In November, four of the nine state Supreme Court seats will be up for grabs, and the outcome could signal a shift in the political landscape.
“This election is so important,” said Jim Payne, the founder and former president, chairman and CEO of Jackson-based UAD Laboratories Inc., and a member of the Mississippi Business Hall of Fame. “Not only business people, but also the average Mississippian, needs to learn about the candidates, their position on tort reform, and then vote for the person they think would help Mississippi business succeed.”
On the ballot: Seats for District 1 (Central), Position 1, now held by Justice William Waller Jr.; District 1 (Central), Position 2, now held by Justice James E. Graves Jr.; District 2 (Southern), Position 3, now held by Justice Michael Randolph; and District 3 (Northern), Position 3, now held by Justice George C. Carlson Jr.
The position held by Waller is one of only two of the nine seats that have a 14-month delay between the election and the beginning of the term. Justice Jess Dickinson, who had to wait 14 months to take office after the November 2002 election, in which he defeated Justice Chuck McRae, holds the other.
Political pundits have suggested that Waller and Carlson should easily win re-election over respective challengers Richard Grindstaff and William L. Bambach. Randolph, who Gov. Haley Barbour appointed to the bench in April to fill the term of retiring Chief Justice Ed Pittman, is favored over his opponent: 4th District Court of Appeals Judge Joe Lee, a former high school principal, four-term District Governor for the Mississippi Trial Lawyers Association, 2004 Mississippi College School of Law’s Lawyer of the Year and funeral home owner.
Speculation has swirled around the race for District 1, Position 2: Graves is expected to garner the most votes but face either Samac Richardson or Bill Skinner in a runoff election. (See box, page 14.)
Plaintiff trial lawyers are expected to pour money into the state in support of judicial candidates who might be relied on to find parts of the new tort reform law illegal under the state constitution.
“Passing tort reform legislation didn’t settle the issue,” said Marty Wiseman, Ph.D., executive director of the John C. Stennis Institute of Government at Mississippi State University. “It more or less kicked the next level of debate into high gear as to how much of it is going to stand the test of litigation itself. That definitely makes this election important, to see who gets to make those decisions.”
Dick Wilcox, president of BIPEC (Business & Industry Political Education Committee), said the philosophical makeup of the state Supreme Court “will determine whether tort reform remains intact or is overturned and thrown out by case law decisions. Unfortunately, many who supported tort reform efforts appear to be satisfied with its success and are not paying attention to the future.”
The Mississippi State Medical Association’s (MSMA) Political Action Committee (PAC) has pledged support of incumbents Waller, Carlson and Randolph. However, the PAC supports Graves’ opponent Sumac Richardson.
“We realize how crucial these Supreme Court elections are,” said MSMA president Steve Parvin, M.D. “Everybody knows how hard we worked to help get Justice Jess Dickinson elected. That one election really made a huge impact, and we’re already seeing benefits. We’ll work hard to try to elect four justices we believe will be fair. We’re not asking anybody to do anything special for the medical community. We just want fairness.”
In 2000, the U.S. Chamber of Commerce spent about $1 million in ads in support of certain judicial candidates. The latest reported contributions for Mississippi judicial candidates shows about a half-million dollars raised, with the heftiest donations expected after the October reporting deadline. Several candidates reported individual contributions of $5,000-the maximum allowed by law.
Barbour vetoed a bill passed earlier this year that called for limiting corporate contributions to PACs. However, he expressed support for other parts of the measure.
Jesse Rutledge, a spokesperson for Justice at Stake, a partnership of more than 40 state and national groups committed to keeping America’s courts fair and impartial, said Mississippi “has been a problem state when it comes to third party groups running TV ads and using names like Americans for Apple Pie, which says nothing about who they are, or their agenda before a court.”
“The level of money at the state level for Supreme Court races is undermining the confidence that Americans have in the court system and the rule of law,” he said. “Our research has shown that contributions made to judge’s campaigns do have an impact on how judges rule in the courtroom.”
Rutledge said the group has researched various methods of choosing Supreme Court judges and “the public financing plan North Carolina recently adopted is being watched carefully by other states who are considering the system, if it is successful. So far, it seems to be.”
“North Carolina’s model reduces the need for judicial candidates to raise money but still allows voters to select Supreme Court judges,” he said, quickly adding that “we don’t endorse one method over another.”
Chief Justice James W. Smith Jr., who won the seat vacated by retiring Chief Justice Roy Noble Lee in 1992 and was reelected in 2000, has called “the escalating campaign spending and the possibility of influencing judges” the greatest challenge facing the judiciary.
“I’ve seen the cost of taking on a position like this go from $25,000 to over a million,” said Smith. “The perception is there that judges can be bought, but 99% of the time, that’s not true. I have deliberately never up to this minute looked at my contribution list even though it’s on the Internet and I could call it up anytime. What little I do know is what I read in the newspapers when a motion is filed. I won’t look at that list until I’m no longer a judge. And I know other judges that espouse that same principle. It’s a mechanism we use to avoid having any contact whatsoever with the financial committees in place for our elections.”
Smith, an advocate for reform, favors an appointive judiciary. He is looking closely at North Carolina’s public finance model.
“I sent presiding Justice Cobb to North Carolina for a seminar on that subject last year,” he said. “I’ve looked in detail at New York’s program, which is undergoing extreme changes right now. I’m on record here as far back as 1988 espousing appointive judicial elections with a retention election-type system, similar to Missouri’s.
“I’d like to see the governor select justices from a list of several names, presented to him from independent sources, such as the lieutenant governor, The Mississippi Bar, business leaders and that sort of thing, with a retention election every 10 to 12 years. That would give a little more credence to the process. Nonetheless, it’s an uphill battle because people like to elect judges.”
Wiseman said state Supreme Court elections “used to come and go, and while we knew they were important, they were more of a question mark.”
“The fact that they’re non-partisan is significant because now we’ve found surrogates for the parties,” he said. “If you’re pro-business and pro-tort reform and that’s where your money flows, you’re more than likely a Republican. If you’re anti-tort reform and follow the trial lawyer dollars, you’ve likely found someone associated with the Democratic Party. I think the public is picking up on this. Hence, you’ve got more concern now than in the past with the question about whether we need to have appointed judges or continue to have elections that draw big money. The confusion does allow an out-of-state third party to play a bigger role than if we had party labels.”
Wiseman said he’s not sure it’s time to introduce partisan elections or switch to appointed judgeships.
“That doesn’t remove politics,” he said. “Some of the most political things I’ve ever seen are in the back rooms, scrambling and deal making for appointments. For now, it takes the politics behind the curtain. But I’m not saying what’s the lesser of two evils. It’s a quandary, that’s for sure.”
The North Carolina public finance solution may work best, “with a known pool of money once the election starts, and qualifying thresholds to see who gets what,” said Wiseman.
“The lack of public confidence in the impartiality of judges is not a huge problem yet in Mississippi, but as the public becomes more familiar with the process, the opportunity to erode confidence will certainly present itself. It’s already had some impact. When (Justice Lenore) Prather lost, she was caught unaware of what it’s like to run a political campaign.”
Contact MBJ contributing writer Lynne W. Jeter at firstname.lastname@example.org.