Mississippi Judicial Performance Commission v. Rules
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the proposed revised Mississippi Code of Judicial Conduct was published and comments and
other suggestions were solicited from the public, the Mississippi judiciary, the Mississippi
Bar, other bar organizations, and members of the bar. Comments and suggestions were
received after the closure of the period for public comment and were fully considered by the
Court for revision and adoption. Thereafter, by order issued on February 8, 2002, the proposed
Mississippi Code of Judicial Conduct, with revisions and the proposed amendments of the
associated procedural rules, were disseminated to the Conference of Circuit Court Judges, the
Conference of Chancery Court Judges and the Conference of County Court Judges for review
and further comments and suggestions. Further comments and suggestions were thereafter
received and these also have been fully considered by the Court.
The Court now finds that the adoption of this revised Mississippi Code of Judicial
Conduct, the repeal of the existing Code of Judicial Conduct, and the adoption of the specified
amendments to the procedural rules will promote the fair and efficient administration of
justice.
IT IS THEREFORE ORDERED as follows:
1. The Mississippi Code of Judicial Conduct as set forth in Exhibit “A” hereto is hereby
adopted, replacing the existing Code of Judicial Conduct, which is hereby repealed as of the
entry of this order;
2. The Mississippi Rules of Civil Procedure are hereby amended by the addition of
Rule 16A as set forth in Exhibit “B” hereto;
3. The Uniform Rules of Circuit and County Court Practice are hereby amended by the
addition of Rule 1.15 as set forth in Exhibit “C” hereto;
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EXHIBIT “A” TO ORDER
CODE OF JUDICIAL CONDUCT
Adopted by the Mississippi Supreme Court
April 4, 2002
PREAMBLE
Our legal system is based on the principle that an independent, fair and competent
judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to
American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the
precepts that judges, individually and collectively, must respect and honor the judicial office
as a public trust and strive to enhance and maintain confidence in our legal system. The judge
is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of
government under the rule of law.
The Code of Judicial Conduct is intended to establish standards for ethical conduct of
judges. It consists of broad statements called Canons, specific rules set forth in Sections
under each Canon, a Terminology Section, an Application Section and Commentary. The text
of the Canons and the Sections, including the Terminology and Application Sections, is
authoritative. The Commentary, by explanation and example, provides guidance with respect
to the purpose and meaning of the Canons and Sections. The Commentary is not intended as
a statement of additional rules. When the text uses "shall" or "shall not," it is intended to
impose binding obligations the violation of which can result in disciplinary action. When
"should" or "should not" is used, the text is intended as hortatory and as a statement of what is
or is not appropriate conduct but not as a binding rule under which a judge may be disciplined.
When "may" is used, it denotes permissible discretion or, depending on the context, it refers
to action that is not covered by specific proscriptions. The Canons and Sections are rules of
reason. They should be applied consistent with constitutional requirements, statutes, other
court rules and decisional law and in the context of all relevant circumstances. The Code is to
be construed so as not to impinge on the essential independence of judges in making judicial
decisions.
The Code is designed to provide guidance to judges and candidates for judicial office
and to provide a structure for regulating conduct through disciplinary agencies. It is not
designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the
purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical
advantage in a proceeding.
The text of the Canons and Sections is intended to govern conduct of judges and to be
binding upon them. It is not intended, however, that every transgression will result in
disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to
be imposed, should be determined through a reasonable and reasoned application of the text
and should depend on such factors as the seriousness of the transgression, whether there is a
pattern of improper activity and the effect of the improper activity on others or on the judicial
system.
The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of
judges. They should also be governed in their judicial and personal conduct by general ethical
standards. The Code is intended, however, to state basic standards which should govern the
conduct of all judges and to provide guidance to assist judges in establishing and maintaining
high standards of judicial and personal conduct.
TERMINOLOGY
"Appropriate authority" denotes the authority with responsibility for initiation of
disciplinary process with respect to the violation to be reported. See Sections 3D(1) and
3D(2).
"Candidate." A candidate is a person seeking selection for judicial office by election or
appointment . Persons become candidates for judicial office as soon as they make public
announcements of candidacy, declare or file as candidates with the election or appointment
authority, or authorize solicitation or acceptance of contributions or support. The term
"candidate" has the same meaning when applied to a judge seeking election or appointment to
non-judicial office. See Preamble and Canon 5.
"Court personnel" does not include the lawyers in a proceeding before a judge. See
Sections 3B(7)(c) and 3B(9).
"De minimis" denotes an insignificant interest that could not raise reasonable question
as to a judge's impartiality. See Sections 3E(1)(c) and 3E(1)(d).
"Economic interest" denotes ownership of a more than de minimis legal or equitable
interest, or a relationship as officer, director, advisor or other active participant in the affairs
of a party, except that:
(i) ownership of an interest in a mutual or common investment fund that
holds securities is not an economic interest in such securities unless the judge
participates in the management of the fund or a proceeding pending or
impending before the judge could substantially affect the value of the interest;
(ii) service by a judge as an officer, director, advisor or other active
participant in an educational, religious, charitable, fraternal or civic
organization, or service by a judge's spouse, parent or child as an officer,
director, advisor or other active participant in any organization does not create
an economic interest in securities held by that organization;
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(iii) a deposit in a financial institution, the proprietary interest of a policy
holder in a mutual insurance company, of a depositor in a mutual savings
association or of a member in a credit union, or a similar proprietary interest,
is not an economic interest in the organization unless a proceeding pending or
impending before the judge could substantially affect the value of the interest;
(iv) ownership of government securities is not an economic interest in
the issuer unless a proceeding pending or impending before the judge could
substantially affect the value of the securities. See Sections 3E(1)(c) and 3E(2).
"Fiduciary" includes such relationships as executor, administrator, trustee, and guardian.
See Sections 3E(3) and 4E.
"Independent persons, committees or organizations" shall mean an individual person or
organization not required to report as affiliated with a campaign for judicial office. See
Section 5F.
"Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in
question. A person's knowledge may be inferred from circumstances. See Sections 3D, 3E(1),
and 5A(3).
"Law" denotes court rules as well as statutes, constitutional provisions and decisional
law. See Sections 2A, 3A, 3B(2), 3B(7), 4B, 4C, 4F, 4I, 5A(2), 5A(3), 5B(2), 5C, 5D, and 5F.
“Major donor”, for the purposes of Section 3E(2), shall be defined as follows:
(a) If the donor is an individual, "donor" means that individual, the
individual's spouse, or the individual’s or the individual’s spouse’s child, mother,
father, grandmother, grandfather, grandchild, employee and employee's spouse.
(b) If the donor is an entity other than an individual, "donor” means the
entity, its employees, officers, directors, shareholders, partners members, and
contributors and the spouse of any of them.
(c) 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.
(d) The term “contribution to the judge's campaign" shall be the total of
all contributions to a judge's campaign and shall be deemed to include all
contributions of every kind and type whatsoever, whether in the form of cash,
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goods, services, or other form of contribution, and whether donated directly to
the judge's campaign or donated to any other person or entity for the purpose
of supporting the judge's campaign and/or opposing the campaign of the judge's
opponent(s). The term "contribution to a judge’s campaign" shall also be deemed
to include any publication, advertisement or other release of information, or
payment therefor, other than a bona fide news item published by existing news
media, which contains favorable information about the judge or which contains
unfavorable information about the judge's opponent(s).
"Member of the candidate's family" denotes a spouse, child, grandchild, parent,
grandparent, siblings, or other relative or person with whom the candidate maintains a close
familial relationship. See Section 5A(3)(a).
"Member of the judge's family" denotes a spouse, child, grandchild, parent, grandparent,
siblings, or other relative or person with whom the judge maintains a close familial
relationship. See Sections 4D, 4E and 4G.
"Member of the judge's family residing in the judge's household" denotes any relative
of a judge by blood or marriage, or a person treated by a judge as a member of the judge's
family, who resides in the judge's household. See Sections 3E(1) and 4D.
