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Special Committee Opinion 2018-27

2018-27 Opinion

The Special Committee received complaints against judicial candidates P and Q.

1. Required Statutory Language on Campaign Signs

The complaint against P alleges that his campaign signs do not have the language required by statute. In response, P’s committee stated that the signs should have included the language but that oversight was inadvertent and that it will be corrected the next time campaign signs are printed.

Mississippi Code Annotated section 23-15-1025 requires “any material is distributed by a judicial candidate or his campaign committee . . . 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. . . .” Section 23-15-897(2)(a) requires that “[n]o candidate, political committee or other person shall publish, or knowingly cause to be published, any campaign materials unless it contains the following information [t]he name of the candidate along with a statement that the message is approved by the candidate.” See Opinion 2018-25.

Based on the photograph of the campaign signs provided, the Special Committee finds that P’s signs are in violation of sections 23-15-897 and 23-15-1025. In Opinion 2018-01, the Special Committee ruled that such language was not required to be included on any such very small promotional item. Campaign yard signs should have the required disclaimer.

The Special Committee orders P and his committee to immediately place the required statutory language on all campaign signs or remove such signs from public view.

2. Sample Ballots and Democrat Newspaper Ad

The complaint against P alleges that his campaign is in violation of the restriction on partisan political campaigns. There are two similar allegations.

First, in the General Election, Democratic sample ballots were printed and distributed that show P as the preferred candidate. P was listed as the preferred candidate for Democrat voters, along with Mike Espy, David Baria, Michael Ted Evans, and others.

Second, a newspaper advertisement was placed in “The Enterprise Journal” that urged voters to “Remember to vote for the local Democratic candidates on Election Day.” It included pictures of “Democratic” candidates: Mike Espy – US Senate; David Baria – US Senate, Michael Ted Evans – Congress, and P. The advertisement stated that it was paid for by the “Pike County Democratic Party.”

Canon 5C(1) of the Code of Judicial Conduct provides that “Judges holding an office filled by public election between competing candidates . . . may, only insofar as permitted by law, . . . identify themselves as members of political parties . . . .” Further, Mississippi Code Annotated section 23-15-976 provides:

A judicial office is a nonpartisan office and a candidate for election thereto is prohibited from campaigning or qualifying for such an office based on party affiliation. [The rest of this statute was declared unconstitutional in Mississippi Republican Party v. Musgrove, 3:02CV1578WS (S.D. Miss. 2002)].

The United States Supreme Court and other federal courts have issued decisions on judicial elections.

Based on the information provided, the Special Committee does not find sufficient evidence to determine that P or his committee are in violation of the Code of Judicial Conduct or Mississippi election laws in the preparation and distribution of sample ballots, even though P was included as the preferred candidate. Nevertheless, the Special Committee orders judicial candidates, their committees and staff to cease and desist in the preparation or distribution of such sample ballots or newspaper advertisements if such includes candidates from a political party.

3. Campaign Finance Reporting – By P’s Committee

The complaint alleges P violated campaign finance reporting laws by the failure to report the expense of sample ballots and newspaper ad as an in-kind expenditure.

Mississippi Code Annotated section 23-15-805(a) requires that “[c]andidates . . . and every political committee, which makes reportable . . . expenditures in support of or in opposition to a candidate for any such office . . . shall file all reports required under this article with the Office of the Secretary of State. . . .”

Section 23-15-807(a) requires candidates and political committees to “file reports of contributions and disbursements in accordance with the provisions of this section. . . .” Subsection (b) requires “candidates . . . and political committees making expenditures to influence or attempt to influence voters for or against the nomination for election of one or more candidates . . . shall file . . . reports.” Subsection (d) provides:

