Special Committee Opinion 2018-05

2018-05 Opinion

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

A local county ordinance was provided to the judicial candidates of a certain Mississippi county which prohibits putting up political signs “on property by the owner thereof or other private property with the property owner’s consent and not in any County or State right-of-way or easement” until 60 days prior to the election. On June 6, 2018, which is 120 days prior to the allowed time period for erecting signs, it was observed that one judicial candidate had erected a large political sign outside his/her office located in this county. Is this a violation of Canon 5(A)(3) and/or an unethical and unfair campaign practice or can all candidates put up signs at their offices?

Canon 5(A)(3), in relevant part, provides that “[a] candidate for a judicial office shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary . . . . Also, Canon 5(F) provides that “[t]he objective of the Special Committee shall be to alleviate unethical and unfair campaign practices in judicial election . . . .”

This matter was submitted as a request for an opinion. No candidate was named, no ordinance was provided, and no evidence of any unlawful, unethical or unfair conduct was provided.

The Special Committee has decided that the request for an opinion failed to include sufficient information to determine whether a candidate violated a law or committed an unethical or unfair campaign practice. The Special Committee notes that in Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015), the United States Supreme Court ruled unconstitutional a local sign ordinance that set time limits for display by political candidates. However, because of the lack of sufficient facts or information to determine whether Reed would apply to the sign ordinance referenced here, the Special Committee declines to act on the request for an opinion.

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

Are Judicial Elections Too Political?

As Chair of the Special Committee on Judicial Election Campaign  Intervention, I recently received an email from a Concerned Lawyer about an opinion.

His chief complaint was that judicial positions have become political positions and have become too “politicalized” (my word).  He asked what could be done.

Here is an excerpt from how I responded.

Canon 5F of the Mississippi Code of Judicial Conduct governs judicial elections. It creates what is called the “Special Committee on Judicial Election Campaign Intervention.” The Special Committee has the responsibility “to issue advisory opinions and to deal expeditiously with allegations of ethical misconduct in campaigns for judicial office.” The objective of the Special Committee shall be to alleviate unethical and unfair campaign practices in judicial elections.

You also asked what you might do about the “politicalization” (my word) of the judicial elections. May I share several thoughts.

First, you may ask for an opinion from the Special Committee or you may file a complaint against a candidate. You may provide the Special Committee with any information that you believe may be relevant, including citations to the Code of Judicial Conduct, statutes, cases, or any other relevant facts or law. If you have a concern with an Opinion or any campaign conduct, you may certainly file a request for an opinion or a complaint that asks the Special Committee to change, revise or modify a opinion.

Second, you may file a petition to revise the Code of Judicial Conduct with the Supreme Court. I have done that before, and I believe the Supreme Court gives proper consideration to every such petition filed by a member of the Bar. I encourage you to share your concerns and thoughts for improvement with the Supreme Court. I have and will continue to do so.

Third, you may get involved in the judicial elections and work hard for your selected candidate(s). One of the reasons that candidates have to raise money and have to rely on social media is that lawyers have been unwilling to get involved in these elections. I encourage you and your friends to get involved in this year’s judicial elections. Let your voice be heard for the candidates you believe would serve with integrity, honor and respect. You can make a difference to the public’s perception of judicial elections.

This year, the Special Committee is making an attempt to ensure that all opinions are published and made known to the candidate, their committees, the bench, the bar and the public. I plan to post other opinions. If you look back in the archives of my blog, you will see a lot of information about judicial elections. I am trying my best to educate people on judicial elections. I will certainly consider any thoughts that you may have.

You may also go to the Special Committee page on the Supreme Court website for more opinions and information. https://courts.ms.gov/Newsite2/commissions/campaignintervention.php

Thank you for your interest and participation in this year’s judicial elections.

Please don’t hesitate to contact me if you would like for me to speak to your bar association or community organization about judicial elections.

A few tidbits about 2018 judicial elections

Let me share a few facts with you about this year’s judicial elections.

