matters worse. The State does not confine that category to groups that have endorsed a candidate or taken a position on a ballot question.As a result, any number of associations, educational institutions,businesses, and religious organizations could have an opinion on an“issue confronting voters.” The State represents that the ban is limited to apparel promoting groups with “well-known” political positions. But that requirement only increases the potential for erraticapplication, as its enforcement may turn in significant part on the background knowledge of the particular election judge applying it.
It is “self-evident” that an indeterminate prohibition carries with it“[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” Jews for Jesus, 482 U. S., at 576. The discretion election judges exercise in enforcing the ban must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it. Thus, if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one offered by Minnesota here.

Reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
THOMAS, GINSBURG, ALITO, KAGAN, and GORSUCH, JJ., joined. SOTOMAYOR,
J., filed a dissenting opinion, in which BREYER, J., joined