Each report under this article shall disclose:
(i) For the reporting period . . . the total amount of all expenditures of the candidate or reporting committee, including those required to be identified pursuant to paragraph (ii) of this subsection (d) . . . .
(ii) The identification of: . . .
2. Each person or organization, candidate or political committee who receives an expenditure, payment or other transfer from the reporting candidate, political committee or its agent, employee, designee, contractor, consultant or other person or persons acting in its behalf during the reporting period when the expenditure, payment or other transfer to the person, organization, candidate or political committee within the calendar year have an aggregate value or amount in excess of Two Hundred Dollars ($200.00) together with the date and amount of the expenditure;
(iv) In addition to the contents of reports specified in paragraphs (i), (ii) and (iii) of this subsection (d), each political party shall disclose: . . .
1. Each person or political committee who makes a contribution to a political party during the reporting period and whose contribution or contributions to a political party within the calendar year have an aggregate amount or value in excess of Two Hundred Dollars ($200.00), together with the date and amount of the contribution;
2. Each person or organization who receives an expenditure or expenditures by a political party during the reporting period when the expenditure or expenditures to the person or organization within the calendar year have an aggregate value or amount in excess of Two Hundred Dollars ($200.00), together with the date and amount of the expenditure;
. . .

First, the complaint contends that P’s campaign failed to report the expenditures for the sample ballots and the newspaper advertisement as in-kind contributions. The Special Committee does not have sufficient evidence to determine that P or his committee had knowledge of the preparation and distribution of the sample ballots or the newspaper advertisement. As such, the Special Committee does not find P or his committee had a reporting requirement for such third-party expenditures.
Second, the complaint contends that P’s campaign failed to properly report expenditures for media purchases. Specifically, the complaint alleges that P’s committee failed to report the expenditure of campaign funds on radio advertisements on WFFF-FM Columbia, MS and at WJKX-FM Laurel and Hattiesburg. P’s committee provided the following response:

[P]’s campaign has not purchased radio ads. The strategy behind selecting radio stations and placing advertisements is well outside [P]’s expertise. His campaign paid a consultant, [R] Strategies, which created, placed, and paid for the ads. The cost of creation, design, and placement was then billed by the consultant to the campaign committee, which paid the consultant. The payments to the consultant were properly reported. Simply put, the campaign did not report expenditures it did not make. The campaign paid [R] Strategies and has reported those expenditures. That is all the law requires of the campaign: it reports its expenditures, not other people’s expenditures.”

Section 23-15-807 requires that committees report contributions and expenditures. This statute was recently amended to require additional information. Subsection (d) now requires:

Each report under this article shall disclose: . . .
(ii) The identification of: . . .
2. Each person or organization . . . or political committee who receives an expenditure, payment or other transfer from the reporting candidate, political committee or its agent, employee, designee, contractor, consultant or other person or persons acting in its behalf during the reporting period when the expenditure, payment or other transfer to the person, organization, candidate or political committee within the calendar year have an aggregate value or amount in excess of Two Hundred Dollars ($200.00) together with the date and amount of the expenditure . . . .

Section 23-15-807 requires that P’s committee not only report an expenditure to R Strategies. Indeed, R Strategies was the committee’s “agent, . . . , contractor, consultant or other person acting on its behalf.” Based on the response of P’s committee, the Special Committee is of the opinion that section 23-15-807 requires the disclosure of each person or organization or political entity who “receive[d] an expenditure, payment or other transfer” from R Strategies. Thus, the Special Committee finds P’s committee in violation of section 23-15-807(d)(ii)(2) and orders P’s committee to file an accurate campaign finance report with the Secretary of State’s office within twenty-four hours of the release of this opinion and to include such information in all subsequent reports. This report should comply with section 23-15-807(d)(ii)(2) and identify each and every person, organization or political entity who “receive[d] an expenditure, payment or other transfer” from R Strategies.
4. Campaign Finance Reporting – by Others.

The complaint also alleges violation of campaign finance reporting laws by the individuals organizations or political parties’ failure to report the expense of sample ballots and newspaper advertisement.

