Canon 5 A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity

A. All Judges and Candidates

(1) Except as authorized in Sections 5B(2), 5C(1) and 5C(2), a judge or a candidate for election to judicial office shall not:

(a) act as a leader or hold an office in a political organization;

(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other political functions.

Commentary

A judge or candidate for judicial office retains the right to participate in the political process as a voter.

Where false information concerning a judicial candidate is made public, a judge or another judicial candidate having knowledge of the facts is not prohibited by Section 5A(1) from making the facts public.

Section 5A(1)(a) does not prohibit a candidate for elective judicial office from retaining during candidacy a public office such as county prosecutor, which is not "an office in a political organization."

Section 5A(1)(b) does not prohibit judges or judicial candidate from privately expressing their views on judicial candidates or other candidates for public office.

A candidate does not publicly endorse another candidate for public office by having that candidate's name on the same ticket. However, Sections 23-15-973 et seq.,

Miss. Code Ann. (1972) impose restrictions on candidates and political organizations to assure the non-partisan quality of judicial elections for Supreme Court, Court of Appeals, Chancery Court, Circuit Court and County Court justices and judges.

(2) A judge shall resign from judicial office upon becoming a candidate either in a party primary or in a general election for a non-judicial office, except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so.

(3) A candidate for a judicial office:

(a) shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall encourage members of the candidate's family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate;

Commentary

Although judicial candidates must encourage members of their families to adhere to the same standards of political conduct in support of the candidates that apply to the candidates, family members are free to participate in other political activity. Family members are not prohibited by this subsection from serving on the candidates’ campaign committees and otherwise actively involving themselves in the campaigns.

(b) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate's direction and control, from doing on the candidate's behalf what the candidate is prohibited from doing under the Sections of this Canon;

(c) except to the extent permitted by Section 5C(2), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon;

(d) 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;

Commentary

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. This Section does not prohibit an incumbent judge from making private statements to other judges or court personnel in the performance of judicial duties.

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. See also Section 3B(9), the general rule on public comment by judges. Section 5A(3)(d) does not prohibit a candidate from making pledges and promises respecting improvements in court administration.

Section 5A(3)(d) applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment. 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.

[Commentary amended effective February 26, 2004.]

(e) may respond to personal attacks or attacks on the candidate's record as long as the response does not violate Section 5A(3)(d).

B. Candidates Seeking Appointment to Judicial or Other Governmental Office.

(1) Candidates for appointment to judicial office or judges seeking other governmental office shall not solicit or accept funds, personally or through a committee or otherwise, to support their candidacies.

(2) A candidate for appointment to judicial office or a judge seeking other governmental office shall not engage in any political activity to secure the appointment except that:

(a) such persons may:

(i) communicate with the appointing authority, including any selection or nominating commission or other agency designated to screen candidates;

(ii) seek support or endorsement for the appointment from organizations that regularly make recommendations for reappointment or appointment to the office, and from individuals to the extent requested or required by those specified in Section 5B(2)(a); and

(iii) provide to those specified in Sections 5B(2)(a)(i) and 5B(2)(a)(ii) information as to the candidate’s qualifications for the office;

(b) a non-judge candidate for appointment to judicial office may, in addition, unless otherwise prohibited by law:

(i) retain an office in a political organization,

(ii) attend political gatherings, and

(iii) continue to pay ordinary assessments and ordinary contributions to a political organization or candidate and purchase tickets for political party dinners or other political functions.

Commentary

Section 5B(2) provides a limited exception to the restrictions imposed by Sections 5A(1) and 5D. Under Section 5B(2), candidates seeking reappointment to the same judicial office or appointment to another judicial office or other governmental office may apply for the appointment and seek appropriate support.

Although under Section 5B(2) non-judge candidates seeking appointment to judicial office are permitted during candidacy to retain office in a political organization, attend political gatherings and pay ordinary dues and assessments, they remain subject to other provisions of this Code during candidacy. See Sections 5B(1), 5B(2)(a), 5E and Application Section.

C. Judges and Candidates Subject to Public Election.

(1) Judges holding an office filled by public election between competing candidates, or candidates for such office, may, only insofar as permitted by law, attend political gatherings, speak to such gatherings in their own behalf while candidates for election or re-election, identify themselves as members of political parties, and contribute to political parties or organizations.

Commentary

Section 5C recognizes the distinction between appropriate political activities by judges and candidates subject to non-partisan election and those subject to partisan elections. The language of Section 5C differs from that of corresponding provisions in the ABA Model Code, Sections C(1)(a)(ii) and (iii), in recognition of Mississippi’s non-partisan elections for certain positions. Furthermore, Section 23-15-973 et seq., Miss. Code Ann.