"Nonpublic information" denotes information that, by law, is not available to the public.
Nonpublic information may include but is not limited to: information that is sealed by statute
or court order, impounded or communicated in camera; and information offered in grand jury
proceedings, presentencing reports, dependency cases or psychiatric reports. See Sections
3B(11) and 4D(4).
"Part-time judge" denotes a judge who serves for an extended, fixed term, but is allowed
to practice law or any other profession or occupation. The term does not apply to magistrates,
court commissioners, special masters or referees.
"Political organization" denotes a political party or other group, the principal purpose
of which is to further the election or appointment of candidates to political office. See
Sections 5A(1).
"Public election." This term includes primary and general elections; it includes partisan
elections and nonpartisan elections. See Section 5C.
"Require."The rules prescribing that a judge "require" certain conduct of others are, like
all of the rules in this Code, rules of reason. The use of the term "require" in that context means
a judge is to exercise reasonable direction and control over the conduct of those persons
subject to the judge's direction and control. See Sections 3B(3), 3B(4), 3B(5), 3B(6), 3B(9)
and 3C(2).
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"Special judge" denotes a judge, including a retired judge, other than one who is serving
to fill the unexpired term of a regularly elected or appointed judge who has vacated the office,
who serves by appointment for a limited period or in a particular matter due to the
unwillingness or inability of a sitting judge to hear a case or attend court, or who is appointed
on an emergency basis.
"Third degree of relationship." The following persons are relatives within the third
degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child,
grandchild, great-grandchild, nephew or niece. See Section 3E(1)(d).
Commentary
In defining “members of the candidate’s family” and “members of the judge’s
family” siblings of the candidate and judge are included. The phrase “major donor” is
also included. Likewise, no reference is made to retention elections. In these respects, this
section differs from the ABA Model Code of Judicial Conduct.
The ABA Model Code defines “continuing part-time judge,” “periodic part-time
judge,” and “pro tempore part-time judge.” Also, in the Application Section, the ABA
model refers to “retired judge subject to recall.” In the adaption of the model for
Mississippi application, these are reduced to “part-time judge,” and “special judge,”
which covers non-standard positions subject to special treatment. See Application Section.
CANON 1
A Judge Shall Uphold the Integrity
and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society.
A judge should participate in establishing, maintaining, and enforcing high standards
of conduct, and shall personally observe those standards so that the integrity and
independence of the judiciary will be preserved. The provisions of this Code should be
construed and applied to further that objective.
Commentary
Deference to the judgments and rulings of courts depends upon public confidence
in the integrity and independence of judges. The integrity and independence of judges
depends in turn upon their acting without fear or favor. Although judges should be
independent, they must comply with the law, including the provisions of this Code. Public
confidence in the impartiality of the judiciary is maintained by the adherence of each judge
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to this responsibility. Conversely, violation of this Code diminishes public confidence in
the judiciary and thereby does injury to the system of government under law.
CANON 2
A Judge Shall Avoid Impropriety and the
Appearance of Impropriety in All Activities
A. A judge shall respect and comply with the law and shall act at all times in a
manner that promotes public confidence in the integrity and impartiality of the
judiciary.
Commentary
Public confidence in the judiciary is eroded by irresponsible or improper conduct
by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must
expect to be the subject of constant public scrutiny. A judge must therefore accept
restrictions on the judge's conduct that might be viewed as burdensome by the ordinary
citizen and should do so freely and willingly.
The prohibition against behaving with impropriety or the appearance of
impropriety applies to both the professional and personal conduct of a judge. Because it
is not practicable to list all prohibited acts, the proscription is necessarily cast in general
terms that extend to conduct by judges that is harmful although not specifically mentioned
in the Code. Actual improprieties under this standard include violations of law, court rules
or other specific provisions of this Code. The test for appearance of impropriety is
whether, based on the conduct, the judge’s impartiality might be questioned by a
reasonable person knowing all the circumstances.
See also Commentary under Section 2C.
B. Judges shall not allow their family, social, or other relationships to influence
the judges’ judicial conduct or judgment. Judges shall not lend the prestige of their
offices to advance the private interests of the judges or others; nor shall judges convey
or permit others to convey the impression that they are in a special position to
influence the judges. Judges shall not testify voluntarily as character witnesses.
Commentary
Maintaining the prestige of judicial office is essential to a system of government in
which the judiciary functions independently of the executive and legislative branches.
Respect for the judicial office facilitates the orderly conduct of legitimate judicial
functions. Judges should distinguish between proper and improper use of the prestige of
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office in all of their activities. For example, it would be improper for judges to allude to
their judgeships to gain a personal advantage such as deferential treatment when stopped
by a police officer for a traffic offense. Similarly, judicial letterhead must not be used for
conducting a judge's personal business.
A judge must avoid lending the prestige of judicial office for the advancement of the
private interests of others. For example, a judge must not use the judge's judicial position
to gain advantage in a civil suit involving a member of the judge's family. In contracts for
publication of a judge's writings, a judge should retain control over the advertising to
avoid exploitation of the judge's office.
Although a judge should be sensitive to possible abuse of the prestige of office, a
judge may, based on the judge's personal knowledge, serve as a reference or provide a
letter of recommendation. However, a judge must not initiate the communication of
information to a sentencing judge or a probation or corrections officer but may provide
to such persons information for the record in response to a formal request.
Judges may participate in the process of judicial selection by cooperating with
appointing authorities and screening committees seeking names for consideration, and by
responding to official inquiries concerning a person being considered for a judgeship. See
also Canon 5 regarding use of a judge's name in political activities.
A judge must not testify voluntarily as a character witness because to do so may lend
the prestige of the judicial office in support of the party for whom the judge testifies.
Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the
judge may be placed in the awkward position of cross-examining the judge. A judge may,
however, testify when properly summoned. Except in unusual circumstances where the
demands of justice require, a judge should discourage a party from requiring the judge
to testify as a character witness.
C. A judgeshall not hold membership in any organization that practices invidious
discrimination on the basis of race, gender, religion or national origin.
Commentary
Membership of a judge in an organization that practices invidious discrimination
gives rise to perceptions that the judge's impartiality is impaired. Section 2C refers to the
current practices of the organization. Whether an organization practices invidious
discrimination is often a complex question to which judges should be sensitive. The answer
cannot be determined from a mere examination of an organization's current membership
rolls but rather depends on how the organization selects members and other relevant
factors, such as that the organization is dedicated to the preservation of religious, ethnic
or cultural values of legitimate common interest to its members, or that it is in fact and
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effect an intimate, purely private organization whose membership limitations could not be
constitutionally prohibited. Absent such factors, an organization is generally said to
discriminate invidiously if it arbitrarily excludes from membership on the basis of race,
religion, gender or national origin persons who would otherwise be admitted to
membership. See New York State Club Ass'n. v. City of New York,
U.S. , 108 S.Ct.
2225, 101 L.Ed.2d 1 (1988); Board of Directors of Rotary International v. Rotary Club of
Duarte, 481 U.S. 537, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987); Roberts v. United States
Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984).
Although Section 2C relates only to membership in organizations that invidiously
discriminate on the basis of race, gender, religion or national origin, a judge's
membership in an organization that engages in any discriminatory membership practices
prohibited by the law of the jurisdiction also violates Canon 2 and Section 2A and gives
the appearance of impropriety. In addition, it would be a violation of Canon 2 and Section
2A for a judge to arrange a meeting at a club that the judge knows practices invidious
discrimination on the basis of race, gender, religion or national origin in its membership
or other policies, or for the judge to regularly use such a club. Moreover, public
manifestation by a judge of the judge's knowing approval of invidious discrimination on
any basis gives the appearance of impropriety under Canon 2 and diminishes public
confidence in the integrity and impartiality of the judiciary, in violation of Section 2A.