Mississippi Code Annotated section 23-15-803 provides:

(1) Each political committee shall file a statement of organization which must be received by the Secretary of State no later than forty-eight (48) hours after . . . (b) Having made expenditures aggregating in excess of Two Hundred Dollars ($200.00).
(2) The content of the statement of organization of a political committee shall include: (a) The name, address, officers, and members of the committee; (b) The designation of a chair of the organization and a custodian of the financial books, records and accounts of the organization, who shall be designated treasurer; and (c) If the committee is authorized by a candidate, then the name, address, office sought and party affiliation of the candidate.
. . .
(4) In addition to any other penalties provided by law, the Mississippi Ethics Commission may impose administrative penalties against any political committee that fails to comply with the requirements of this section in an amount not to exceed Five Thousand Dollars ($5,000.00) per violation. The notice, hearing and appeals provisions of Section 23-15-813 shall apply to any action taken pursuant to this subsection (4). The Mississippi Ethics Commission may pursue judicial enforcement of any penalties issued pursuant to this section.

Also, Mississippi Code Annotated section 23-15-805(a) requires that “[c]andidates . . . and every political committee, which makes reportable . . . expenditures in support of or in opposition to a candidate for any such office . . . shall file all reports required under this article with the Office of the Secretary of State. . . .”

The complaint included copies of sample ballots paid for by “Espy for Senate,” “Friends of Bennie Thompson,” and “Jones County Democratic Executive Committee.” The newspaper advertisement indicated that it was paid for by “Pike County Democratic Party.” A review of the Mississippi Secretary of State’s website – Campaign Finance Filing Search does not indicate that any of these organizations or political committees have filed a required campaign finance report. The Special Committee has determined that such organizations and committees were required to file a report.

The Special Committee, by copy of this opinion, refers this matter to the Mississippi Ethics Commission to investigate and determine whether these organizations have expended more than $200 for the benefit of judicial candidate P. If so, these organizations may be prosecuted for violation of section 23-15-803 and 805.

5. False and Misleading Statements about the Candidates

The Special Committee has also received complaints against Q and P alleging that each candidate has made and continues to make false and misleading statements about the other.

Canon 5(A)(3)(d)(iii) 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.”

There are allegations that each candidate has published or distributed false or misleading campaign material and social media posts.

The complaint against P’s campaign complains of a message that “Experience Matters.” The message then indicates that P has had 77 cases ruled on by the Mississippi Supreme Court and Court of Appeals, while Q has had 1 case ruled on by the courts. Other material argues that P has “more than 8 times the experience of” Q. Q’s campaign argues that these claims are simply false. Instead, Q has an extensive record of “cases ruled on by the Mississippi Supreme Court and Court of Appeals.” In fact, he claims “more than 119 cases.” The complaint asks that the Special Committee intervene and require P to accurately account for Q’s experience or to remove these erroneous references to appellate experience and refrain from misleading voters in a similar fashion going forward.

The complaint against Q’s campaign complains that he has a comparison chart that is “intentionally deceptive” and measures “apples to oranges” because it indicates:

                                                  Q                      P
Cases Decided on Appeal   119                   75

              Cases Affirmed                     81.5%               22%

P’s campaign has submitted a graphic to the Special Committee that states:

Experience matters. Number of appeals litigated at the Mississippi Supreme Court and the Mississippi Court of Appeals.

77 appeals                   1 appeal
P                             Opponent

Each candidate has decided how to use data and information to establish their claim to be “most qualified.” In fact, the two candidates have a different type of experience – P advocates that he has had more cases on appeal, and Q advocates he has had more success on appeal. The Special Committee is of the opinion that the candidates have a First Amendment right to select their message to the voters. Further, the Special Committee lacks sufficient information to determine the truth or falsity of such claims. Therefore, the Special Committee declines to take action on either of these allegations.

6. Improper Statements by the Candidates

The complaint against Q alleges that there were improper statement in recent Facebook posts. The complaint asserts that it was improper for the Q campaign to use the following terms:

• “The Choice: Conservative or Liberal on November 27th.”
• P “opposes 2nd Amendment rights.”
• Q is “Conservative” and is:
1. Endorsed by business and conservatives,
2. Former Republican Councilman,
3. Pro Family, and
4. Avid Hunter and Outdoorsman.
∙ This is contrasted P who is listed as “Liberal” and he:
1. Supported Barack Obama,
2. Supported Hillary Clinton,
3. Abortion Defender, and
4. Attacked and opposed 2nd Amendment Rights.

