Special Committee Reports and Opinions
2014 OPINION 2014-001
Canon 5A(3)(d)(iii) of the Mississippi Code of Judicial Conduct prohibits a candidate for judicial office from knowingly misrepresenting his/her “qualifications, present position, or other fact concerning the candidate … .” The Special Committee has previously opined that a candidate who holds another judicial office may use the title “judge” in campaign literature if the material clearly identifies the circumstances justifying the use of the title and identifies the judgeship currently held. See Special Committee Opinion 2006-002. This opinion also provides that phrases and logos must contain such phrases as “elect” before a candidate’s name and “for” between the candidate’s name and position sought, in an easily readable size and form, in those circumstances in which the candidate does not hold the judicial office sought. Id.
All candidates for judicial office are held to a high standard of accuracy in their campaign advertisements. Judicial robes, often used by candidates in judicial campaign materials, are a widely recognized symbol of judicial office. Like the use of the term”judge,”the depiction of a candidate wearing a judicial robe may be misleading in certain circumstances. For example, the depiction of a candidate wearing a robe when he/she currently holds no judicial office and has never held judicial office misrepresents the candidate’s present position and violates Canon 5A(3)(d)(iii). Furthermore, in those instances in which a sitting judge seeks a different judicial office or a former judge seeks judicial office, the depiction of the candidate wearing a judicial robe may also imply that the candidate currently holds the office sought. Therefore, the Special Committee is of the opinion that while a candidate who presently holds or previously held a judicial office may be depicted in campaign materials wearing a judicial robe, the advertisements must also clearly identify the office currently or previously held in an easily readable size and form, such that the materials will not mislead the voter as to the candidate’s present position.
From Minutes of Special Committee Meetings
October 31, 2014
The Special Committee on Judicial Election Campaign Intervention issued a public statement today regarding advertising material circulated by S0\1th Forward IE PAC which attempts to impact the race for Circuit Court Judge of Hinds County, Mississippi.
The Special Committee said:
Print material circulated by an organization calling itself South Forward IEPAC in support of a candidate for Circuit Court Judge of Hinds County has been brought to the attention of the Special Committee. Mississippi law prohibits a candidate for Judge of the Supreme Court, Court of Appeals, Circuit Court or Chancery Court Judge from aligning himself with any candidate or candidates for any other office or with any political faction or any political party at any time during any primary or general election campaign.
Mississippi law requires that campaigns for judicial office shall be nonpartisan and without any connection to a political party, political parties and any committee or political committee affiliated with a political party. The Committee finds that the materials in question improperly align a candidate for Circuit Court Judge with a candidate for another political office and violate the intention that judicial campaigns for Circuit Court Judge shall be nonpartisan.
The Mississippi Supreme Court created the Special Committee on Judicial Election
Campaign Intervention in its 2002 revisions to the Code of Judicial Conduct. The five member Special Committee investigates allegations of campaign misconduct. Members are appointed by the Chief Justice of the Supreme Court, the Governor, the Lieutenant Governor, the Speaker of the House of Representatives and the Chair of the Commission on Judicial Performance.
Ali ShamsidDeen, a candidate for Circuit Court Judge of Hinds County, Mississippi, has, in the view of the Special Committee, violated Canon 5A(3)(d)(iii) of the Code of Judicial Conduct by the use of campaign material which is misleading and implies that he is
the incumbent Circuit Court Judge.
ShamsidDeen currently serves as a municipal court judge. Some of his campaign materials use the terms “Judge” without identification that the position held is municipal judge. This candidate also presents himself in a judicial robe without identifying what judgship he holds. This candidate was previously sent a copy of Opinion 2006-002 issued by the Special Committee on Judicial Election Campaign Intervention which provides that any campaign material “must clearly identify the circumstances justifying use of the title, including identifying the judgeship currently held. The use of the title cannot be misleading, cannot misrepresent the candidate’s present position, and must make it clear to the voting public that the candidate is not a judge of the court for which the candidate is currently seeking election.” The same prohibition applies to a candidate pictured in a judicial robe without identification of the judicial office held.
The Special Committee found the campaign materials to be misleading and sent Mr. ShamsidDeen a cease and desist request pursuant to Canon 5F(3)(c). It is the opinion of the Special Committee that this candidate has continued to utilize misleading campaign materials following receipt of the cease and desist request, resulting in the issuance of this public statement.
