Proposed rule changes address judge recusals, campaign conduct

October 25, 2001

The Mississippi Supreme Court on Thursday made public proposed revisions to the Code of Judicial Conduct.

New recusal provisions for trial and appellate judges require them to step aside from cases in which attorneys or parties are major campaign contributors. Another recusal provision would allow litigants to reject the trial judge assigned to a case without stating a reason.

The proposed revisions also set up an election committee to respond quickly to allegations of judicial campaign improprieties.

Other revisions to the canons address political activities of judges, timely handling of cases, discrimination and sexual harassment. The entire code has been rewritten to make all references gender-neutral.

Supreme Court Chief Justice Edwin L. Pittman called the recusal and campaign committee provisions "bold new adoptions."

Pittman said, "We are trying to guarantee to the people of this state that they have a fair and impartial judiciary hearing their cases."

Pittman said, "We are attempting to create a politically clean environment for judicial candidates, and the Code of Judicial Conduct would assist in maintaining fairness and truthfulness between opposing candidates."

The proposed revisions are part of a general overhaul of the canons that has taken about six months, said Justice Fred L. Banks Jr., outgoing chairman of the court's Rules Committee. Some of the revisions track the American Bar Association model code.

The proposed revisions are expected to go into effect Jan. 1, 2002. The Court may modify the proposal after a public comment period ends Dec. 10.

Canon 3 E (2) (a) of the proposed revision says, "Judges shall, upon their own motions or upon the motions of any party, recuse themselves from participation in lawsuits in which a major donor is a party or an attorney of record." Canon 3 E (2) (e) (iii) says, "A 'major donor' is a donor who or which has, in the judge's most recent election campaign, made a contribution to the judge's campaign of (a) more than $2,000 if the judge is a justice of the Supreme Court or judge of the Court of Appeals, or (b) more than $1,000 if the judge is a judge of a court other than the Supreme Court or the Court of Appeals."

The recusal thresholds are lower than the campaign contribution limits set by state law for individuals and political action committees. Mississippi Code Section 23-15-1021 sets the individual and political action committee contribution limit for candidates for Chancery, Circuit and County judgeships at $2,500. The contribution limit is $5,000 for individuals and PACs to Supreme Court and Court of Appeals judges.

Mississippi Code Section 97-13-15 sets the contribution limit for corporations at $1,000 for any candidate for public office.

Proposed Canon 3 G would establish a provision for "peremptory recusal" in which a party to a civil or criminal proceeding before a circuit, chancery or county court could ask for a different trial judge without stating a reason.

Parties who wish to ask for another judge without stating a reason would be assigned a judge from a pool. The pool for chancery and circuit judges would be made up of other judges in the same judicial district, in cases involving multi-judge districts, as well as judges from surrounding districts. The pool for county court judges would include all county court judges within the Supreme Court district in which the case is pending. There are three Supreme Court districts. The assignment of a judge would be made by the Chief Justice of the Supreme Court after a blind draw done by the clerk of the Supreme Court.

The peremptory recusal provision for judges is patterned after Section 170.6 of the California Code of Civil Procedure.

The proposed revisions to the Code of Judicial Conduct would place limitations on the time period for accepting campaign contributions. Proposed Canon 5 C (2) would add new language that says, "A candidate's committees shall not solicit or accept contributions and public support for the candidate's campaign earlier than 60 days before the qualifying deadline or later than 120 days after the last election in which the candidate participates during the election year."

The present code limits solicitations by a candidate's campaign committee to a period of 60 days before the qualifying deadline to 90 days after the election, but does not address a time for acceptance of contributions. Judges are not permitted to personally raise money, but must do so through campaign committees.

The proposed revisions also would set up a trouble-shooting team to address allegations of campaign misconduct. Proposed Canon 5 F would establish a five-member Special Committee on Judicial Election Campaign Intervention "whose responsibility shall be to issue advisory opinions and to deal expeditiously with allegations of ethical misconduct in campaigns for judicial office."

Under the language of the proposal, if the committee finds evidence of some campaigning impropriety, it may issue a confidential cease-and-desist request to the candidate. The proposed canon states that if a cease-and-desist request is disregarded or if unethical or unfair campaign practices continue, the committee may issue a public statement about violations believed to exist.

Banks said, "What we hope to do is tone down to a level of propriety the rhetoric that occurs during judicial campaigns. We provide an impartial mechanism to render advice regarding proposed campaign statements and charges, and have an impartial body to respond where campaign activity is not in keeping with the Code of Judicial Conduct or law or is untruthful or misleading."

"Pittman said, "There are several other states that have attempted to police the judicial campaigns through these types of committees."

Georgia and South Dakota have similar election campaign committees.

Banks and Pittman said the election committee will not attempt to prohibit any public statements in campaigns. Candidates have a First Amendment right to free speech.

Banks said, "This committee doesn't prohibit any speech, but it does provide a mechanism for response to that speech that is neutral."

Pittman said, "They would have no authority to deny any candidate the right to say anything, but they would have the ability from an official standpoint to comment on what is said and whether or not it appears to be accurate or factually correct or helpful in informing the public in a truthful way."

Banks said the election committee's potential deterrent effect is in its ability to act swiftly and the fact that the committee will be made up of neutral individuals.

"Things happen very quickly in a campaign, especially in the last days of a campaign," said Banks.

The committee, which would be constituted each year that judicial elections are scheduled, would include appointees named by the Chief Justice of the Supreme Court, the Governor, the Lieutenant Governor, the Speaker of the House of Representatives and the Chairman of the Commission on Judicial Performance. If the official making the appointment would be a candidate for a judicial office, the appointment would be made by the next ranking officeholder.

Another new area to be addressed by the canons is discrimination and harassment.

Proposed Canon 2 C says, "A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or national origin." The Court in its commentary on the provision said, "Membership of a judge in an organization that practices invidious discrimination gives rise to perceptions that the judge's impartiality is impaired."

Canon 3 B (5) addresses prohibitions against discrimination and sexual harassment in adjudicative responsibilities. It states: "A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's discretion and control to do so. A judge shall refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and shall require the same standard of conduct of others subject to the judge's discretion and control."

A copy of the proposed revisions is available on the Supreme Court's web site, courts.ms.gov. Click on the NEWS icon. For comparison, the present Code of Judicial Conduct may be viewed under the RULES icon on the same web site.

For more information, contact court Public Information Officer Beverly Pettigrew Kraft at 601-354-7452 or at bkraft@courts.ms.gov.

####