The complaint argues that this post is intentionally misleading and deceptive in violation of Canon 5A(3)(d)(iii). As to the statement that P “opposes 2nd Amendment rights,” the complaint alleges it is an unsupported falsehood and it violates Canon 5(C)(3)(d)(iii). Yet, the complaint provided no information from P that would support the complaint.

The complaint also contends that Q’s statements that he is “Conservative,” is endorsed by business and conservatives, a former Republican Councilman, Pro Family, and an avid hunter and outdoorsman, as contrasted by P who is listed as “Liberal”, “Supported Barack Obama,” “Supported Hillary Clinton,” an “Abortion Defender,” and “attacked and opposed 2nd Amendment right, violates the non-partisan requirement of judicial elections and appears to commit Q to a position regarding a case or issue that is likely to come before the Mississippi Court of Appeals.

Canon 5C(3)(d) provides that a candidate for judicial office shall not: “(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or (iii) knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent.” The Commentary adds:

Section 5A(3)(d)(i) prohibits a candidate for judicial office making pledges or promises to decide cases in any particular way and statements committing the candidate with respect to cases, controversies or issues likely to come before the court on which the candidate will serve if elected. This section does not prohibit or limit a candidate’s freedom to announce the candidate’s current views on issues so long as the announcement does not bind the candidate to maintain those views after election. See Republican Party of Minn. v. White, 536 U.S. 765 (2002) (declaring unconstitutional restrictions in the Minnesota Code of Judicial Conduct on the announcement of views on legal and political issues.) The comparable offending language, referred to as the “announce clause”, formerly appeared in our Code of Judicial Conduct, but was removed with the revision of the code on April 4, 2002. . . .
Section 5A(3)(d)(ii) prohibits a candidate for judicial office making statements that appear to commit the candidate regarding cases, controversies or issues likely to come before the court. As a corollary, a candidate should emphasize in any public statement the candidate’s duty to uphold the law regardless of the candidate’s personal views. . . .

Section 5A(3)(d) applies to any statement made in the process of securing judicial office . . . See also Rule 8.2 of the Mississippi Rules of Professional Conduct. Phrases such as “tough on crime,” “soft on crime,” “pro-business,” “anti-business,” “pro-life,” “pro-choice,” or in any similar characterizations suggesting personal views on issues which may come before the courts, when applied to the candidate or an opponent, may be considered to be prohibited by Section 5A(3)(d) only when used in a context which contain a pledge or promise to decide cases in a particular manner.

The Special Committee is of the opinion that the claims made in the Facebook post are protected speech under the First Amendment. Further, the Special Committee is of the opinion that the issues relating to abortion and the 2nd Amendment are not pledges or promises to decide cases in any particular way or statements committing the candidate with respect to cases, controversies or issues likely to come before the Court of Appeals.

As to the statement that Q claims to be a “Republican” Councilman, the Special Committee issued Opinion 2018-10 where the Special Committee determined that it was a true and accurate statement of a position that the Candidate previously held. Here, the statement is allowed under Opinion 2018-10.

________________________________________________________________________

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 2018-26

2018-26 Opinion

The Special Committee received a complaint against judicial candidate O.

I. Allegations of Complaint

The complaint alleges that O has campaigned using the title “Judge” on his signs, on Facebook, in the newspaper, which the candidate has to provide the photograph to be used, on push cards, mail outs, billboards and has had himself introduced at speaking engagements as “Judge [O].” These are all done without clear explanation, or in some cases, no explanation or clear identification that he is not a Circuit Court Judge but is a municipal judge. Candidate O has also posted pictures on his campaign website and Facebook page, along with appearing in a robe seated at the Circuit Court bench without identifying that he is a City Judge and not a Circuit Judge.

The complaint alleges that O has a Facebook page titled “Judge [O],” and includes copies of several campaign materials:

a. A May 15th Facebook post that states “Let me continue to serve as your next circuit court judge.”

b. Signs that read “Judge O.”

c. A photograph of O in a robe seated on a courtroom bench.

d. A September 25th Facebook post that includes a sample ballot with O’s name marked, and the statements:
• Military Service
• Judicial Experience
• Family Values

e. Several Facebook posts from “Judge [O].”