When a person who is a judge on the date this Code becomes effective learns that
an organization to which the judge belongs engages in invidious discrimination that would
preclude membership under Section 2C or under Canon 2 and Section 2A, the judge is
permitted, in lieu of resigning, to make immediate efforts to have the organization
discontinue its invidiously discriminatory practices, but is required to suspend
participation in any other activities of the organization. If the organization fails to
discontinue its invidiously discriminatory practices as promptly as possible (and in all
events within a year of the judge's first learning of the practices), the judge is required to
resign immediately from the organization.
CANON 3
A Judge Shall Perform the Duties of Judicial Office
Impartially and Diligently
A. Judicial Duties in General. The judicial duties of judges take precedence over
all their other activities. The judges’ judicial duties include all the duties of their office
prescribed by law. In the performance of these duties, the following standards apply:
B. Adjudicative Responsibilities.
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(1) A judge shall hear and decide all assigned matters within the judge’s
jurisdiction except those in which disqualification is required.
(2) A judge shall be faithful to the law and maintain professional competence in
it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
(3) A judge shall require order and decorum in proceedings before the judge.
(4) Judges shall be patient, dignified, and courteous to litigants, jurors,
witnesses, lawyers, and others with whom they deal in their official capacities, and
shall require similar conduct of lawyers, and of their staffs, court officials, and others
subject to their direction and control.
Commentary
The duty to hear all proceedings fairly and with patience is not inconsistent with the
duty to dispose promptly of the business of the court. Courts can be efficient and business
like while being patient and deliberate.
(5) 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 gender,
religion, national origin, disability, age, sexual orientation or socioeconomic status,
and shall not permit staff, court officials and others subject to the judge's direction 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 direction and control.
Commentary
A judge must perform judicial duties impartially and fairly. A judge who manifests
bias on any basis in a proceeding impairs the fairness of the proceeding and brings the
judiciary into disrepute. Facial expression and body language, in addition to oral
communication, can give to parties or lawyers in the proceeding, jurors, the media and
others an appearance of judicial bias. A judge must be alert to avoid behavior that may
be perceived as prejudicial.
(6) A judge shall require lawyers in proceedings before the judge to refrain from
manifesting, by words or conduct, bias or prejudice based upon race, gender, religion,
national origin, disability, age, sexual orientation or socioeconomic status, against
parties, witnesses, counsel or others. This Section 3B(6) does not preclude legitimate
advocacy when race, gender, religion, national origin, disability, age, sexual
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orientation or socioeconomic status, or other similar factors, are issues in the
proceeding.
(7) A judgeshall accord to all who are legally interested in a proceeding, or their
lawyers, the right to be heard according to law. A judge shall not initiate, permit, or
consider ex parte communications, or consider other communications made to the
judge outside the presence of the parties concerning a pending or impending
proceeding except that:
(a) where circumstances require, ex parte communications for
scheduling, administrative purposes or emergencies that do not deal with
substantive matters or issues on the merits are authorized: provided:
(i) the judge reasonably believes that no party will
gain a procedural or tactical advantage as a result of the ex
parte communication, and
(ii) the judge makes provision promptly to notify all
other parties of the substance of the ex parte communication
and allows an opportunity to respond.
(b) Judges may obtain the advice of a disinterested expert on the
law applicable to a proceeding before them if the judges give notice to the
parties of the person consulted and the substance of the advice, and afford
the parties reasonable opportunity to respond.
(c) A judge may consult with court personnel whose function is to
aid the judge in carrying out the judge's adjudicative responsibilities or
with other judges.
(d) A judge may, with the consent of the parties, confer separately
with the parties and their lawyers in an effort to mediate or settle matters
pending before the judge.
(e) A judge may initiate or consider any ex parte communications
when expressly authorized by law to do so.
Commentary
The proscription against communications concerning a proceeding includes
communications from lawyers, law teachers, and other persons who are not participants
in the proceeding, except to the limited extent permitted. To the extent reasonably
possible, all parties or their lawyers shall be included in communications with a judge.
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Whenever presence of a party or notice to a party is required by Section 3B(7), it is the
party's lawyer, or if the party is unrepresented, the party, who is to be present or to whom
notice is to be given.
An appropriate and often desirable procedure for a court to obtain the advice of a
disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.
Certain ex parte communication is approved by Section 3B(7) to facilitate
scheduling and other administrative purposes and to accommodate emergencies. In
general, however, a judge must discourage ex parte communication and allow it only if all
the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all parties all
ex parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding a
proceeding pending or impending before the judge. A judge must not independently
investigate facts in a case and must consider only the evidence presented.
A judge may request a party to submit proposed findings of fact and conclusions of
law, so long as the other parties are apprized of the request and are given an opportunity
to respond to the proposed findings and conclusions.
A judge must make reasonable efforts, including the provision of appropriate
supervision, to ensure that Section 3B(7) is not violated through law clerks or other
personnel on the judge's staff.
If communication between the trial judge and the appellate court with respect to a
proceeding is permitted, a copy of any written communication or the substance of any oral
communication should be provided to all parties.
(8) A judge shall dispose of all judicial matters promptly, efficiently and fairly.
Commentary
In disposing of matters promptly, efficiently and fairly, a judge must demonstrate
due regard for the rights of the parties to be heard and to have issues resolved without
unnecessary cost or delay. Containing costs while preserving fundamental rights of parties
also protects the interests of witnesses and the general public. A judge should monitor and
supervise cases so as to reduce or eliminate dilatory practices, avoidable delays and
unnecessary costs. A judge should encourage and seek to facilitate settlement, but parties
should not feel coerced into surrendering the right to have their controversy resolved by
the courts.
Prompt disposition of the court's business requires a judge to devote adequate time
to judicial duties, to be punctual in attending court and expeditious in determining matters
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under submission, and to insist that court officials, litigants and their lawyers cooperate
with the judge to that end.
(9) A judge shall not, while a proceeding is pending or impending in any court,
make any public comment that might reasonably be expected to affect its outcome or
impair its fairness or make any nonpublic comment that might substantially interfere
with a fair trial or hearing. The judge shall require similar abstention on the part of
court personnel subject to the judge's direction and control. This Section does not
prohibit judges from making public statements in the course of their official duties or
from explaining for public information the procedures of the court. This Section does
not apply to proceedings in which the judge is a litigant in a personal capacity.
Commentary
The requirement that judges abstain from public comment regarding a pending or
impending proceeding continues during any appellate process and until final disposition.
This Section does not prohibit a judge from commenting on proceedings in which the judge
is a litigant in a personal capacity, but in cases such as a writ of mandamus where the
judge is a litigant in an official capacity, the judge must not comment publicly. The conduct
of lawyers relating to trial publicity is governed by Rule 3.6 of the Rules of Professional
Conduct.
(10) A judge shall not commend or criticize jurors for their verdict other than
in a court order or opinion in a proceeding, but may express appreciation to jurors for
their service to the judicial system and the community.
Commentary
Commending or criticizing jurors for their verdict may imply a judicial expectation
in future cases and may impair a juror's ability to be fair and impartial in a subsequent
case.
(11) A judge shall not disclose or use, for any purpose unrelated to judicial
duties, nonpublic information acquired in a judicial capacity.
(12) Except as may be authorized by rule or order of the Supreme Court, a judge
should prohibit broadcasting, televising, recording, or taking photographs in the
courtroom and areas immediately adjacent thereto during sessions of court or recesses
between sessions, except that a judge may authorize:
(a) the use of electronic or photographic means for the presentation
of evidence, for the perpetuation of a record, or for other purposes of
judicial administration;
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(b) the broadcasting, televising, recording, or photographing of
investitive, ceremonial, or naturalization proceedings;
(c) the photographic or electronic recording and reproduction of
appropriate court proceedings under the following conditions:
(i) the means of recording will not distract
participants or impair the dignity of the proceedings;
(ii) the parties have consented, and the consent to
being depicted or recorded has been obtained from each
witness appearing in the recording and reproduction;
(iii) the reproduction will not be exhibited until after
the proceeding has been concluded and all direct appeals
have been exhausted; and
(iv) the reproduction will be exhibited only for
instructional purposes in educational institutions.