(1972) imposes restrictions on candidates and political organizations to assure the non- partisan quality of judicial elections for Supreme Court, Court of Appeals, Chancery Court, Circuit Court and County Court justices and judges. Section 5C(1) permits judges subject to election at any time to be involved in limited political activity. Section 5D, applicable solely to incumbent judges, would otherwise bar this activity. Section 5C(1)(b)(iv) of the ABA Mode Code has not been incorporated. Attending or speaking at a political party gathering in the judge’s own behalf while a candidate does not constitute alignments or affiliation with the party sponsoring the gathering.

(2) A candidate shall not personally solicit or accept campaign contributions. A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums and other means not prohibited by law. Such committees may solicit and accept reasonable campaign contributions, manage the expenditure of funds for the candidate's campaign and obtain public statements of support for the candidacy. Such committees are not prohibited from soliciting and accepting reasonable campaign contributions from lawyers. A candidate's committees shall not solicit or accept contributions and public support for the candidate's campaign earlier than the date the candidate qualified as a candidate or later than 120 days after the last election in which the candidate participates during the election year. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others.

Commentary

There is legitimate concern about a judge's impartiality when parties whose interests may come before a judge, or the lawyers who represent such parties, are known to have made contributions to the election campaigns of judicial candidates. Section 5C(2) recognizes that in many jurisdictions judicial candidates must raise funds to support their candidacies for election to judicial office. It therefore permits a candidate, other than a candidate for appointment, to establish campaign committees to solicit and accept public support and financial contributions. Though not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear before the judge, may, by virtue of their size or source, raise questions about a judge's impartiality and be cause for disqualification as provided under Section 3E.

Campaign committees established under Section 5C(2) should manage campaign finances responsibly, avoiding deficits that might necessitate post-election fund-raising, to the extent possible. Such committees must at all times comply with applicable statutory provisions governing their conduct.

Section 5C(2) does not prohibit a candidate from initiating an evaluation by a judicial selection commission or bar association, or, subject to the requirements of this Code, from responding to a request for information from any organization.

(3) Candidates shall instruct their campaign committees at the start of the campaign not to accept campaign contributions for any election that exceed those limitations placed on contributions by individuals, political action committees and corporations by law.

Commentary

The ABA Model Code of Judicial Conduct is drafted for the insertion of specific limits on contributions for judicial campaigns. As adopted for Mississippi, this section simply makes references to limits established by the Legislature by statutes which limit contributions to $5,000 in appellate court races, to $2,500 in chancery, circuit or county court races, and generally limits corporate contributions to $1,000. See Miss. Code Ann. § 23-15-1021 (2000 Supp.) (judicial races) and Miss. Code Ann. § 97-13-15 (1999 Supp.) (corporate contributions.)

(4) A candidate and the candidate’s committee shall timely comply with all provisions of law requiring the disclosure and reporting of contributions, loans and extensions of credit.

Commentary

Section 5C(4) of the ABA Model Code of Judicial Conduct which makes special provision for reporting campaign contributions is replaced by the foregoing Section 5C(4) which requires compliance with all provisions of law. See Miss. Code Ann. §§ 23-15-805 and 23-15-1023 (2000 Supp.)

The ABA Model Code includes a Section 5C(5) which approves, under some circumstances, a judicial candidate’s name being listed on election materials along with the names of other candidates. This has not been incorporated in the revision of the Mississippi canons.

D. Incumbent Judges. A judge shall not engage in any political activity except as authorized under any other Section of this Code, on behalf of measures to improve the law, the legal system or the administration of justice, or as expressly authorized by law. Commentary

Neither Section 5D nor any other section of the Code prohibits a judge in the exercise of administrative functions from engaging in planning and other official activities with members of the executive and legislative branches of government. With respect to a judge's activity on behalf of measures to improve the law, the legal system and the administration of justice, see Commentary to Section 4B and Section 4C(1) and its Commentary.

Sections 5A through 5D limit the participation of judges and candidates in political activities. Section 5D expressly prohibits judges from engaging “in any political activity” not expressly authorized by the Code of Judicial Conduct or by law. These provisions do not prohibit voting in party primaries and general elections, which is not “political activity” as the phrase is used in Canon 5. The statute governing non-partisan judicial elections, while

prohibiting candidates for judicial offices covered by the statute from campaigning or qualifying for the offices based on party affiliation, does not preclude the candidates from voting in party primaries. Miss. Code Ann. § 23-25-973 (Supp. 2000.)