The complaint alleges that O is in violation of Code of Judicial Conduct Canon 5A(3)(d)(iii) which prohibits a candidate for judicial office from knowingly misrepresenting his “qualifications, present position, or other fact concerning the candidate.” And, the complaint alleges that O has blatantly disregarded the Code of Judicial Conduct and the rulings of the Special Committee.

Specifically, the complaint alleges that O is in violation of Special Committee Opinions 2018-06, 2018-09, and 2018-17.

II. Candidate’s Response

In response, O argues that the May 15th Facebook post was a photo of me in uniform returning from the war. My campaign is based on service. Service as a Judge, Service as a Deacon in Church, Service as a Soldier. This photo caption reads “Let me continue to serve as your next Circuit Court Judge.” Clearly the word “Next” indicates to the audience that I am asking to be the “next” Circuit Court Judge. If I had said, let me continue to serve as “circuit court Judge” it would be a problem. The photo is of a man who has served his country and now wants to serve “as your next Circuit Court Judge.”

III. Findings.

A. May 15th Facebook Post

The Special Committee has considered the May 15th Facebook post. The Special Committee is concerned that the candidate’s statement “Let me continue to serve as your next Circuit Court Judge” may be interpreted in such a manner as to be confusing to voters. Canon 5A(3)(d)(iii) prohibits a candidate for judicial office from knowingly misrepresenting his “qualifications, present position, or other fact concerning the candidate.” However, the candidate has confirmed to the Special Committee that this statement will not be used again in this election.

Therefore, due to the length of the delay between the post and the complaint and the commitment from the candidate, the Special Committee has determined that it will take no action on this complaint.

B. Use of “Judge [O]” on Facebook and Campaign Materials

The 2018 Special Committee and prior Special Committees have instructed judicial candidates who hold another judicial office as to how the candidate and his/her committee may properly use the title “judge” in campaign materials.

In Opinion 2006-002, the Special Committee opined:

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.

This ruling was reaffirmed in a 2006 Public Statement, Opinion 2014-01, a 2014 Public Statement, Opinion 2018-06, and Opinion 2018-09. Indeed, the Special Committee has reaffirmed the statement in Opinion 2010-02 that “[t]he use of the title [“judge”] 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.”

The Special Committee has reviewed the campaign materials submitted in the complaint, the response provided by O, and the campaign Facebook page. The Special Committee finds that O’s use of the phrase “Judge [O]” on his Facebook page, campaign signs, and campaign materials is in a violation of Canon 5A(3)(d)(iii) of the Code of Judicial Conduct which provides that “[a] candidate for judicial office shall not knowingly misrepresent the identity, qualifications, present position or other fact concerning the candidate. . . .” and the Special Committee opinions cited above.

The Special Committee orders the candidate and his committee immediately cease and desist the use of the phrase “Judge [O]” on Facebook and campaign materials. The candidate has already changed his Facebook page to remove this statement. The Special Committee orders that the candidate and his committee have until Wednesday, November 21, 2018 at 5:00 p.m. to remove any sign that has this language or to replace the signs or materials with the appropriate language.

The Special Committee instructs the candidate and his committee that the phrase “Judge [O]” may only be used if the such materials clearly identify the circumstances justifying the use of the title and identify the proper title of the position actually held.

C. Use of Photograph in Judicial Robe

In Opinion 2018-17, the Special Committee issued an opinion as to “whether a current municipal judge, who is running for chancery judge, may film a commercial with the Judge in a robe on the bench when court is not in session.” The Special Committee cited Opinion 2014-01 and concluded that “a current municipal judge, who is running for chancery court judge, may film a commercial that depicts the candidate in a judicial robe if, as required by Canon 5A(3)(d)(iii), the candidate clearly explains the judicial role of the position the candidate held.”