The Special Committee received a complaint concerning the propriety of Paula S. Yancey’s campaign materials posted on her Facebook account and published on her campaign website. Ms. Yancey is a candidate for Mississippi District 16 Chancery Court Judge. The complaint asserted that Ms. Yancey’s campaign materials were misleading and implied that Ms. Yancey was the incumbent chancellor. After reviewing the campaign materials at issue, and following deliberation of the matter, the Special Committee unanimously found that Ms. Yancey’s Facebook account and her campaign website violated Formal Opinion 2006-002 as her materials were misleading and implied that she was the incumbent Chancery Court Judge. The Special Committee determined that the matter warranted speedy intervention and, pursuant to Canon 5F(3), issued a confidential cease and desist request requiring Ms. Yancey to cease and desist from any use of campaign materials on her Facebook account, website or other locations which do not accurately reflect her curent status as a candidate as opposed to an incumbent.
The Special Committee considered the Mississippi Secretary of State’s refetral of a self-report by Abe Hudson, campaign manager for Alecia Thomas, of a potential infraction by Ms. Thomas of Canon 5C(2) of the Code of Judicial Conduct of Mississippi Judges. The Special Committee received and reviewed a copy of a letter mailed by Ms. Thomas and/or her campaign committee wherein she personally solicited financial support for her campaign. Following discussion, the Special Committee found that the solicitation letter violated Canon 5C(2), and, furthermore, the matter warranted speedy intervention. The Members unanimously resolved to issue Ms. Thomas a confidential cease and desist notice at peril of fmther action pursuant to Canon 5F(3)(d). Ms. Ballard agreed to draft the notice (for review by the Members) to Ms. Thomas.
Judge Charlie Brett, a candidate for the office of County Court Judge for Lee County, inquired of the Special Committee, via email, as to the propriety of his attendance at a public reception and fund-raiser for the incumbent district attorney who was aligned with the Republican party. The fund-miser was not being sponsored by a political party, there was no price of admission, and all attorneys in a multi-county area were invited to attend. The Special Committee, finding the question to be of limited significance, provided Judge Brett with an informal opinion under Canon 5F(2), advising that he could attend the fund-raiser and speak on his own behalf at it, if desired; however, he was prohibited from and must refrain from publicly endorsing or aligning himself with a political party as a candidate for judicial office.
The Special Committee received and considered a complaint by Theresa Jones against Takiyah Perkins concerning Ms. Perkins’ use of a photograph in her campaign materials which depicted her standing with representatives of the District Attorney’s office for the Fom1h Judicial District. Ms. Perkins is a candidate for office of Circuit Com1 Judge, Fourth Judicial District, and the complaint asserted that since the representatives of the District Attorney’s office would regularly appear before her court, if elected, the use of the photograph constituted a violation of Canon 5.
Following review of the photographs at issue and discussion of the matter, the Special Committee did not find a facial violation of the Code of Judicial Conduct and declined to intervene or take any action against Ms. Perkins.
2008 Report and Materials
Ali M. ShamsidDeen
The Special Co1mnittee considered a complaint by the Honorable Jeff Weill, Sr., Hinds County Circuit Comt Judge, against Ali M. ShamsidDeen, asserting three allegations of campaign conduct: (1) the publication of misleading campaign materials; (2) misrepresentations concerning his opponent; and (3) unethical campaign finance conduct.
(A) The Special Committee first addressed the allegations regarding Mr. SamsidDeen’s campaign materials including, but not limited to, billboards, media sites, banners and push cards. The photos embedded in the materials show Mr. ShamsidDeen in a judicial robe without clearly establishing the judicial office which he currently holds as a municipal judge. The members unanimously agreed that the campaign materials reviewed by it violated Formal Opinion 2006-002 as they were misleading and implied that Mr. ShamsidDeen is the incumbent circuit court judge. The Special Committee further determined, pursuant to Canon 5F(3) of the Code of Judicial Conduct of Mississippi Judges, that the matter wa1rnnted speedy intervention and that a confidential letter should issue directing Mr. ShamsidDeen to cease and desist from any use of his current campaign materials, billboards, website or other locations as they do not accurately reflect that he is a municipal judge seeking the office of circuit court judge.