E. Applicability. Canon 5 generally applies to all incumbent judges and judicial candidates. Successful candidates, whether or not incumbents, are subject to judicial discipline for their campaign conduct; unsuccessful candidates who are lawyers are subject to lawyer discipline for their campaign conduct. Lawyers who are candidates for judicial office are subject to Rule 8.2(b) of the Mississippi Rules of Professional Conduct. However, the provisions of Canon 5F below shall not apply to elections for the offices of justice court judge and municipal judge.

F. Judicial Election Oversight Committee.

1. Proceedings and Authority. A Judicial Election Oversight Committee (“Oversight Committee”) shall be created to enforce the standards of judicial conduct in judicial elections and provide an accessible forum for advisory opinions in judicial elections. The Oversight Committee shall have the responsibility to issue advisory opinions as to allegations of ethical misconduct in campaigns for judicial office. The Oversight Committee shall be responsible for elections of Supreme Court, Court of Appeals, chancery court, circuit court or county court judges in this state.

2. Membership. The Oversight Committee shall consist of nine (9) members. Each Justice of the Supreme Court shall each appoint one member. Each member shall be a resident attorney licensed to practice in the state. Each member shall be subject to the recusal and conflict of interest rules in the Code of Judicial Conduct as if they were a presiding judge in a case. Also, each member shall recuse in any matter that may directly affect the Supreme Court Justice who appointed that member.

3. Administration. The members shall elect a Chair, Vice Chair and Secretary. The Oversight Committee shall maintain accurate minutes and records. Action taken shall require a quorum of a majority of the members and a majority vote. The Oversight Committee shall be appointed no later than December 1, 2021. The members shall serve a staggered term of four (4) years. The initial appointments by the Justices from District 1- Place 1, District 2 - Place 1, and District 3 - 1 shall be for four years; the initial appointments by the Justices from District 1 - Place 2, District 2 - Place 2, and District 3 - Place 2 shall be for three years; and the initial appointments by the Justices from District 1 - Place 3, District 2 - Place 3, and District 3 - Place 3 shall be for two years. If a member resigns or is unable to participate, the Justice who appointed the member may appoint another person to serve the remainder of the term.

4. Role of the Commission on Judicial Performance. The Commission shall provide administrative support to the Oversight Committee.

5. Notice. Within ten (10) days of a judicial candidate’s public announcement or official qualification for election to any judicial office in this state, whichever is earlier, a judicial candidate shall forward written notice of such candidacy and the required campaign committee members to the Commission. This notice must provide contact information, which includes the appropriate mailing address, email address, and telephone number, of the candidate and the candidate’s campaign committee chair and at least two (2) other members of the candidate’s campaign committee.

6. Education. The Oversight Committee shall provide educational information to judicial candidates and the campaign committee representatives.

a. Judicial Election Materials. Upon receipt of such notice, the Oversight Committee shall distribute to each judicial candidate a copy of Canon 5 of the Code of Judicial Conduct; a summary of any previous opinions on judicial elections issued by a previous Special Committee or Oversight Committee organized for prior elections, or the Supreme Court of Mississippi. This distribution may be provided in written or electronic form. In lieu of distribution, the Oversight Committee may post the materials in electronic form on the State of Mississippi Judiciary webpage – www.courts.ms.gov – with the disclaimer that the opinions issued and actions taken by a previous Special Committee or Oversight Committee have not been adopted or approved by the Supreme Court of Mississippi.

b. Education Seminar. Each year of a judicial election, the Oversight Committee shall conduct a two hour educational seminar for judicial candidates within sixty (60) days of the qualifying deadline. The seminar shall cover topics on judicial election ethics, election laws, Canon 5, and campaign finance requirements. Judicial candidates and the chair of the candidate’s Committee (or a designee) are required to attend in person or electronically.

c. Within ten days of completion of the seminar, each judicial candidate and the Chair of their Committee (or a designee) shall certify their receipt of the Judicial Election Materials, their completion of the seminar, and their understanding of Mississippi law on judicial elections. A judicial candidate without opposition is exempt from attendance at the seminar.

7. Objective. The objective of the Oversight Committee is to alleviate unethical or unfair campaign practices in judicial elections and to provide assistance and direction to judicial candidates and their campaign committees.

a. Questions. Any person, including judicial candidates, their campaign committees, or unaffiliated persons or organizations, may seek an advisory opinion about conduct of a judicial campaign. Any interested person is encouraged to seek an advisory opinion from the Oversight Committee before such conduct occurs.

b. Formal Opinions. The Oversight Committee, on its own or based on a question, may investigate and issue an opinion as to the propriety of any act or conduct by a judicial candidate, a candidate’s campaign committee or any independent person, organization or committee that conducts activities which impact on a judicial election.