The Special Committee also finds that the candidate and his committee have failed to comply with Opinions 2018-17 and 2014-01 because the use of the candidate’s photograph in a judicial robe does not “clearly explains the judicial role of the position the candidate held.” On the Facebook page, there are two photographs of the candidate in a judicial role. If the viewer clicks on one photograph, it simply says he is a “Judge” in “[_____] MS;” “[_____] (Pro Tem);” and “[_____] (Pro Tem).” There is no explanation that he is a “Municipal” Judge. If the viewer clicks on the second photograph, the viewer must read a significant amount of information before it is explained that the candidate is in fact a “Municipal” Judge.

The Special Committee orders that the candidate and his committee immediately cease and desist the use of any photographs of the candidate in a judicial robe or with the title Judge without a clear explanation of the judicial role of the position held. The candidate must be identified as a Municipal Judge as part of any photograph or in a caption immediately below the photograph.

Special Committee Member Tom Wicker recused from this opinion and did not participate.

________________________________________________________________________

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

Chief Justice Bill Waller Jr. to retire January 31, 2019

Congratulations Mr. Chief Justice.  It was a pleasure to work with you.  I wish you the best in your retirement.

This is the Mississippi Supreme Court’s official press release.

Chief Justice William L. (Bill) Waller Jr. announced today that he will retire on January 31, 2019.

Retired Chancellor W. O. “Chet” Dillard

Chief Justice Waller said, “I have elected to tender my resignation and retire from public service effective January 31, 2019, completing more than 21 years of service on the Mississippi Supreme Court and 10 years as Chief Justice. It has been my highest privilege to be elected as a Justice of the Supreme Court and serve as Chief Justice of Mississippi.”

Chief Justice Waller was elected in November 1996 and took office in January 1998. He was re-elected in 2004 and 2012. He was a presiding justice for five years. He became Chief Justice in January 2009.

At age 66, he enjoys good health. “It’s just time,” he said.

The Governor will appoint a Justice to the District 1, Place 1 position on the court. The next election for the seat is in November 2020, and the next eight-year term will begin in January 2022. The position is one of two seats on the court with a 14-month delay between the election and the beginning of a new term.

Mississippi Code Section 9-3-11 says that the justice who has served longest on the court shall be Chief Justice. Presiding Justice Michael K. Randolph of Hattiesburg, who joined the court in April 2004, is the second longest serving justice on the court after Chief Justice Waller.

Upon retirement from the court, Chief Justice Waller plans to become a senior status judge and remain active in Access to Justice and other administration of justice endeavors. He would like to teach as an adjunct professor at the University of Mississippi School of Law and Mississippi College School of Law. He previously taught pretrial practice at both law schools.

He has been a champion of meaningful access to the courts for all people. At his urging, free family law clinics for the poor have been held in every chancery court district in the state, with the largest number held in June. More than 1,000 hours of free legal assistance were provided to more than 600 clients through the work of more than 330 attorneys.

His early priorities as Chief Justice included expanding drug courts to all 22 circuit court districts, which was accomplished in 2012. Drug courts have proven records of restoring sobriety, saving money on incarceration and reducing recidivism. At the end of FY 2018, there were 3,283 people enrolled in felony drug courts, saving the state millions of dollars in incarceration expenses. The 482 people who graduated from drug courts this past fiscal year are much more likely to successfully re-enter society than those released from the general prison population. Also during this past fiscal year, 57 drug-free babies were born to drug court participants, 122 parents regained custody of their children, 108 obtained GEDs and 943 became gainfully employed.

Chief Justice Waller has sought to bring about reforms in the administration of justice through legislation and rule changes. He led the adoption and development of the Mississippi Electronic Courts (MEC) e-filing system. The source code for the MEC system was secured from the U.S. Administrative Office of Courts without cost to the taxpayers, and Mississippi is today the only state authorized to use the program developed by the federal courts. All development and code modifications have been accomplished in-house. Today more than 5,400 attorneys are registered for MEC and are conducting court business via e-filing in 58 counties in chancery courts, 23 counties in circuit courts and in 11 county courts. By the end of January, more than 80 percent of the Mississippi population will be covered by MEC in chancery courts and 50 percent of the Mississippi population will be covered in circuit courts. Appellate e-filing began at the Mississippi Supreme Court and Mississippi Court of Appeals in 2014. In 2018, MEC began using servers in the Supreme Court Courthouse for processing and storage of trial and appellate court records, which was critical to support the secure, 24/7 operating environment required by court rules. Chief Justice Waller led efforts which gained legislative approval for the equipment and facility renovation.

