Wednesday, October 30, 2024

Sid Salter: Non-Partisan Judicial Races Remain Tacitly Partisan

Mississippi judicial races are supposed to be non-partisan - meaning that candidates don’t run under the cloak of any political party. The 2002 case Republican Party of Minnesota v. White drew a bright line that judicial candidates had free speech rights that states were not free to constrain through so-called “announces clauses.”

By law, Mississippi has nonpartisan elections for the state Supreme Court, Court of Appeals and all chancery, circuit and county court judges. Mississippi’s 198 Justice Court judges are the only judges elected in openly partisan races.

Despite the laws prohibiting partisan judicial elections in the state, voters can readily ascertain the partisan and philosophical stances of judicial candidates. A check of the campaign finance rolls establishes just as quickly who the major financiers of the state’s political parties are supporting among the candidates.

Often, the wink-and-nudge of “nonpartisan” judicial elections gives way to all but open political acknowledgment of the partisan leanings of the candidates and the political parties. The current round of judicial elections has been no exception.

The Minnesota ruling struck down hard-and-fast restrictions on the ability of judicial candidates to answer policy-specific questions and to robustly campaign. Political parties interpreted the ruling as a license to support candidates so long as there was no direct connection.

Canon 5 of Mississippi’s Code of Judicial Conduct bars candidates from voicing opinions on issues likely to come before the court. The White case held such restrictions unconstitutional.

The court ruled it may be constitutional to prohibit a candidate from pledging how he will judge cases if elected but held that a blanket “gag rule” impeded the election process by encouraging voter access to information.

Mississippi is one of 21 states that elect judges (eight in partisan elections and 13 in nonpartisan elections like Mississippi’s). Five states see their judges selected by gubernatorial appointment. South Carolina and Virginia choose appellate court judges by legislative election. Michigan chooses its Supreme Court judges by the “Michigan method” which combines a partisan candidate selection process with nonpartisan elections.

21 states choose judges by so-called “assisted appointment” – a process by which the governor appoints state judges with help from a nominating commission or board.

Since the state’s first constitution was drafted in 1817, Mississippians have argued over whether to appoint or elect judges. In 1832, a constitutional convention fight erupted between three groups — the “aristocrats” who favored the appointment of all judges, the “half hogs” who wanted to elect some judges and have others appointed, and the “whole hogs” who wanted all judges elected.

History shows that the “whole hogs” won in 1832, and Mississippi has been electing judges ever since. Of the state’s current 545 judges from the Supreme Court to the municipal courts, only municipal judges are appointed.

Let’s face it. Mississippi voters like electing their political leaders and that’s all the way down the ballot to justice court judges. While there is a growing sentiment in the state to adopt a different method of selecting judges, many state voters cling to the notion of electing judges.

Yet in terms of campaign finance, there are holes in the current judicial election process related to campaign finance laws.

Mississippi corporations are limited to $1,000 contributions in judicial races. Non-corporate donations in judicial races are capped at $5,000 for the Supreme Court or Court of Appeals races and $2,500 for county, circuit or chancery court judicial races.

If a corporation wants to use corporate funds to donate to a candidate, $1,000 is the limit from the corporation. But trial lawyers, even trial lawyers in the same firms, can donate $5,000 per lawyer and include spouses and employees.

The law simply makes it easier for lawyers to make legal, reportable contributions to judicial candidates than it does for the banks, insurance companies and healthcare facilities that want to make corporate donations.

Our judicial races reflect that state voters have some excellent choices on Nov. 5 but describing that process as a “nonpartisan” election rather strains credulity.

Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com.

43 comments:

Anonymous said...

Hey Sid, maybe if your bunch wasn't so intent on creating law from the bench, the "partisanship" would not exist in these elections.

Anonymous said...

I urge everyone to look up Branning's resume. She did not distinguish herself in law school. She apparently was not offered a job with a law firm after graduating. She has no experience other than attempting to practiced family law on her own after she graduated from MS College law school. She is running against an experienced, well respected sitting judge, Kitchens who like the entire court is conservative. A judge needs to have some relevant legal experience. And, our court doesn't need a show pony, they need someone who can actually write a legal opinion and settle legal disputes.

Anonymous said...

October 30, 2024 at 8:29 AM
>Kitchens who like the entire court is conservative.
Kitchens sure didn't act like one when regarding the CCID. I will not be voting for him.

Anonymous said...

"overtly" rather than "tacitly" (both parties)

Anonymous said...

I do not know Branning or Kitchens. I practiced law in MS for 47 years before retiring.
Being a distinguished or poor student in law school has absolutely no bearing on a person’s ability to become a good lawyer or judge. The top graduate in my class bombed as a lawyer. The lowest ranked member of my class became, and still is, one of the absolute best lawyers in the entire southeast US. These 2 are not the exception.
Many graduates do not seek jobs with law firms.
Do you have any idea how many lawyers in MS practice “family” law on their own. Many feel this is their calling. Many do this their entire career and are very successful.
What kind of “relevant” legal experience does a supreme court justice need to have. They hear all kinds of cases.
You do realize that supreme court justices have clerks that write their opinions.
You do realize that supreme court justices do not “settle” disputes.
If we’re going to make any kind of semblance of fairness in this post, should we mention that Kitchens is 81 years old, and this is an 8 year term.