Commentary
The ABA Model Code does not address broadcasting, televising, recording or
photographing in the courtroom. This provision is taken from the Section 3A(7) of the
prior Mississippi Code of Judicial Conduct.
C. Administrative Responsibilities.
(1) A judge shall diligently discharge the judge's administrative responsibilities
without bias or prejudice and maintain professional competence in judicial
administration, and shall cooperate with other judges and court officials in the
administration of court business.
(2) A judge shall require staff, court officials and others subject to the judge's
direction and control to observe the standards of fidelity and diligence that apply to the
judge and to refrain from manifesting bias or prejudice in the performance of their
official duties.
(3) A judge with supervisory authority for the judicial performance of other
judges shall take reasonable measures to assure the prompt disposition of matters
before them and the proper performance of their other judicial responsibilities.
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(4) A judge shall not make unnecessary appointments. A judge shall exercise the
power of appointment impartially and on the basis of merit. A judge shall avoid
nepotism and favoritism. A judge shall not approve compensation of appointees beyond
the fair value of services rendered.
Commentary
Appointees of a judge include assigned counsel, officials such as referees,
commissioners, special masters, receivers and guardians and personnel such as clerks,
secretaries and bailiffs. Consent by the parties to an appointment or an award of
compensation does not relieve the judge of the obligation prescribed by Section 3C(4).
(5) A judge shall not appoint a major donor to the judge’s election campaign to
a position if the judge knows or learns by means of a timely motion that the major
donor has contributed to the judge's election campaign unless
(a) the position is substantially uncompensated;
(b) the person has been selected in rotation from a list of qualified
and available persons compiled without regard to their having made
political contributions; or
(c) the judge or another presiding or administrative judge
affirmatively finds that no other person is willing, competent and able to
accept the position.
D. Disciplinary Responsibilities.
(1) A judge who receives information indicating a substantial likelihood that
another judge has committed a violation of this Code should take appropriate action.
A judge having knowledge that another judge has committed a violation of this Code
that raises a substantial question as to the other judge's fitness for office shall inform
the appropriate authority.
(2) A judge who receives information indicating a substantial likelihood that a
lawyer has committed a violation of the Rules of Professional Conduct should take
appropriate action. A judge having knowledge that a lawyer has committed a violation
of the Rules of Professional Conduct that raises a substantial question as to the lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects shall inform the
appropriate authority.
(3) Acts of a judge, in the discharge of disciplinary responsibilities, required or
permitted by Sections 3D(1) and 3D(2) are part of a judge's judicial duties and shall be
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absolutely privileged, and no civil action predicated thereon may be instituted against
the judge.
Commentary
Appropriate action may include direct communication with the judge or lawyer who
has committed the violation, other direct action if available, and reporting the violation
to the appropriate authority or other agency or body.
E. Disqualification.
(1) Judges should disqualify themselves in proceedings in which their
impartiality might be questioned by a reasonable person knowing all the circumstances
or for other grounds provided in the Code of Judicial Conduct or otherwise as provided
by law, including but not limited to instances where:
Commentary
Under this rule, a judge should disqualify himself or herself whenever the judge's
impartiality might be questioned by a reasonable person knowing all the circumstances,
regardless whether any of the specific rules in Section 3E(1) apply.
A judge should disclose on the record information that the judge believes the parties
or their lawyers might consider relevant to the question of disqualification, even if the
judge believes there is no real basis for disqualification.
By decisional law, the rule of necessity may override the rule of disqualification. For
example, a judge might be required to participate in judicial review of a judicial salary
statute, or might be the only judge available in a matter requiring immediate judicial
action, such as a hearing on probable cause or a temporary restraining order. In the
latter case, the judge must disclose on the record the basis for possible disqualification
and use reasonable efforts to transfer the matter to another judge as soon as practicable.
For procedures concerning motions for recusal and review by the Supreme Court
of denial of motions for recusal as to trial court judges, see M.R.C.P. 16A, URCCC 1.15,
Unif. Chanc. R. 1.11, and M.R.A.P. 48B. For procedures concerning motions for recusal of
judges of the Court of Appeals or Supreme Court justices, see M.R.A.P. 27(a).
(a) the judge has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the
proceeding;
15
(b) the judge served as lawyer in the matter in controversy, or a
lawyer with whom the judge previously practiced law served during such
association as a lawyer concerning the matter, or the judge or such lawyer
has been a material witness concerning it;
Commentary
A lawyer in a government agency does not ordinarily have an association with other
lawyers employed by that agency within the meaning of Section 3E(1)(b); judges formerly
employed by a government agency, however, should disqualifythemselves in a proceeding
if the judges’ impartiality might reasonably be questioned because of such association.
(c) the judge knows that the judge, individually or as a fiduciary, or
the judge's spouse or member of the judge’s family residing in the judge’s
household, has a financial interest in the subject matter in controversy or
in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding;
(d) the judge or the judge's spouse, or a person within the third
degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director,
or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) is to the judge's knowledge likely to be a material
witness in the proceeding;
Commentary
The fact that a lawyer in a proceeding is affiliated with a law firm with which a
relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate
circumstances, the fact that “the judge’s impartiality might be questioned by a reasonable
person knowing all the circumstances “ under Section 3E(1), or that the relative is known
by the judge to have an interest in the law firm that could be "substantially affected by the
outcome of the proceeding" under Section 3E(1)(d)(iii) may require the judge's
disqualification.
16
(2) Recusal of Judges from Lawsuits Involving Major Donors. A party may file
a motion to recuse a judge based on the fact that an opposing party or counsel of record
for that party is a major donor to the election campaign of such judge. Such motions
will be filed, considered and subject to appellate review as provided for other motions
for recusal.
Commentary
Section 3E(2) recognizes that political donations may but do not necessarily raise
concerns about a judge’s impartiality. The filing, consideration and appellate review of
motions for recusal based on such donations are subject to rules governing all recusal
motions. For procedures concerning motions for recusal and review by the Supreme Court
of denial of motions for recusal as to trial court judges, see M.R.C.P. 16A, URCCC 1.15,
Unif. Chanc. R. 1.11, and M.R.A.P. 48B. For procedures concerning motions for recusal of
judges of the Court of Appeals or Supreme Court justices, see M.R.A.P. 27(a). This
provision does not appear in the ABA Model Code of Judicial Conduct; however, see
Section 3E(1)(e) of the ABA model.
F. Remittal of Disqualification. A judge who may be disqualified by the terms
of Section 3E may disclose on the record the basis of the judge's possible
disqualification and may ask the parties and their lawyers to consider, out of the
presence of the judge, whether to waive disqualification. If following disclosure of any
basis for disqualification other than personal bias or prejudice concerning a party, the
parties and lawyers, without participation by the judge, all agree that the judge should
not be disqualified, and the judge is then willing to participate, the judge may
participate in the proceeding. The agreement shall be incorporated in the record of the
proceeding.
Commentary
A remittal procedure provides the parties an opportunity to proceed without delay
if they wish to waive the possible disqualification. To assure that consideration of the
question of remittal is made independently of the judge, a judge must not solicit, seek or
hear comment on the remittal or waiver of the possible disqualification unless the lawyers
jointly propose remittal after consultation as provided in the rule. A party may act through
counsel if counsel represents on the record that the party has been consulted and consents.
As a practical matter, a judge may wish to have all parties and their lawyers sign the
remittal agreement.
CANON 4
A Judge Shall So Conduct the Judge's Extra-judicial Activities as to
17
Minimize the Risk of Conflict with Judicial Obligations
A. Extra-judicial Activities in General. A judge shall conduct all of the judge's
extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge's capacity to act
impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.