Chief Justice Waller served as a member of the Criminal Rules Committee which, under the leadership of former Justice Ann Lamar, studied and prepared the Mississippi Rules of Criminal Procedure that were adopted unanimously by the Supreme Court. The new criminal rules went into effect in July 2017. For the first time in the history of the state, every aspect of criminal proceedings, from arrest to post-trial motions, was covered in one comprehensive set of rules.

He was principal architect of legislation which created the Office of Capital Post-Conviction Counsel, the Office of Indigent Appeals, and the Comprehensive Electronic Court System Fund that provides funding for MEC. Most recently, he provided leadership for the creation of a second county court judgeship for Lee County, primarily to address an overwhelming caseload in Youth Court. This was approved by the Lee County Board of Supervisors and adopted by the Legislature. He has supported funding for parent representation in Youth Court that has proven effective in reducing foster care placements.

Chief Justice Waller has worked to make sure that the Judiciary is adequately funded and staffed and has adequate facilities. He provided leadership to the passage by the Legislature of the historic Judicial Compensation Reform Act of 2012. This promoted judicial independence by requiring independent review of judicial compensation every four years. Additionally, the pay raise was funded from sources independent of general fund appropriations. He was a member of the Building Committee that oversaw the funding, placement and construction of the Mississippi Supreme Court Courthouse in the design inspired by former Chief Justice Lenore Prather. The Courthouse was dedicated in 2011with former U.S. Supreme Court Justice Antonin Scalia providing the keynote address at the dedication ceremony. Chief Justice Waller has spoken to local boards of supervisors to encourage courthouse upkeep, renovations and security.

One of the highlights of his tenure as Chief Justice was joining the Mississippi Bar and the two law schools in the state to commemorate the Bicentennial of Mississippi’s Judiciary and Legal Profession on Sept. 27, 2017. This included the participation of the Chief Justice of the United States, John G. Roberts, Jr., the third U.S. Chief Justice to visit Mississippi since statehood.

He is the eldest son of the late Gov. Bill Waller, Sr., and the late Carroll Overton Waller. He was in private law practice in the firm of Waller and Waller in Jackson from 1977 to January 1998. He served as municipal judge for the city of Jackson from January 1995 until July 1996.

A graduate of the U.S. Army War College, he completed 30 years of service in the Mississippi Army National Guard, attaining the rank of Brigadier General while serving as Commander of the 66th Troop Command.

He is a native of Jackson, an Eagle Scout and a graduate of Murrah High School. He received his undergraduate degree in general business with emphasis in finance, tax and insurance from Mississippi State University in 1974. He received his law degree from the University of Mississippi School of Law in 1977. Mississippi College School of Law conferred an honorary Doctor of Law degree upon him in 2012.

Chief Justice Waller and his wife, Charlotte, have three adult children. They are members of First Baptist Church Jackson.

Special Committee Opinion 2018-25

2018-25 Opinion

The Special Committee on Judicial Election Campaign Intervention received a complaints filed by against Candidate G.

The Complaint alleges that campaign signs for Candidate G fail to have the required disclaimer.

Candidate G responded that he had been made aware of the missing disclaimer earlier this month, and his Committee printed stickers with the verbiage “Paid for the Committee to Elect Stan G and approved by the candidate” and placed them on approximately 600 signs remaining in our inventory. Candidate G also informed the Committee that he sent staff into the field to locate any signs that may not have had the required verbiage when they were previously placed. Candidate G admitted that he could not be “100% certain that every single sign with missing verbiage was located, but best efforts were made.” He also claims that the sign pictured in the email, was a photograph taken in his driveway, and it had a sticker with the disclaimer on the opposite side. Candidate G also added that he was not aware of a “regulation that requires the verbiage to be on both sides of the sign, but please correct me if I am mistaken.”