1. If the Oversight Committee finds the question of limited significance, it may provide an informal opinion. Such informal opinion is not required to identify the candidate(s) or person(s) involved.

2. If the Oversight Committee finds that the question is of sufficient general interest and importance, it may render a formal opinion. A formal opinion may be disclosed to the public. The Oversight Committee shall have the authority to decide whether to identify the candidate(s) or person(s) involved, but must have provided such candidate(s) or person(s) with reasonable notice and an opportunity to respond to the question in issue.

3. The Oversight Committee may decline to issue an opinion when a majority of the members determine that it would be inadvisable to respond to the request. The Oversight Committee should provide a written explanation of its reasoning to the person who requested the opinion.

4. The Commission on Judicial Performance, the Supreme Court and all other regulatory and enforcement authorities shall consider reliance by a judicial candidate or campaign committee member upon a formal opinion in any disciplinary or enforcement proceeding.

8. The proceedings under this Rule shall be informal and non-adversarial. The Oversight Committee shall act on all requests within ten (10) days of receipt. In the ten (10) days before the election, the Oversight Committee shall act as soon as possible taking into consideration the exigencies of the circumstances and, in no event, within thirty-six (36) hours.

9. The proceedings of the Oversight Committee shall remain confidential. The Oversight Committee shall report any violations of the Code of Judicial Conduct or election law to the appropriate authorities. The Oversight Committee, however, does not have the authority to institute disciplinary action against any judicial candidate for judicial office, which power is specifically reserved to the Commission on Judicial Performance under applicable rules.

10. The Oversight Committee shall provide the Supreme Court and the Commission on Judicial Performance an annual report of its actions, along with a copy of all information and proceedings related thereto, no later than December 31st of each year. The Oversight Committee may also advise the Supreme Court as to any proposed changes or modifications to the Code of Judicial Conduct that relate to judicial elections or the authority or scope of the Oversight Committee.

[Commentary Deleted]

APPLICATION OF THE CODE OF JUDICIAL CONDUCT

A. Parties Affected. Anyone, whether or not a lawyer, who is an officer of a judicial system and who performs judicial functions, including an officer such as a magistrate, court commissioner, special master or referee, is a judge within the meaning of this Code. All judges shall comply with this Code except as provided below.

B. Part-time Judge. A part time judge shall not be subject to the restrictions and limitations of Sections 4C, 4D(2), 4F, and 4G, except as regards practice in the court in which the part-time judge serves [prohibition on practice of law], and 4H(1).

C. Special Judge. A special judge shall not, except while serving as a judge, be subject to the restrictions and limitations of Sections 4A. A special judge shall not, at any time be subject to the restrictions and limitations of Sections, 4B, 4D, 4E, 4F, 4G, and 4H. A special judge, except while serving as a special judge or while a candidate for judicial office, shall not be subject to the restrictions of Canon 5.

D. Magistrates, court commissioners, special masters and referees shall not at any time be subject to the restrictions and limitations of Sections 4A, 4B, 4C(1), 4C(2) 4D, 4E, 4F, 4G, and 4H. Magistrates, court commissioners, special masters and referees, except while a candidate for judicial office, shall not be subject to the restrictions of Canon 5.

E. Time for Compliance. A person to whom this Code becomes applicable shall comply immediately with all provisions of this Code except Sections 4D(1), 4D(2)

and 4E and shall comply with those Sections as soon as reasonably possible and shall do so in any event within the period of one year.

F. Effective Date. The separate provisions of this Code shall govern acts, events and conduct of those subject to those provisions from and after the effective date of the adoption of each such provision. Acts, events and conduct which occur prior to the adoption of each provision shall be governed by the provisions of the Code effective at the time of such acts, events and conduct.

Commentary

The ABA Model Code of Judicial Conduct provides for several non-standard categories of judges who perform duties on a limited basis, which differ from those recognized for Mississippi by this Applications Section. If serving as a fiduciary when selected as judge, a new judge may, notwithstanding the prohibitions in Section 4E, continue to serve as a fiduciary but only for that period of time necessary to avoid serious adverse consequences to the beneficiary of the fiduciary relationship and in no event longer than one year. Similarly, if engaged at the time of judicial selection in a business activity, a new judge may, notwithstanding the prohibitions in Section 4D(2), continue in that activity for a reasonable period but in no event longer than one year.