Commentary
Complete separation of a judge from extra-judicial activities is neither possible nor
wise; a judge should not become isolated from the community in which the judge lives.
Expressions of bias or prejudice by a judge, even outside the judge's judicial
activities, may cast reasonable doubt on the judge's capacity to act impartially as a judge.
Expressions which may do so include jokes or other remarks demeaning individuals on the
basis of their race, gender, religion, national origin, disability, age, sexual orientation or
socioeconomic status. See Section 2C and accompanying Commentary.
B. Avocational Activities. A judge may speak, write, lecture, teach and participate
in other extra-judicial activities concerning the law, the legal system, the
administration of justice and non-legal subjects, subject to the requirements of this
Code.
Commentary
As a judicial officer and person specially learned in the law, a judge is in a unique
position to contribute to the improvement of the law, the legal system, and the
administration of justice, including revision of substantive and procedural law and
improvement of criminal and juvenile justice. To the extent that time permits, a judge is
encouraged to do so, either independently or through a bar association, judicial
conference or other organization dedicated to the improvement of the law. Judges may
participate in efforts to promote the fair administration of justice, the independence of the
judiciary and the integrity of the legal profession and may express opposition to the
persecution of lawyers and judges in other countries because of their professional
activities.
In this and other Sections of Canon 4, the phrase "subject to the requirements of this
Code" is used, notably in connection with a judge's governmental, civic or charitable
activities. This phrase is included to remind judges that the use of permissive language in
18
various Sections of the Code does not relieve a judge from the other requirements of the
Code that apply to the specific conduct.
C. Governmental, Civic or Charitable Activities.
(1) A judge shall not make an appearance before, or otherwise consult with, an
executive or legislative body or official or a public hearing except on matters
concerning the law, the legal system or the administration of justice or except when
acting pro se in a matter involving the judge or the judge's interests.
Commentary
See Section 2B regarding the obligation to avoid improper influence.
(2) A judge shall not accept appointment to a governmental committee or
commission or other governmental position that is concerned with issues of fact or
policy on matters other than the improvement of the law, the legal system or the
administration of justice. A judge may, however, represent a country, state or locality
on ceremonial occasions or in connection with historical, educational or cultural
activities.
Commentary
Section 4C(2) prohibits a judge from accepting any governmental position except
one relating to the improvement of the law, legal system or administration of justice as
authorized by Section 4C(3). The appropriateness of accepting extra-judicial assignments
must be assessed in light of the demands on judicial resources created by crowded dockets
and the need to protect the courts from involvement in extra-judicial matters that may
prove to be controversial. Judges should not accept governmental appointments that are
likely to interfere with the effectiveness and independence of the judiciary.
Section 4C(2) does not govern a judge's service in a non-governmental position. See
Section 4C(3) permitting service by a judge with organizations devoted to the improvement
of the law, the legal system or the administration of justice and with educational, religious,
charitable, fraternal or civic organizations not conducted for profit. For example, service
on the board of a public educational institution, unless it were a law school, would be
prohibited under Section 4C(2), but service on the board of a public law school or any
private educational institution would generally be permitted under Section 4C(3).
(3) A judge may serve as an officer, director, trustee or non-legal advisor of an
organization or governmental agency devoted to the improvement of the law, the legal
system or the administration of justice or of an educational, religious, charitable,
19
fraternal or civic organization not conducted for profit, subject to the following
limitations and the other requirements of this Code.
Commentary
Section 4C(3) does not apply to a judge's service in a governmental position
unconnected with the improvement of the law, the legal system or the administration of
justice. See Section 4C(2).
See Commentary to Section 4B regarding use of the phrase "subject to the following
limitations and the other requirements of this Code." As an example of the meaning of the
phrase, a judge permitted by Section 4C(3) to serve on the board of a fraternal institution
may be prohibited from such service by Sections 2C or 4A if the institution practices
invidious discrimination or if service on the board otherwise casts reasonable doubt on
the judge's capacity to act impartially as a judge.
Service by a judge on behalf of a civic or charitable organization may be governed
by other provisions of Canon 4 in addition to Section 4C. For example, a judge is
prohibited by Section 4G from serving as a legal advisor to a civic or charitable
organization.
(a) A judge shall not serve as an officer, director, trustee or
non-legal advisor if it is likely that the organization:
(i) will be engaged in proceedings that would
ordinarily come before the judge, or
(ii) will be engaged frequently in adversary
proceedings in the court of which the judge is a member or
in any court subject to the appellate jurisdiction of the court
of which the judge is a member.
Commentary
The changing nature of some organizations and of their relationship to the law
makes it necessary for a judge regularly to reexamine the activities of each organization
with which the judge is affiliated to determine if it is proper for the judge to continue the
affiliation. For example, in many jurisdictions charitable hospitals are now more
frequently in court than in the past. Similarly, the boards of some legal aid organizations
now make policy decisions that may have political significance or imply commitment to
causes that may come before the courts for adjudication.
20
(b) A judge as an officer, director, trustee or non-legal advisor, or as a
member or otherwise:
(i) may assist such an organization in planning
fund-raising and may participate in the management and
investment of the organization's funds, but shall not
personally participate in the solicitation of funds or other
fund-raising activities, except that a judge may solicit funds
from other judges over whom the judge does not exercise
supervisory or appellate authority;
(ii) may make recommendations to public and private
fund-granting organizations on projects and programs
concerning the law, the legal system or the administration
of justice;
(iii) shall not personally participate in membership
solicitation if the solicitation might reasonably be perceived
as coercive or, except as permitted in Section 4C(3)(b)(i), if
the membership solicitation is essentially a fund-raising
mechanism;
(iv) shall not use or permit the use of the prestige of
judicial office for fund-raising or membership solicitation.
Commentary
A judge may solicit membership or endorse or encourage membership efforts for an
organization devoted to the improvement of the law, the legal system or the administration
of justice or a nonprofit educational, religious, charitable, fraternal or civic organization
as long as the solicitation cannot reasonably be perceived as coercive and is not
essentially a fund-raising mechanism. Solicitation of funds for an organization and
solicitation of memberships similarly involve the danger that the person solicited will feel
obligated to respond favorably to the solicitor if the solicitor is in a position of influence
or control. A judge must not engage in direct, individual solicitation of funds or
memberships in person, in writing or by telephone except in the following cases: 1) a judge
may solicit for funds or memberships other judges over whom the judge does not exercise
supervisory or appellate authority, 2) a judge may solicit other persons for membership
in the organizations described above if neither those persons nor persons with whom they
are affiliated are likely ever to appear before the court on which the judge serves and 3)
a judge who is an officer of such an organization may send a general membership
solicitation mailing over the judge's signature.
21
Use of an organization letterhead for fund-raising or membership solicitation does
not violate Section 4C(3)(b) provided the letterhead lists only the judge's name and office
or other position in the organization, and, if comparable designations are listed for other
persons, the judge's judicial designation. In addition, a judge must also make reasonable
efforts to ensure that the judge's staff, court officials and others subject to the judge's
direction and control do not solicit funds on the judge's behalf for any purpose, charitable
or otherwise.
A judge must not be a speaker or guest of honor at an organization's fund- raising
event, but mere attendance at such an event is permissible if otherwise consistent with this
Code.
D. Financial Activities.
(1) Judges should refrain from financial and business dealings that tend to reflect
adversely on their impartiality, interfere with the proper performance of their judicial
duties, exploit their judicial positions, or involve them in frequent transactions with
lawyers or persons likely to come before the court on which the judges serve.
(2) Judges should manage their investments and other financial interests to
minimize the number of cases in which they are disqualified. As soon as a judge can do
so without serious financial detriment, the judge should divest himself or herself of
investments and other financial interests that might require frequent disqualification.