Anonymous said...

You are correct. Branning has never darkened the door of the Mississippi Supreme Court--the same court where she wants to be a judge.

Anonymous said...

Kitchens is conservative? ROFLMAO Thanks for your opinion troll.

Anonymous said...

Kitchens as conservative?

Anonymous said...

In one of her recent campaign advertisements, I noticed Mrs. Branning overtly states, "I am the only candidate endorsed by the Mississippi Republican Party." Surely this statement crosses the line where "non-partisan judicial races" are concerned?

Anonymous said...

Kitchens and Hosemann both need to be put out to pasture.

Anonymous said...

@9:28 AM - Thank you. Everyone on here should read your comment, twice.

Anonymous said...

All lawyers are literal parasites. Law shouldn't be a career. Laws should be written in plain language and any layperson should be able to understand the law without the help of a glorified latin major. It is sad that we live in a society where these vampires run things.

Anonymous said...

Having had many cases before the Supreme Court, I can tell you that the one thing Kitchens isn’t is a conservative who makes his decisions on the law, rather than the law as he thinks it should be. Do not be deceived by that country lawyer schtick he puts on. If people are going to claim that Branning was a not a good student, then I think it would only be fair to find out how good Kitchens was, and compare that to the academic record of the other members of the court

Anonymous said...

Here's a funny story: The original law passed by the legislature stated that no candidate could identify him/herself with a political party. In 1994, when Frank Barber and Bobby DeLaughter were the two candidates for a seat in the newly created MS Court of Appeals. A former GOP legislator was advising Barber and told him that the law (at that time) did not prohibit identifying YOUR OPPONENT with a party). Barber, who was a lifelong yellow-dog Democrat, obtained the GOP voter list and sent a mailer identifying DeLaughter as a Democrat, due to his running before as a Democrat (but not identifying Barber as also a Dem). It worked, as Barber carried the GOP precincts. The legislature, IIRC, later clarified the law and closed that loophole.

Anonymous said...

Here is where partisanship would come into play. If Kitchens is reelected and resigns during his term, the Governor will appoint his replacement.

Anonymous said...

Non-partisan judicial elections is an oxymoron.

Anonymous said...

Kitchens is way past retirement. Please, let’s retire him and those boring garbage commercials of him and his wife. Everybody in Crystal Springs knows he’s democrat and voted for the democrat running for mayor to keep Dan Gibson from winning. Gibson lost by a couple votes and Kitchens was happy.

Anonymous said...

Thank you 9:28, so true. Time to retire him.

Anonymous said...

9:34 am Yes and some of you seem not to realize that our judges if conservative, still have to follow the LAW.
And, in terms of the rest of you, I'm sorry but for our Supreme Court, we need to have the most qualified lawyers. Or they will just get overturned.
Those of you demeaning making good grades in law school or writing a legal opinion that gets published (that's another way besides grades to make Law Review) or learning from an experienced, successful lawyer and being his second in a court room or working with a sitting judge as his clerk are just being ridiculous.
Successful law firms recruit lawyers. They have them do summer clerkships. Being able to deal with other humans matters in everything.
While it is possible to distinguish yourself by winning cases in court and building your own firm, she's not done that either.
Y'all are total fools or crooks if you don't want a judge actually who knows the law judging YOU!
We have lawyers in Mississippi who are nationally and internationally recognized. Our Mississippi Business Journal recognizes the best in their practice areas. And, these guys love their hometowns in Mississippi and love their State. They could be anywhere making more money. And, frankly, our other very conservative judges met the qualifications y'all are naysaying and they'd rather have someone that can write an opinion from time to time than someone who probably wouldn't even be a good legal secretary for them!



Anonymous said...

Branding in the state senate voted to keep the old flag.
She is a unreconstructed Confederate.

Anonymous said...

I will be happy to vote Kitchens into retirement since he seems unwilling to ever volunteer for that role.

Anonymous said...

There are comments about Kitchens and Branning in the Central District. Does anyone have any knowledge about the other three candidates (Byron Carter, Ceola James and Abby Gale Robinson) in this district?

Anonymous said...

I got a mailer from her campaign that said she's the only candidate endorsed by the "Repubican" party.

Anonymous said...

Branning knows all the MAGA buzzwords. I suspect that's about it.

Anonymous said...

Branning's lack of ANY appellate court experience is much more relevant that her law school standing.

anonymous said...