B) The Special Committee then considered the allegations that Mr. ShamsidDeen, during a recent campaign speech, stated that his opponent had been reversed many tunes because he had been unfair” in the courtroom by trying to help the prosecution. The Special Committee unanimously agreed to write Mr. ShamsidDeen, calling his attention to Canon 5A(3)(d)(iii) and directing him to carefully review facts and information concerning his opponent and to remove from his speeches any false or untruthful statements.
C) The Special Committee next considered the allegations that Mr. ShamsidDeen had committed unethical campaign finance conduct regarding the financing of campaign billboards erected by or on behalf of Mr. ShamsidDeen. Following discussion, the Special Committee unanimously agreed that additional investigation was needed and it resolved to issue a letter to Ms. Kathy Sykes, the treasurer of Mr. ShamsidDeen ‘s campaign committee, requesting infonnation concerning the billboards and the financing of them. Mr. ShamsidDeen ‘s committee wi1t be given ten days to respond.
The Special Committee on Judicial Election Campaign Intervention issued a public statement today regarding advertising material circulated by Mississippians for Economic Progress which attempt to impact the race for the Supreme Court in the Southern District of Mississippi.
The Special Committee said:
Print material circulated by an organization calling itself, Mississippians for Economic Progress, in support of the candidacy of Judge Pierce in his race against Justice Diaz, has been brought to the attention of the Special Committee. The material in question singles out “trial lawyers” which is a common reference to lawyers who represent individual plaintiffs in lawsuits for damages. It is the view of the Special Committee that this material is inappropriate to judicial elections in that in urges partiality rather than impartiality in the judicial function. Accordingly, the use of material which speaks of “trial lawyers” pejoratively and which seeks to impact the election of judges is condemned.
Committee member Michael Wallace would not have found that these materials violate the Code of Judicial Conduct.
The Special Committee has been asked by candidates to render an advisory opinion on the use of the word ‘judge” in campaign literature if the candidate currently holds a judicial office other than the office for which he/she is a candidate. 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:
1. May a candidate who holds a judicial office other than the office for which he/she is a candidate use the title “judge”?
Canon 5A(3)(d)(iii) prohibits a candidate from knowingly misrepresenting their qualifications or present position. The Special Committee is of the opinion that a candidate who holds another judicial office may use the title “Judge” in campaign materials subject to certain limitations. The campaign material must clearly identify the circumstances justifying use of the title, including identifying the judgeship currently held. The use of the title cannot be misleading, cannot misrepresent the candidate’s present position, and must make it clear to the voting public that the candidate is not a judge of the court for which the candidate is currently seeking election.
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 m::iterial 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.
We have been asked by a candidate to render an advisory opinion. The request for opinion poses two different but related questions concerning the interpretation of the words “donor” and “major donor” as used in the Code of Judicial Conduct. These words are defined in the Code and the term “major donor” takes on significance only in the context of litigation before a sitting judge whose candidacy has received contributions from a person or entity so designated. The significance is that a party may filed a motion to compel recusal of a judge where the “opposing party or counsel of record for that party is a major donor to the election campaign of such judge. Code of Judicial Conduct, Canon 3E(2). The Code does not require recusal in that· instance. All that can be said is that having a “major donor” in the case is an appropriate circumstance in which to raise the recusal issue. The judge and, ultimately, the Supreme Court will determine whether recusal is required.
The questions put are paraphrased below:
I. Whether individual contributions of several lawyers associated with the same firm are aggregated for purposes of determining whether the firm is a major donor; and
2. Where the firm is also a contributor, whether the individual contributions made by members of the firm are aggregated with the firm’s contribution for that purpose.
The first question to be answered is whether this a request that falls within the purview of this committee. Canon 5F(2) empowers this committee to render opinions “as to the propriety of any act of conduct by a judicial candidate [or those acting on behalf of the candidate] … and as to the construction or application of Canon 5 ….
Opinions issued by this committee are advisory only but “all … regulatory and enforcement authorities shall consider reliance by a judicial candidate upon the Special
Committee opinion in any disciplinary or enforcement proceeding.”
In 2002 this committee issued the following opinion:
We have been asked for an opinion by a candidate in the following circumstances:
The candidate is seeking an office in which all candidates run at large for unnumbered posts. Those receiving the highest votes fill the number of posts available. The candidate proposes to file a motion to recuse all of the incumbent judges from matters in which he represents clients before them because they are all his FILED opponents in the race.
