Mississippi Appellate Law and Commentary

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Neshoba County Fair Judicial Speeches today

Don’t forget.

Here is the schedule:

9:40 am Rosalind H. Jordan, candidate for Chancery Judge, 6th Chancery District, Place 2
9:50 am Kiley Kirk, candidate for Chancery Judge, 6th Chancery District, Place 2
10:00am Honorable D. Joseph Kilgore, candidate for Chancery Judge, 6th Chancery District, Pl 1 (unopposed)
10:30 Honorable Mark Duncan, candidate for Circuit Judge, 8th Circuit Court (unopposed)
10:40am Honorable Chris Collins, candidate for Circuit Judge, 8th Circuit Court (unopposed)
It’s gonna be hot.  Dress appropriately and drink plenty of water.
Best of luck to all candidates.

Neshoba County Fair Judicial Speech Schedule

The judicial candidates are scheduled to speak on Tuesday, July 31st.  Here is the schedule:

9:40 am Rosalind H. Jordan, candidate for Chancery Judge, 6th Chancery District, Place 2
9:50 am Kiley Kirk, candidate for Chancery Judge, 6th Chancery District, Place 2
10:00am Honorable D. Joseph Kilgore, candidate for Chancery Judge, 6th Chancery District, Pl 1 (unopposed)
10:30 Honorable Mark Duncan, candidate for Circuit Judge, 8th Circuit Court (unopposed)
10:40am Honorable Chris Collins, candidate for Circuit Judge, 8th Circuit Court (unopposed)
These speeches should be mild.  The real stuff hits the fan on Wednesday and Thursday.
I’ve you’ve never been to the Fair, treat yourself and pick one morning to come enjoy the speeches.
I’ll be there Wednesday and Thursday.  Best of luck to all candidates.

 

10 common mistakes new judges make—and how to avoid them

This is from the National Judicial College –  Check out Chancellor Cynthia Brewer’s contribution

10 common mistakes new judges make—and how to avoid them

Earlier this month we emailed current and past NJC faculty asking for the most common mistakes they see new judges make and advice on how to avoid them. Submissions began pouring in almost as soon as we hit send.

We had so many, in fact, that we’re going to break them up into installments, in this month’s issue and next. Here are the first 10:

  1. They shy away from making decisions

“I have been a judge for 25 years. Over the years I have noticed many new judges have a difficult time making decisions. New judges come from the community and hear cases with their community lawyers. They sometimes are afraid of ruling against community lawyers. They have a hard time coming to grips with a judge’s responsibility to decide, as opposed to not ruling and hoping the case settles if the judge drags his/her feet too long.”

Judge John Lenderman
St. Petersburg, FL

  1. They accept every agreed order

“It is very, very tempting to new judges to sign off on agreed orders. For example, the parties will present agreed trial continuances, agreed protective orders that give them carte blanche to seal and redact, agreed briefing schedules, agreed expansions of page limits, plea bargains, and more. The solution to this problem is to not be afraid to say no. Trial date certainty is crucial to justice, and it can only be achieved if the court makes it clear that only good cause will warrant a continuance, and (usually) only once. Similarly, the court has an obligation to provide transparency: sealing and redaction defeats this goal. Nor does the court want to cede control of its calendar, including burying itself in long, late-filed reading, by signing off on parties’ agreement to change the court rules on briefing dates and page limits. And, of course, sentencing discretion is meaningless if the court simply signs off on plea agreements.”

Judge Catherine Shaffer
President, American Judges Association
Seattle

  1. They forget to complete the record

“You have three best friends in the courtroom. They are: the record, the record, the record. Your best friends will never turn on you unless you lose your cool. The moral is, keep your cool. It is your courtroom and you get the last say. As long as you make the record, you will be fine.”

Judge Lee Sinclair
Canton, OH

  1. They forget about … other important things

“Make sure your robe is on before taking the bench (I’ve been so engaged in thought I marched right into court forgetting my robe.) If you don’t have a court reporter, always double-check to make sure the recorder is on. No one likes to recreate a record.”