  • There are 146 judicial positions available.
  • 36 incumbents chose to retire or not seek reelection – 25%
  • 95 judicial positions are not contested – 65%
  • 51 judicial positions are contested, by 136 candidates – 35%
  • 15 incumbent judges were challenged – 10%

Do we really have a “elected” judiciary?  Probably not.  It’s more like a hybrid appointed and elected judiciary.

When you consider that (a) 5 of the 9 Supreme Court Justices were initially appointed, (b) 6 out of 10 COA Judges were initially appointed, and (c) 65% of judges are not opposed,  I am of the opinion that the argument that Mississippi’s judicial elections are too political is not necessarily true.

 

 

“Essential”

The Faculty Lounge had an interesting post about Justice Scalia’s view of arbitrary rules.  I found this particularly interesting because I like to walk when I play golf.  Justice Scalia spent a lot of time in Mississippi but he never tried to walk and play golf here in July, August or September.  It’s hot!  Enjoy the article.

Scalia’s Dissent in PGA Tour, Inc. v. Martin

In 2001 the Court heard the case of PGA Tour, Inc. v. Martin, which arose from an unusual lawsuit by Casey Martin, a professional golfer. Martin suffered from a degenerative circulatory disorder that atrophied his right leg and eventually prevented him from walking 18-hole golf courses. Accordingly, he brought suit to force the Professional Golfers Association Tour to permit him to ride a golf cart rather than walk from hole-to-hole, as PGA rules required.

In a 7-2 decision written by Justice Stevens, the Supreme Court ruled in favor of the golfer, holding that “the walking rule is at best peripheral to the nature of petitioner’s athletic events, and thus it might be waived in individual cases without working a fundamental alteration” to professional golf tournaments.

But in a dissent joined by Justice Thomas, Justice Scalia took the majority to task for exercising “a benevolent compassion that the law does not place it within our power to impose.” After rejecting the notion that the Americans with Disabilities Act even applied to a professional golfer, Scalia emphasized the inherently arbitrary nature of sports rules.

In the world of sports, he explained, “[t]he rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone—not even the Supreme Court of the United States—can pronounce one or another of them to be ‘nonessential’ if the rulemaker (here the PGA TOUR) deems it to be essential.

Surveying the world of sports, Scalia concluded that the Court was on a fool’s errand in attempting to determine the “essential” elements of any sport:

“Either out of humility or out of self-respect . . . the Court should decline to answer this incredibly difficult and incredibly silly question. To say that something is ‘essential’ is ordinarily to say that it is necessary to the achievement of a certain object. But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a game’s arbitrary rules is ‘essential.’”

The crucial point, Scalia emphasized, was that all sports-related rules evolved from arbitrary traditions:

“Eighteen-hole golf courses, 10-foot-high basketball hoops, 90-foot baselines, 100-yard football fields—all are arbitrary and none is essential. The only support for any of them is tradition and (in more modern times) insistence by what has come to be regarded as the ruling body of the sport.”

In Justice Scalia’s view, therefore, it was up to the PGA Tour and not the Supreme Court to decide whether walking was an “essential” element of the game of golf.

The Mississippi Bar Names Award Recipients

2018 Award Recipients Named

At its April meeting, the Bar’s Board of Commissioners unanimously approved the recommendations of the Awards Committee.   Congratulations to the 2018 award recipients: Distinguished Service Award – Gwen Combs, Hattiesburg; Judicial Excellence Award – Judge Jerry G. Mason, 12th Chancery Court District; and Lifetime Achievement Award – Constance Slaughter-Harvey, Forest. The awards will be presented at the Farewell Brunch during the Annual Meeting on July 14.

The Mississippi Bar Annual Meeting starts today

The schedule is fairly bare bones.  I can’t find any information on the website about who are the speakers and the CLE presenters.