The committee has considered the matter and concludes that the request involves matters outside of the scope of this committee’s authority. The issue put by the motion to recuse is one of judicial conduct in on going judicial proceedings not candidate campaign conduct. The determination whether a judge should recuse in a case should be made in accordance with the rules promulgated by the Mississippi Supreme Court to wit: Rule I6A, Mississippi Rules of Civil Procedure; Rule I. I 5, Uniform Rules of Circuit and Chancery Court Practice; Rule I. I I Uniform Chancery Court Rules; and Rule 48B Mississippi Rules of Appellate Procedure.
Similarly, the questions presently put to us may be viewed as not involving the propriety of campaign conduct. Rather they involve conduct which may have a bearing upon subsequent judicial conduct. They involve campaign policies which may have consequences quite aside from whether they are deemed proper or improper. This is not unlike other campaign choices.
The choice of a campaign manager or treasurer or finance chair, for example, may engender a later request for recusal in matter involving that person. The present circumstance is that the decision to accept or not accept contributions from individuals associated with a particular firm and/or the firm may result in a similar request for recusal. Viewed in this way, the questions are beyond our purview.
Another consideration is the ultimate consequence of a decision by this committee. Its function is to provide some measure of comfort to the candidate contemplating conduct which, if viewed in a particular way, might subject the candidate to sanctions .. Recusal, however, is not a sanction. It should have no impact upon the candidate who becomes a judge. Its only impact, if any at all, would be felt by the parties. Those most in need of an answer to the questions posed then, are not so much the candidates but the prospective contributors to the candidate.
Contributors may be viewed as “independent person[s] … conducting activities which impact on the election…. As such we may issue opinions upon the propriety of their acts. But still , recusal of a judge should not be viewed as a sanction for misconduct. While recusal may be a consequence of their acts that consequence does not tum on a question of “propriety.” Recusal will only be required if, in the overall context of the circumstances presented, including whether a party is a major donor, it appears that the judge’s impartiality might objectively be questioned by a reasonable observer. Given that the issue involves the rights of more than one party it is difficult to see how this Committee’s opinion might be given any effect.
Based upon the foregoing, we conclude that the answers to these questions are beyond the purview of this committee. We are the only body empowered to answer this question on an advisory basis. But, any person may petition the Supreme Court for an order clarifying the rule.
In recognition of the fact that these are important questions, the answers to which are unclear, we will send a copy of this opinion to the Supreme Court and urge that it consider clarifying the Code on this issue.
2006 Public Statement
Pursuant to Canon 5F(3)(d) of the Code of Judicial Conduct, the Special Committee on Judicial Election Campaign Intervention herein releases the following public statement:
Richard Redfern, a candidate for Chancery Court Judge in the 20th Chancery Court District (Rankin County) has, in the view of the Special Committee, violated Canon 5A(3)( d)(iii) of the Code of Judicial Conduct by the use of campaign material which is misleading and implies that he is the incumbent Chancery Court Judge.
Redfern currently serves as a Rankin County Justice Court Judge and as Special Master in the Chancery Court. His campaign materials use the terms “Judge Richard Redfern Chancery Court” and “Elect Judge Richard Redfern Chancery Court Judge”.
Redfern was previously sent a copy of Opinion 2006-002 issued by the Special Committee on Judicial Election Campaign Intervention which provides that any campaign material “must clearly identify the circumstances justifying use of the title, including identifying the judgeship currently held. The use of the title cannot be misleading, cannot misrepresent the candidate’s present position, and must make it clear to the voting public that the candidate is not a judge of the court for which the candidate is currently seeking election.”
The Special Committee found Redfern’ s campaign materials to be misleading and on September 12, 2006 sent Redfern a cease and desist request pursuant to Canon 5F(3)(c). It is the opinion of the Special Committee that Redfern has continued to distribute misleading campaign materials following receipt of the cease and desist request, resulting in the issuance of this public statement.
The Special Committee on Judicial Election Campaign Intervention (“Special Committee’) has been asked to advise whether soliciting donations on a campaign website are permitted where the solicitations are made by the campaign committee chair(s).
The Special Committee concluded that website solicitation in the name of the campaign committee chair(s) does not violate the prohibitions against personal solicitation of contributions by the candidate.