There are two statutes that are applicable. 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. . . .

Second, Mississippi Code Annotated section 23-15-897(2)(a) provides “[n]o candidate, political committee or other person shall publish, or knowingly cause to be published, any campaign materials unless it contains the following information [t]he name of the candidate along with a statement that the message is approved by the candidate.” . . .

The Special Committee concludes that it does not have sufficient evidence to determine whether Candidate G or his Committee has committed a violation of either of the cited statutes. The Special Committee has determined that Candidate G and his Committee have made a good faith effort to place the required disclaimer on every campaign sign. However, the Special Committee is of the opinion that section 23-15-1025 requires that “[a]ll such material shall conspicuously identify who has prepared the material and who is distributing the material.” This language requires that the disclaimer be on each side of a sign that has printed campaign related material. The Special Committee instructs Candidate G and his Committee to place the disclaimer on make a good faith effort to place the disclaimer on each campaign sign that has printed campaign material.

Also, in his response, Candidate G filed a complaint that his opponent was placing illegal signs in several cities that have ordinances that require no signs larger than 2 square feet in residentially zoned areas of the city limits. According to this complaint, Candidate F has signs of at least 18 square feet in residential areas of each of these cities.

In Opinion 2018-05, the Special Committee 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 noted 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, the Special Committee declined to act on the request for an opinion.

Here, as in Opinion 2018-05, the Special Committee has decided that the complaint failed to include sufficient information to determine whether a candidate violated a law or committed an unethical or unfair campaign practice. Therefore, the Special Committee declines to act on this complaint.

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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 2018-24

2018-24 Opinion

The Special Committee on Judicial Election Campaign Intervention received a request for an opinion and complaint filed by judicial Candidate L against Candidate M.

In the complaint, Candidate L alleges that Candidate M, who is a part-time municipal court judge, has stated “I am the only candidate in the race who is a sitting judge,” and “I am the only sitting judge who is running for this position.” These statements were reportedly made:

1. In a campaign commercial (that is currently airing on television stations and is also linked to Candidate M’s Campaign Facebook page);

2. In a newspaper interview (see _______ Article: Retirements draw packed field in Chancery __, dated October 22, 2018); and

3. In a speech to a jury venire on October 15, 2018.

Candidate L alleges that this statement is misleading because she currently serves as Special Master for Commitments in Chancery Court and a Youth Court Referee, and has served in this position for more than 9 years. Candidate L argues that her positions are judicial roles within the chancery court, and the Special Committee’s 2018-06 opinion supports her position. Thus, Candidate L argues that the statement is factually inaccurate and a violation of Canon 5A(3)(d)(iii).

In response, Candidate M asserts that the statement “only sitting judge” is correct, and it has not been used to intentionally mislead in violation of Canon 5A(3)(d)(iii). M has held the position of municipal judge for nine years. He asserts he is “currently the only sitting Judge running.” He argues that his statements are supported by Special Committee opinions 2018-17, 2018-11, and 2018-06, which cites previous opinions 2006-02, 2014-001 and Mississippi Code Annotated sections 43-21-107 and -111 for the statutory authority of a Youth Court Referee.

Canon 5A(3)(d)(iii) provides that a candidate for judicial office shall not “knowingly misrepresent the . . . qualifications, present position or other fact concerning the candidate or an opponent.” Mississippi Code Annotated section 41-21-61(a) defines “Chancellor as a chancellor or special master” for mental health/treatment commitments. Because Candidate L serves as a Special Master for mental health/treatment commitments, under section 41-21-61(a), she may be considered to be a “judge,” and she may use the term “judge” in this campaign. The Special Committee declines to find that Candidate M “knowingly misrepresent[ed]” Candidate L’s qualifications or present position. However, based on this opinion, the Special Committee instructs Candidate M to no longer claim to be the “only sitting judge” in the campaign.

________________________________________________________________________

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