Yes, Jim Kitchens is old, but Jenifer Branning is really young.
Jim Kitchens has vast trial experience, but no one has said anything about Branning handling a jury trial or even a non-jury trial for that matter.
Jim Kitchens has vast appellate experience, but no one has said anything about Branning in an appellate case.
I see no reason to believe Branning has any experience that would make her a suitable appellate judge.
I had never heard of Branning until she announced her candidacy. I met Jim 30 years ago. We have a few philosophical differences, but we agree on treating people kindly and professionally and that the law should be applied fairly. Jim Kitchens is qualified. Branning is not.
If Branning wins, the court will include a judge with no verifiable courtroom experience. That should bother everyone. An endorsement by the GOP and various businesses does not cure the fact this person should serve on our highest court.
RMQ

Anonymous said...

I'm voting against Kitchens. He seems to "lean" too left for me.

Anonymous said...

For you 'experience' trolls: Nobody has appellate experience before they are either appointed or successfully run for an appellate position.

That argument is weak on its face.

Anonymous said...

Save all the peripheral minutiae. Kitchens will be replaced simply because the electorate knows it's time to put him out to pasture. He'll have a nice PERS retirement, and, yes, this is a PERS covered position.

Branning will win the election. The other three are farts in a whirlwind.

Anonymous said...

Geez, I have never heard Branning use the words, "garbage, deplorables, and irredeemables" which are the words used when I see MAGA mentioned in a pejorative use.

Anonymous said...

2:49
Not that it matters. But I’ll bet dollars to donuts Kitchens is already drawing his PERS.

Anonymous said...

Count yourself lucky if you don't have to rely on the Capitol Police to do a professional job! The fellows are nice enough but apparently either don't have in their vehicles / know how to use GPS!

Anonymous said...

October 30, 2024 at 6:31 PM
As opposed to JPD who won't even show up?

Anonymous said...

@ 11:35 - "I'm sorry but for our Supreme Court, we need to have the most qualified lawyers. Or they will just get overturned."

Overturned by whom?

Anonymous said...

@2:46 Jesus what a scary statement. Again, Branning has no verifiable trial court experience, no verifiable appearances before the Court of Appeals or MSSC. That’s pretty important. There is no record of her having a reported case. Ever. I know you don’t know what that means so please ask someone

Anonymous said...

10:02
You have at least 4 posts on this blog trashing Branning. Why dont you tell us the real reason you don’t like her. Or, are you one of Kitchens 13 grandchildren.

Anonymous said...

For a quick recap of the state's judicial elections and the candidates, see, https://mississippitoday.org/2024/10/31/mississippi-election-supreme-court-appeals-kitchens-branning-beam/ and https://magnoliatribune.com/2024/10/21/central-supreme-court-southern-court-of-appeals-races-to-watch-in-mississippi-nov-5/ (the latter URL has links at each candidate's name to the MS SOS campaign reports)

For whatever yet another opinion is worth, here's mine, which I'm offering because I think these are pretty important elections even if most people don't realize it. I'm not an ardent supporter or personal friend of any of them.

Kitchens seems to be a decent man and judge, but he is 80-plus years old. That does not foreclose him serving the full 8 years competently but his age is a reasonable consideration for voters. His winning and retiring mid-term, with the guv appointing someone, is not a bad thing in and of itself - depends on the appointee, obviously. Branning seems a bit too, er, zealous in painting herself as CONSERVATIVE!!! Aside from the variety of forms that can take, especially in MS, from reasonable to batshit wacko, Supreme Court justices should not be zealous in painting themselves too far off-center on the political spectrum. It is an admission of strong personal political bias and a somewhat-desperate election strategy. But it often works, unfortunately. Ceola James, yet again, doesn't appear to stand a chance, which is good. She has proved she is not qualified to be a judge each time she has been one. I don't know enough about the other two to offer an opinion, and it appears no one else knows enough about them for either to stand a chance. In my opinion, Kitchens, at least 80% for him and 20% or less against Branning, but conceding the possibility she might turn out to be a fair (in both meanings) jurist.

As to the COA D5P2 (the southeast counties) race, it appears the most likely winner will be either Jennifer Schloegel, who isn't perfect but she is much more qualified and has fewer problematic ties and (real or apparent) conflicts than the other, Amy St. Pe. Ian Baker seems like a well-qualified candidate with no serious baggage, he was a COA clerk, and worked for Smith when he DA. If I were voting there, I'd go with Baker or Schloegel, 60-70% as a vote for them and 30-40% against the unqualified, problematic St. Pe.

Anonymous said...

So is Kitchens only running so he can retire and the Guvnah can appoint his replacement? Circumventing the democratic process like the DNC did by choosing Harris as their candidate?? Seems they all want to take away the citizens right to choose….

Anonymous said...

He has been eating out of the public trough longer than Joe Xiden, errr, Biden.

Anonymous said...

9:57 and 12:27 I was shocked that she was allowed to even mention party in her television and print ads. She is clearly showing partisanship which should have judicial review!

Anonymous said...

11:48, One of the main reasons I will NOT be voting for her.

Anonymous said...

Appelgate judges don't need courtroom experience. Why would they? Their job is to understand the law and apply it.

Anonymous said...

You'd lose that bet. Nobody still in the system is allowed to draw PERS retirement.

Don't need your dollars, but I'll take the donuts.


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