Judge Lin Billings Vela
Cripple Creek, CO

  1. They don’t go to judge school, and they don’t cut the cord

“I know this will seem self-serving, but many new judges do not take advantage of judicial education programs that will help them get started with the right mindset and skills. It also helps to sever the business and social links between a new judge and his/her former law firm. I remember my presiding judge telling me to get to the NJC during my first year on the bench. I attended General Jurisdiction. After returning, I felt better informed than ever before, and the local attorneys knew I had been through courses that would benefit everyone, including their clients. The professional distance between a new judge and those with whom a law firm connection existed is an important break, and I’ll never regret doing it through the NJC. I’m sure that all of the local lawyers appreciated knowing I was completely independent in my decision-making.”

Judge Jess Clanton
Langley, OK

  1. They forget they aren’t a trial attorney anymore

“Stepping into the advocate role is a big mistake for new judges. Another mistake is failing to understand the need to create a full record and the importance of being the “conductor” of the proceedings. Those are just some of the issues we see.”

Judge Susan L. Formaker
Los Angeles

  1. They place too much faith in court-appointed experts

“Newly appointed family law judges are often afraid of making mistakes that might harm children – which is important, of course. However, before relying on expert opinions, it is important to understand whether the expert has done a thorough and sufficient job of gathering data. Too often experts seem merely like stenographers who fail to get sufficient depth/breadth in their data gathering. The experts may not have not tested or considered multiple hypotheses before reaching conclusions. They may not have an adequate basis for their opinions or may be otherwise influenced by some type of cognitive or other bias(es). This is especially true when allegations of domestic violence exist in a case, in very high-conflict cases with children who refuse/resist contact with a parent, or in relocation cases.”

Forensic psychologist Philip M. Stahl
Queen Creek, AZ

  1. They try too hard to look dignified

“I believe many new judges are so concerned about appearing dignified that they can seem very remote and even uncaring. The solution to this is to learn and apply the lessons of procedural fairness. In reality, there is nothing undignified about being a good listener, a person who explains the neutral principles they are applying, someone who treats each party equally, or someone who speaks in plain language.”

Judge Catherine Shaffer
President, American Judges Association
Seattle

  1. They don’t realize that…

1. “It is impossible to have equally talented and prepared attorneys on each side of every case.

2. There will be someone who will file a complaint against a judge, whether justified or not.

3. You will have no privacy. Attorneys as well as citizens expect to know where you are and what you’re doing IF YOU AREN’T IN THE COURTROOM.

4. Depending on type of judgeship, the amount of work will be unexpected. You will be placed on committees and asked to do assignments outside the description of the job.

5. There will rarely be enough time to sit and ponder the law quietly at your desk.

6. There will not be enough money to take a judicial training course outside your state. You should nonetheless volunteer to teach at Continuing Legal Ed classes. And you should know that judges are improved by taking Continuing Judicial Education courses, wherever they are held.”

Judge Cynthia L. Brewer
Canton, MS

  1. They misunderstand their position

“Stay away from the phrase ‘In my court…’  It is not your court, it belongs to the people, it will always belong to the people, and you can be replaced.”

So…

“Understand that the case before you is the most important case on the planet, and treat the people before you in that manner. Treat people the way you would want a family member to be treated if they were in court. Do not have ‘POLICIES.’ Have trust in your in-court staff. Listen more than speak. Do not rush your docket, no matter how busy it is. Take frequent breaks. Smile. Dress like a judge. Be humble. Be kind. Never show anger. Never assume anything before asking questions. Do not be afraid to say, ‘I do not know.’”

Judge Louis Schiff
Deerfield Beach, FL

Merit Selection – The Missouri Plan

An excerpt from Southwick, The Least of Evils for Judicial Selection, 21 Miss. C. L. Rev. 209, 212-13 (2002):

II. The Various Judicial Selection Methods

B. Merit Selection

Since Missouri was the first state to adopt a plan proposed by academicians beginning in 1914, it has earned the name “Missouri Plan.” There are variants, but the concept is that a small group of individuals are appointed by specific governmental and Bar officials to a nominating commission. Interviews, background investigations or other preliminary work may be undertaken. They agree on a list of perhaps three names to submit to the governor. From this list, the governor must choose the appointee. After the passage of a designated period as judge, the appointee will be voted on by the people in an election not against an opponent, but just as an up or down vote on retention. If retained, the judge continues in office for a much longer period before needing again to face the voters.