(3) Neither judges nor members of their families residing in their households
should accept a gift, bequest, favor, or loan from anyone reflecting the expectation of
judicial favor.
(4) Non-public information acquired by a judge in the judge’s judicial capacity
should not be used or disclosed by the judge in financial dealings or for any other
purpose not related to the judge’s judicial duties.
Commentary
The prohibition of Section 4D(3), limiting gifts which judges and their families may
accept, does not prohibit gifts incident to public testimonials to the judges, books supplied
by publishers on a complimentary basis for official use, and invitations to judges and their
spouses to attend bar-related functions or activities devoted to the improvements of the
law, the legal system or the administration of justice. Judges and their families residing
in their households may accept ordinary social hospitality, gifts, bequests, favors and
loans from relatives, wedding and engagement gifts, loans from lending institutions in
their regular course of business on the same terms generally available to persons who are
22
not judges, and scholarships and fellowships awarded on the same terms applied to other
applicants. Judges and members of their families residing in their households may accept
any other gifts, bequests, favors and loans only if the donor is not a party or likely to come
before them, and the gifts are reported as may be required by law. Gifts, bequests, favors
and loans are to be reported as may be required by the Ethics in Government statutes. See
Miss. Code Ann. § 25-4-27. Section 4D differs from the provisions of the ABA model and
retains in large part the provisions of the Mississippi Code of Judicial Conduct as it
existed prior to the current revision. Although this section does not prohibit holding
specific extra-judicial positions or engaging in other specific business activities, it does
require that judges refrain from business activities which might reflect adversely on their
impartiality and that they manage their business activities so as to minimize the need for
recusal. Regarding recusals and disqualification, see Section 3E.
E. Fiduciary Activities.
(1) A judge shall not serve as executor, administrator or other personal
representative, trustee, guardian, attorney in fact or other fiduciary except for the
estate, trust or person of a member of the judge's family, and then only if such service
will not interfere with the proper performance of judicial duties.
(2) A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary
will be engaged in proceedings that would ordinarily come before the judge, or if the
estate, trust or ward becomes involved in adversary proceedings in the court on which
the judge serves or one under its appellate jurisdiction.
(3) The same restrictions on financial activities that apply to a judge personally
also apply to the judge while acting in a fiduciary capacity.
Commentary
The Time for Compliance provision of this Code (Application, Section E) postpones
the time for compliance with certain provisions of this Section in some cases.
The restrictions imposed by this Canon may conflict with the judge's obligation as
a fiduciary. For example, a judge should resign as trustee if detriment to the trust would
result from divestiture of holdings, the retention of which would place the judge in
violation of Section 4D(3).
F. Service as Arbitrator or Mediator. A judge shall not act as an arbitrator or
mediator or otherwise perform judicial functions in a private capacity unless expressly
authorized by law.
23
Commentary
Section 4F does not prohibit a judge from participating in arbitration, mediation
or settlement conferences performed as part of judicial duties.
G. Practice of Law. A judge shall not practice law. Notwithstanding this
prohibition, a judge may act pro se and may, without compensation, give legal advice
to and draft or review documents for a member of the judge's family.
Commentary
This prohibition refers to the practice of law in a representative capacity and not
in a pro se capacity. Judges may act for themselves in all legal matters, including matters
involving litigation and matters involving appearances before or other dealings with
legislative and other governmental bodies. However, in so doing, a judge must not abuse
the prestige of office to advance the interests of the judge or the judge's family. See Section
2(B).
The Code allows a judge to give legal advice to and draft legal documents for
members of the judge's family, so long as the judge receives no compensation. A judge must
not, however, act as an advocate or negotiator for a member of the judge's family in a legal
matter.
H. Compensation, Reimbursement and Reporting.
(1) Compensation and Reimbursement. A judge may receive compensation and
reimbursement of expenses for the extra-judicial activities permitted by this Code, if
the source of such payments does not give the appearance of influencing the judge's
performance of judicial duties or otherwise give the appearance of impropriety.
(a) Compensation shall not exceed a reasonable amount nor shall
it exceed what a person who is not a judge would receive for the same
activity.
(b) Expense reimbursement shall be limited to the actual cost of
travel, food and lodging reasonably incurred by the judge and, where
appropriate to the occasion, by the judge's spouse or guest. Any payment
in excess of such an amount is compensation.
(2) Public Reports. A judge shall comply with those provisions of law requiring
the reporting of economic interest to the Mississippi Ethics Commission.
Commentary
24
See Commentary to Section 4D(4) regarding reporting of gifts, bequests and loans.
See also Miss. Code Ann. §§ 25-4-25 through 29 regarding the filing of statements of
economic interest with the Mississippi Ethics Commission. The ABA model suggests that
since Canon 6 in the 1972 model code was drafted, reporting requirements in most
jurisdictions have become much more comprehensive, and that canons regulating
reporting of income should be tailored to the requirements of individual jurisdictions.
Subsection 4H 2), therefore, simply requires compliance with the statutory provisions for
reporting to the Ethics Commission.
The Code does not prohibit a judge from accepting honoraria or speaking fees
provided that the compensation is reasonable and commensurate with the task performed.
A judge should ensure, however, that no conflicts are created by the arrangement. A judge
must not appear to trade on the judicial position for personal advantage. Nor should a
judge spend significant time away from court duties to meet speaking or writing
commitments for compensation. In addition, the source of the payment must not raise any
question of undue influence or the judge's ability or willingness to be impartial.
I. Disclosure of a judge's income, debts, investments or other assets is required
only to the extent provided in this Canon and in Sections 3E and 3F, or as otherwise
required by law.
Commentary
Section 3E requires judges to disqualify themselves in any proceedings in which
they have economic interests. See "economic interest" as explained in the Terminology
Section. Section 4D requires judges to refrain from engaging in business and from
financial activities that might interfere with the impartial performance of judicial duties;
Section 4H requires judges to report compensation they received for activities outside
judicial office. Judges have the rights of any other citizens, including the right to privacy
of the judges’ financial affairs, except to the extent that limitations established by law are
required to safeguard the proper performance of the judges’ duties.
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:
25
(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
26
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) prohibits a candidate for judicial office from 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
27
prohibit a candidate from making pledges or promises respecting improvements in court
administration. Nor does this Section prohibit an incumbent judge from making private
statements to other judges or court personnel in the performance of judicial duties. This
Section 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,” “antibusiness,” “pro-life,” “pro-choice,” or in any similar characterizations suggest fixed
views on issues which may come before the courts, when applied to the candidate or an
opponent, and may be taken as prohibited by Section 5A(3)(d.)
(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:
28
(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 nonpartisan 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
29
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 or
personally solicit publicly stated support. 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 and public support
from lawyers. 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. 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
30
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”
31
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. Special Committee--Proceedings and Authority. In every year in which an
election is held for Supreme Court, Court of Appeals, chancery court, circuit court or
county court judge in this state and at such other times as the Supreme Court may deem
appropriate, a Special Committee on Judicial Election Campaign Intervention
("Special Committee") shall be created whose responsibility shall be to issue advisory
opinions and to deal expeditiously with allegations of ethical misconduct in campaigns
for judicial office. The committee shall consist of five (5) members. The Chief Justice
of the Supreme Court, the Governor, the Lieutenant Governor, the Speaker of the House
of Representatives of the Mississippi Legislature and the chair of the Commission on
Judicial Performance (Commission) shall each appoint one member. Those appointed
by the Chief Justice, the Governor and the chair of the Commission shall be attorneys
licensed to practice in the state. No person shall be appointed to serve as a member of
a Special Committee for the year in which such person is a candidate for judicial office.