WEDNESDAY, JULY 1 1 , 2018
12:00 – 7:00 PM Lawyers’ Marketplace
12:00 – 8:00 PM Registration Desk Open
6:30 – 8:00 PM Welcome Reception

THURSDAY, J ULY 12, 2018
7:30 AM – 1:00 PM Registration Desk Open
8:00 AM – 12:30 PM Lawyers’ Marketplace
8:00 – 9:00 AM Breakfasts:
• Christian Legal Society Prayer Breakfast
• Fellows of the Young Lawyers
• MS Chapter American Board of Trial Advocates Meeting
• MS State Alumni Breakfast
8:30 – 9:30 AM Judicial CLE Session
9:30 – 10:30 AM General Assembly – PRESENTED BY THE FEDERAL JUDICIARY
9:30 – 10:30 AM Appellate, Circuit, Chancery and County Judges
Conferences
9:30 – 10:30 AM Sandcastle/Sand Sculpture Contest

10:00 – 11:00 AM CLE Session
10:00 AM – 12:00 PM CLE Sessions:
• Business Law
• Health Law
• Government Law
• Prosecutors
• Gaming Law
• Alternative Dispute Resolution
10:30 AM – 1:00 PM U.S. District Court Judges Meeting
10:45 AM – 12:00 PM MS Conference of Judges
12:00 – 1:30 PM 20th Annual Price-Prather Luncheon
1:00 – 6:00 PM Golf Tournament
2:30 – 4:30 PM Bingo
4:30 – 6:00 PM Young Lawyers Division Board Meeting

FRIDAY, JULY 13, 2018
7:15 – 8:15 AM Legal Runaround / 5K and Fun Run
7:30 AM – 1:00 PM Registration Desk Open
8:00 – 9:00 AM Young Lawyers Division General Assembly
8:00 – 9:00 AM Breakfast:
• Breakfast with the Federal Judges
8:00 – 11:00 AM Lawyers’ Marketplace
8:30 – 9:15 AM Kite Decorating
9:15 – 10:15 AM Annual Business Session
10:15 – 11:15 AM CLE Session
10:15 AM – 12:15 PM CLE Sessions:
• Workers’ Compensation
• Labor & Employment Law
• Estates & Trusts
• Taxation
• Family Law
• SONREEL Section
• Litigation
• Appellate Practice
• Real Property
12:15 – 1:30 PM Law Alumni Luncheons:
• Mississippi College School of Law
• University of Mississippi Law School
2:00 – 5:00 PM Tennis Tournament
3:00 – 5:00 PM Children’s “Build-A-Bear” Party
6:00 – 7:30 PM President’s Reception

8:00 – 10:00 PM Family Beach Bash

SATURDAY, JULY 14, 2018
7:30 – 10:00 AM Registration Desk Open
9:00 – 11:00 AM Farewell Brunch & Annual Award Presentations

Federal Public Defender Position is open

Here is the announcement.

NOTICE OF VACANCY
FEDERAL PUBLIC DEFENDER
 NORTHERN AND SOUTHERN DISTRICTS OF MISSISSIPPI

The U.S. Court of Appeals for the Fifth Circuit seeks applications from all highly qualified candidates for appointment as the Federal Public Defender for the Northern and Southern Districts of Mississippi. The office is headquartered at Jackson, Mississippi.  Regular overnight travel throughout both districts is required.  The terms of appointment and reappointment are four years.

The selection process will be confidential and competitive.  The current annual salary is $164,200.  Only those persons with a law degree whose character, experience, ability, and integrity qualify them to serve in the Judicial Branch should apply.  Persons will be considered without regard to race, color, sex, religion, disability, or national origin.

Interested candidates should download the selection procedures and an application form available at http://www.ca5.uscourts.gov.  Completed applications (six copies) should be mailed to Paul Benjamin Anderson, Jr., Circuit Executive, U.S. Court of Appeals, Fifth Circuit, 600 Camp Street, Room 100, New Orleans, LA, 70130. THE DEADLINE FOR FILING COMPLETED APPLICATIONS IS FRIDAY, June 29, 2018.