The make-up of the commission is of considerable importance. In Missouri, the commission consists of lawyers selected by the bar association, non-lawyers selected by the governor, and a sitting judge who chairs the commission.12

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.

(Emphasis added).

Special Committee Opinion 2018-09

2018-09 Opinion

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

Candidate E was elected to the Mississippi Court of Appeals in November 2012 and served from January 7, 2013 to January 2, 2017. She has asked for guidance on using signs that were used in a prior election and contain the words “Re-Elect” Candidate E. She asked these questions:

1. May I keep “Re-elect” on the sign and add the language “served on the Mississippi Court of Appeals from January 7, 2013 to January 2, 2017.”

2. Must I paint over the “Re-“ so the sign would only have “Elect [Candidate E].”

Canon 5A(3)(d)(iii) of the Code of Judicial Conduct provides that “[a] candidate for judicial office shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.”

In Opinion 2010-2, the Special Committee determined:

The Special Committee has been asked whether a candidate who was formerly a judge may use a judicial title in a campaign when the candidate is not currently a judge. In Opinion 2006-2, the Committee looked to Canon 5A(3)( d)(iii) which prohibits misrepresentation of a candidate’s qualifications. With respect to the use of the title “judge,” it said “The campaign material must clearly identify the circumstances justifying use of the title, including the judgeship currently held. The use of the title cannot be misleading, cannot misrepresent the candidate’s present position, and must make clear to the voting public that the candidate is not a judge of the court for which the candidate is currently seeking election.”

Under this opinion, if the candidate is not currently a judge, then the candidate’s use of the title “judge” is misleading if the candidate does not also indicate that the candidate is not currently a judge. The candidate could satisfy this requirement in a number of ways, including use of the word “former” or an indication of the years in which the candidate actually served as a judge.

The Special Committee adopts Opinion 2010-2 and is of the opinion that you may use the term “Re-elect” along with the statement “served on the Mississippi Court of Appeals from January 7, 2013 to January 2, 2017.”

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 2018-08

2018-08 Opinion

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

Candidate D asked for an opinion on campaign materials. Candidate D is the only candidate who has been working at Youth Court since 2003. She serves in Youth Court as the Guardian ad Litem. Thus, she already knows all the law and procedures. That sets her apart from the other 5 running and thus what we are trying to convey.

Two questions:

1. Is there any issue with the tagline – “Serving in Youth Court since 2003″?

2. Is there any issue calling out “Youth Court”? County Court Place 3 is the official position – but it has historically been “youth court” – and thus very different than any other court in Harrison County.

Canon 5A(3)(d)(iii) of the Code of Judicial Conduct provides that “[a] candidate for judicial office shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.”

Based on the information provided, the Special Committee is of the opinion that there is no violation of the Code of Judicial Conduct by the use of the general phrase – “Serving in Youth Court since 2003” on campaign signs.

According to Mississippi Code Annotated section 43-21-107, “youth court” is a “division of the county court of each county . . . and the county judge shall be the judge of the youth court . . . .” Therefore, the Special Committee is aware that the judicial election campaigns for the position of “County Court” may require a discussion of qualifications and discussion of any prior service in “Youth Court.” The Special Committee finds no violation in the general use of both “Youth Court” and “County Court” in campaign materials.

Further, in written communications by a candidate and the committee, the Special Committee is of the opinion that Canon 5A(3)(d)(iii) may require a more detailed statement to make sure there is no misrepresentation of “qualifications, present position or other fact concerning the candidate.” This opinion is limited to the use of the phrase “Serving in Youth Court since 2003 on campaign signs.

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

NFJE Judges Forum

Tomorrow is the Judges Forum put on by the National Foundation for Judicial Excellence.

Our own Judge Carlton W. Reeves, U.S. District Court for the Southern District of  Mississippi, will make a presentation on Writing Opinions with an Eye to the Public and the Press

Here is the description.
Appellate written opinions have many consumers, including the litigants, the legal profession, the media, and the general public. Should judges seek to draft opinions that are easily understood by these diverse audiences, and if so, how is that best accomplished? This panel will discuss the benefits of writing opinions so that the public—usually through the press—can understand them, and techniques for satisfying the public’s demand for greater judicial transparency.

The Co-presenter will be Zoe Tillman, BuzzFeed News, Washington, D.C.