Should the Chief Justice expect to be a candidate for judicial office during the year for
which a Special Committee is to be appointed the Chief Justice shall declare such
expectation, and in such event, the appointment which otherwise would have been made
by the Chief Justice shall be made by the next senior justice of the Supreme Court not
seeking judicial office in such year. Likewise, should the Governor, Lieutenant
Governor, Speaker of the House of Representatives or chair of the Commission expect
to seek judicial office during such year, that official shall declare such expectation, and
the appointment which otherwise would have been made by such appointing authority
shall be made, respectively: by the Lieutenant Governor if the Governor expects to seek
such an office; by the President Pro Tem of the Senate if the Lieutenant Governor
expects to seek such an office; by the Speaker Pro Tem of the House of Representatives
if the Speaker expects to seek such an office; and by the vice-chair of the Commission
if the chair expects to seek such an office. Any action taken by the Special Committee
shall require a majority vote. Each Special Committee shall be appointed no later
March 1 in the year of their service, and it shall continue in existence for ninety (90)
32
days following such judicial elections or for so long thereafter as is necessary to
consider matters submitted to it within such time. The Commission shall provide
administrative support to the Special Committee. Should any appointing authority fail
to make an appointment, three members shall constitute a sufficient number to conduct
the business of the Special Committee. The objective of the Special Committee shall be
to alleviate unethical and unfair campaign practices in judicial elections, and to that
end, the Special Committee shall have the following authority:
(1) Within ten (10) days of the effective date of this rule or within the ten (10)
days after formally announcing and/or officially qualifying for election or re-election
to any judicial office in this state, whichever is later, all candidates, including
incumbent judges, shall forward written notice of such candidacy, together with an
appropriate mailing address and telephone number, to the Commission. Upon receipt
of such notice, the Special Committee shall, through the Commission, cause to be
distributed to all such candidates by certified mail-return receipt requested copies of
the following: Canon 5 of the Code of Judicial Conduct; summaries of any previous
opinions issued by the Special Committee, Special Committees organized for prior
elections, or the Supreme Court of Mississippi, which relate in any way to campaign
conduct and practices; and a form acknowledgment, which each candidate shall
promptly return to the Commission and therein certify that the candidate has read and
understands the materials forwarded and agrees to be bound by such standards during
the course of the campaign. A failure to comply with this section shall constitute a per
se violation of this Section authorizing the Committee to immediately publicize such
failure to all candidates in such race and to all appropriate media outlets. In the event
of a question relating to conduct during a judicial campaign, judicial candidates, their
campaign organizations, and all independent persons, committees and organizations are
encouraged to seek an opinion from the Special Committee before such conduct occurs.
(2) Opinions as to the propriety of any act or conduct by a judicial candidate, a
candidate's campaign organization or an independent person, committee or
organization conducting activities which impact on the election and as to the
construction or application of Canon 5 may be provided by the Special Committee upon
request from any judicial candidate, campaign organization or an independent person,
committee or organization. If the Special Committee finds the question of limited
significance, it may provide an informal opinion to the questioner. If, however, it finds
the questions of sufficient general interest and importance, it may render a formal
opinion, in which event it shall cause the opinion to be published in complete or
synopsis form. Furthermore, the Special Committee may issue formal opinions on its
own motion under such circumstances, as it finds appropriate. The Special Committee
may decline to issue an opinion when a majority of the Special Committee members
determine that it would be inadvisable to respond to the request and to have so
confirmed in writing their reasoning to the person who requested the opinion. All
formal opinions of the Special Committee shall be filed with the Supreme Court and
33
shall be a matter of public record except for the names of the persons involved, which
shall be excised. Both formal and informal opinions shall be advisory only; however,
the Commission on Judicial Performance, the Supreme Court and all other regulatory
and enforcement authorities shall consider reliance by a judicial candidate upon the
Special Committee opinion in any disciplinary or enforcement proceeding.
(3) Upon receipt of information facially indicating a violation by a judicial
candidate of any provision of Canon 5 during the course of a campaign for judicial
office, or indicating actions by an independent person, committee or organization which
are contrary to the limitations placed upon candidates by Canon 5, the Commission staff
shall immediately forward a copy of the same by e-mail or facsimile, if available, and
U.S. mail to the Special Committee members and said Committee shall:
(a) seek, from the informing party and/or the subject of the
information, such further information on the allegations as it deems
necessary;
(b) conduct such additional investigation as the Committee may
deem necessary;
(c) determine whether the allegations warrant speedy intervention
and, if so, immediately issue a confidential cease-and-desist request to the
candidate and/or organization or independent committee or organization
believed to be engaging in unethical and/or unfair campaign practices. If
the Committee determines that the unethical and/or unfair campaign
practice is of a serious and damaging nature, the Committee may, in its
discretion, disregard the issuance of a cease-and-desist request and
immediately take action authorized by the provisions of paragraph
(3)(d)(i) and (ii), hereafter described. If the allegations of the complaint
do not warrant intervention, the Committee shall dismiss the same and so
notify the complaining party.
(d) If a cease-and-desist request is disregarded or if the unethical
or unfair campaign practices otherwise continue, the Committee is
further authorized:
(i) to immediately release to all appropriate media
outlets, as well as the reporting party and the person and/or
organization against whom the information is submitted, a
public statement setting out the violations believed to exist,
or, in the case of independent persons, committees or
organizations, the actions by an independent person,
committee or organization which are contrary to the
34
limitations placed upon candidates by Canon 5. In the event
that the violations or actions have continued after the
imposition of the cease and desist request, the media release
shall also include a statement that the candidate and/or
organization or independent person, committee or
organization has failed to honor the cease-and-desist
request, and
(ii) to refer the matter to the Commission on Judicial
Performance or to any other appropriate regulatory or
enforcement authority for such action as may be appropriate
under the applicable rules.
(4) All proceedings under this Rule shall be informal and non-adversarial, and
the Special Committee shall act on all requests within ten (10) days of receipt, either
in person, by facsimile, by U.S. mail, or by telephone. In any event, the Special
Committee shall act as soon as possible taking into consideration the exigencies of the
circumstances and, as to requests received during the last ten (10) days of the campaign,
shall act within thirty-six (36) hours.
(5) Except as herein specifically authorized, the proceedings of the Special
Committee shall remain confidential , and in no event shall the Special Committee have
the authority to institute disciplinary action against any candidate for judicial office,
which power is specifically reserved to the Commission on Judicial Performance under
applicable rules.
(6) The Committee shall after conclusion of the election distribute to the
Commission on Judicial Performance copies of all information and all proceedings
relating thereto.
(7) This Canon 5F shall apply to all candidates for judicial offices of the Supreme
Court, Court of Appeals, chancery courts, circuit courts and county courts, be they
incumbent judges or not, and to the families and campaign/solicitation committees of
all such candidates. Persons who seek to have their name placed on the ballot as
candidates for such judicial offices and the judicial candidates’ election committee
chairpersons, or the chairperson’s designee, shall no later than 20 days after the
qualifying date for candidates in the year in which they seek to run complete a
two-hour course on campaign practices, finance, and ethics sponsored and approved by
the Committee. Within ten days of completing the course, candidates shall certify to
Committee that they have completed the course and understand fully the requirements
of Mississippi law and the Code of Judicial Conduct concerning campaign practices for
judicial office. Candidates without opposition are exempt from attending the course.
35
Commentary
This Section 5F does not appear in the ABA Model Code and was added with the
adoption of this Section 5. Similar provisions have been adopted for South Dakota and
Georgia. See South Dakota Rules of Commission on Judicial Qualifications, Rule IV and
Rules of Georgia Judicial Qualification Commission, Rule 27. In Weaver v. Bonner, 114
F. Supp. 2d 1337 (N.D. Ga. 2000), a constitutional challenge to the Georgia rule was
rejected, the court saying the government may “participate in the marketplace of ideas”
and “contribute its own views to those of the other speakers. Weaver at 1345, quoting
Muir v. Ala. Educ. Television Comm’n, 688 F. 2d 1033, 1037 (5 th Cir. 1982). In Weaver, the
court also specifically found the procedures adequate to satisfy due process requirement.
Provision is made for the Special Committee to issue opinions to judicial
candidates. Ordinarily, absent extraordinary circumstances or statutory authority to the
contrary, when a judge or candidate, relying on the opinion of the Special Committee, acts
in accordance with the opinion and the opinion is based on a full disclosure of facts and
circumstances, the judge or candidate will not be subject to disciplinary or enforcement
action or liability.
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.
36
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.
37
EXHIBIT “B” TO ORDER
AMENDMENT TO MISSISSIPPI RULES OF CIVIL PROCEDURE
RULE 16A. MOTIONS FOR RECUSAL OF JUDGES
Motions seeking the recusal of judges shall be timely filed with the trial judge and shall
be governed by procedures set forth in the Uniform Rules of Circuit and County Court Practice
and the Uniform Rules of Chancery Court Practice.
[Adopted, April 4, 2002.]
Comment
Motions for recusal should be timely filed and should not be used for purposes of delay.
Specific procedures for presentation and consideration of motions seeking the recusal of
judges are set forth in URCCC 1.15 and Unif. Chanc. R. 1.11. See also, M.R.A.P. 48B
concerning review of the trial judges’ denial of motions to recuse under M.R.A.P. 21.
[Adopted, April 4, 2002.]
EXHIBIT “C” TO ORDER
RULE 1.15 TO THE UNIFORM RULES OF CIRCUIT AND COUNTY COURT
PRACTICE
AND
RULE 1.11 OF
UNIFORM CHANCERY COURT RULES
UNIFORM RULES OF CIRCUIT AND COUNTY COURT PRACTICE
RULE 1.15 MOTIONS FOR RECUSAL OF JUDGES
Any party may move for the recusal of a judge of the circuit or county court if it appears
that the judge’s impartially might be questioned by a reasonable person knowing all the
circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as
provided by law. A motion seeking recusal shall be filed with an affidavit of the party or the
party’s attorney setting forth the factual basis underlying the asserted grounds for recusal and
declaring that the motion is filed in good faith and that the affiant truly believes the facts
underlying the grounds stated to be true. Such motion shall, in the first instance, be filed with
the judge who is the subject of the motion within 30 days following notification to the parties
of the name of the judge assigned to the case; or, if it is based upon facts which could not
reasonably have been known to the filing party within such time, it shall be filed within 30 days
after the filing party could reasonably discover the facts underlying the grounds asserted. The
subject judge shall consider and rule on the motion within 30 days of the filing of the motion,
with hearing if necessary. If a hearing is held, it shall be on the record in open court. The
denial of a motion to recuse is subject to review by the Supreme Court on motion of the party
filing the motion as provided in M.R.A.P. 48B.
[Adopted April 4, 2002.]
RULES OF UNIFORM CHANCERY COURT RULES
RULE 1.11 MOTIONS FOR RECUSAL OF JUDGES
Any party may move for the recusal of a judge of the chancery court if it appears that
the judge’s impartially might be questioned by a reasonable person knowing all the
circumstances, or for other grounds provided in the Code of Judicial Conduct or otherwise as
provided by law. A motion seeking recusal shall be filed with an affidavit of the party or the
party’s attorney setting forth the factual basis underlying the asserted grounds for recusal and
declaring that the motion is filed in good faith and that the affiant truly believes the facts
underlying the grounds stated to be true. Such motion shall, in the first instance, be filed with
the judge who is the subject of the motion within 30 days following notification to the parties
of the name of the judge assigned to the case; or, if it is based upon facts which could not
reasonably have been known to the filing party within such time, it shall be filed within 30 days
after the filing party could reasonably discover the facts underlying the grounds asserted. The
subject judge shall consider and rule on the motion within 30 days of the filing of the motion,
with hearing if necessary. If a hearing is held, it shall be on the record in open court. The
denial of a motion to recuse is subject to review by the Supreme Court on motion of the party
filing the motion as provided in M.R.A.P. 48B.
[Adopted April 4, 2002.]
2
EXHIBIT “D” TO ORDER
AMENDMENT TO MISSISSIPPI RULES OF APPELLATE PROCEDURE
RULE 48B. PROCEEDINGS ON MOTION FOR DISQUALIFICATION OF TRIAL
JUDGE.
If a judge of the circuit, chancery or county court shall deny a motion seeking the trial
judge’s recusal, or if within 30 days following the filing of the motion for recusal the judge
has not ruled, the filing party may within 14 days following the judge’s ruling, or 14 days
following the expiration of the 30 days allowed for ruling, seek review of the judge’s action
by the Supreme Court. A true copy of any order entered by the subject judge on the question
of recusal and transcript of any hearing thereon shall be submitted with the petition in the
Supreme Court. The Supreme Court will not order recusal unless the decision of the trial judge
is found to be an abuse of discretion. Otherwise, procedure in the Supreme Court shall be in
accordance with M.R.A.P. 21. Appointment of another judge to hear the case shall be made as
otherwise provided by law.
[Adopted April 4, 2002.]
EXHIBIT “E” TO ORDER
AMENDMENT TO RULE 6A TO THE RULES OF THE MISSISSIPPI COMMISSION
ON JUDICIAL PERFORMANCE
RULE 6. PROBABLE CAUSE
A. Grounds for Discipline and Retirement. The grounds for discipline and
retirement, as prescribed by the Constitution, are:
(1) Actual conviction of a felony in a court other than a court of the State of
Mississippi 1;
(2) Willful misconduct in office;
(3) Willful and persistent failure to perform his duties;
(4) Habitual intemperance in the use of alcohol or other drugs;
(5) Conduct prejudicial to the administration of justice which brings the judicial office
into disrepute;
(6) Physical or mental disability seriously interfering with the performance of his
duties, which disability is or is likely to become of a permanent character;
In addition, the Commission may consider:
(7) (1) Any willful violation of law constituting a serious misdemeanor or felony;
(8) (2) Any violation of the code of judicial conduct as adopted by the Mississippi
Conference of Judges or by the Mississippi Justice Court Officers Association; and
(9) (3) Any violation of the rules of professional conduct code of professional
responsibility as adopted by the Supreme Court.
B. Disposition. The Commission shall dispose of the case in one (1) of the following
ways:
1
Under Section 175, Mississippi Constitution of 1890, and Section 25-5-1, Mississippi Code
of 1972, public officers convicted of a crime in this state shall be removed from office. Section 25-5-1
was amended in 1979 to provide for removal upon conviction of certain crimes in federal courts and
the courts of other states as well as in state courts.
(1) If it finds that there has been no misconduct, the case shall be dismissed.
(2) If it finds that there has been misconduct for which a private admonishment
constitutes adequate discipline, it shall issue the admonishment. The complainant shall be
notified that the matter has been resolved. The Commission shall notify the Chief Justice of
the Supreme Court of its action.
(3) The Commission may enter into a memorandum of understanding with the judge
concerning his future conduct or submission to professional treatment or counseling.
(4) If it is determined that probable cause exists to require a formal hearing, it shall so
notify the judge by service of a notice and a formal complaint.
C. Formal Complaint. The formal complaint shall be entitled "BEFORE THE
MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE, INQUIRY CONCERNING
A JUDGE, NO. _____." The formal complaint shall identify any complainant and shall specify
in ordinary and concise language the charges against the judge. The notice shall advise the
judge of his right to file a written, sworn answer to the charges against him within thirty (30)
days after service of the notice upon him. The notice and formal complaint shall be served
upon the judge by personal service by a member of the Commission, the executive director,
or by any adult person designated by the Commission, or by certified or registered mail
addressed to the judge at his last known residence of record.
D. Answer. Within thirty (30) days after service of the notice and the formal
complaint, the judge may file with the Commission a sworn answer or motions. The formal
complaint and answer shall constitute the pleadings. Thereafter, no further motions or
pleadings may be filed unless the Commission shall first grant leave.
[Amended effective June 29, 1995; amended April 4, 2002.]
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