Posts Tagged ‘Bill Waller’

Josiah Coleman sworn in to Mississippi Supreme Court

Monday, January 7th, 2013

I enjoyed the swearing in ceremony today as Justices Michael Randolph and Leslie King returned to the Mississippi Supreme Court and Josiah Coleman was sworn in as the newest justice.  His formal investiture will be in Oxford later and the other justices, keeping with tradition, won’t partake in additional investitures.

(Justice Bill Waller, who performed the swearing-in ceremonies, was also reelected last year but was not sworn in during the ceremony today.  I’m sure there is some reason of protocol concerning the Mississippi Chief Justice that explains why.  Considering he is the first Chief Justice in at least twenty years to be reelected to retain his position, there may be a special ceremony for him. Due to the way the seat rotations and election years fall, Waller takes office on his new term in January 2014 and will be sworn in then.)

Here is the Court’s press release on the event.

Thomas Coleman, father of Josiah, served on the Mississippi Court of Appeals.  J.P. Coleman, Josiah’s grandfather, served as Mississippi Governor and Attorney General, served on the Mississippi Supreme Court and in the Mississippi legislature, and served on the U.S. Fifth Circuit Court of Appeals.

Here is a picture of Josiah - now Justice Coleman - with his wife Ashleigh and the administering of the Oath by Chief Justice Bill Waller, Jr.

Judicial Finance Reports - Trial lawyers, Republicans, big money, the usual suspects

Wednesday, October 31st, 2012

Here are some various observations on the pre-election campaign finance reports filed by candidates yesterday for Mississippi Supreme Court and Court of Appeals.

The two incumbents in the races have raised the most: Bill Waller ($470K) and Mike Randolph ($429K). But Flip Phillips has raised the most of a non-incumbent ($415K). Here is a chart with the numbers from this filing period as well as total year-to-date.

Central District

Bill Waller - Waller isn’t campaigning blind. His report notes $15,537 paid to the Tarrance Group for polling.

Some contributions of note to Waller include: Mississippi Federation of Republican Women ($500), 2003 GOP nominee for Attorney General Scott Newton ($500), Northern District MDOT Commissioner Mike Tagert ($500), Jim Barksdale ($500), Palazzo for Congress ($1000), Bomgar CEO Joel Bomgar ($1000), former Appeals Court Judge and MSGOP Chairman Jim Herring ($250), Koch Industries of Kansas ($1000), Mississippi Association of Educators PAC ($5000)

Earle Banks - Banks has spent $36,200 on media, $2500 on signs and $14,000 to Zata3 which does polling and robo-calls. He also advertised in the Rankin County News - a Republican and likely Waller area of strength.

Some contributions of note to Banks include: former Mississippi Supreme Court Justice Chuck McRae ($1000); Democratic Senator John Horhn ($500); Democratic Senator Bennie Turner ($350); Democratic Representative Bryant Clark ($2500), former Democratic Secretary of State Dick Molpus ($500); Shane Langston ($5000); and each in for $2500 McCraney, Montagnet & Quinn; Hawkin/Gibson; Porter & Malouf; the Diaz Law Firm; Merrida Coxwell; Rebecca Langston; Casey Langston Lott.

According to the report, Porter & Malouf gave $2500 on October 9 and another $5000 on October 29 which would clearly break the campaign contribution limits. To be fair, sometimes that happens in a campaign and typically the campaign will return the amount above the limit (which is what I assume they did with a $2500 disbursement to Shane Langston) - or - the contribution should have been listed as coming from an attorney at Porter & Malouf instead of the firm.

Northern District

Flip Phillips - Phillips has placed $307K on television and billboards and has paid $11,500 to Public Opinion Strategies for polling.

Some contributors of note to Phillips include: former Democratic Congressman Travis Childers ($500); author and former Democratic Representative John Grisham ($5000); former chief-of-staff to Governor Ronnie Musgrove David Cole ($500); the firm of Democratic State Representative David Baria, Baria-Williamson PLLC ($500); Democratic state Senator Bennie Turner ($500); the Kitchens Law Firm ($1000) made up of three sons of current Supreme Court Justice Jim Kitchens; Tracie Langston ($5000); the Liston family: Brenda Liston (Homemaker - $5000), William Liston III (Lawyer - $5000), Jeanne Liston (Homemaker - $5000), William Liston (Lawyer - $5000); Ashley Ogden ($5000); Christie Ogden ($5000); and many of the names you see above on the report from Earle Banks: Timothy Porter of Porter & Malouf ($2500), Patrick Malouf of Porter & Malouf ($2500), Casey Langston Lott ($5000), Hawkins/Gibson ($2500), Merrida Coxwell ($2500), the Diaz Law Firm ($2500), Shane Langston $2500. Phillips also posted $5750 in 48-hour-reports.

Josiah Coleman - Coleman has placed $110K on paid media. Some contributors of note to Coleman include: Mississippi Association of Educators PAC ($1000); former MSGOP Chairman Clark Reed ($500); Palazzo for Congress ($1000); Haley’s PAC ($1000); Koch Industries of Kansas ($1000); MS Federation of Republican Women ($500); Retzer Resources - former MSGOP Chairman & Ambassador to Tanzania Mike Retzer ($1000); Kelly Segars ($1000). Former Governor Haley Barbour is a big get for Josiah. A more interesting story from this report is the contribution from Segars, an Iuka physician who formerly served on Phillips Campaign Finance Committee and now has apparently retracted from that position to back Phillips’ opponent.

Southern District

Mike Randolph - Randolph spent $184K on media advertising and $16K on yard signs. A few noteworthy contributions include: Mississippi Federation of Repubican Women ($500); 2007 GOP nominee for Attorney General Al Hopkins ($250); Palazzo for Congress ($1000); Friends of Billy Hewes ($500); Koch Industries of Kansas ($1000).

Tal Braddock - Braddock received a $2000 loan from Strategic Financial Resources, LLC / Joseph Leland Speed.

Court of Appeals

EJ Russell - Russell spent $400 on radio advertising with WMPR and $800 on signs. She received $500 from MS Federation of Republican Women.

Ceola James - James…is still in the race.

A Final Thought

Trial lawyers are providing the bulk of contributions to Flip Phillips and Earle Banks with many of the same names on both reports, but the campaigns have mirror messages. Flip says his opponent lacks legal experience; meanwhile how many cases has Earle Banks been on as the attorney of record? Earle complains about the large amount of campaign funds his opponent has raised; meanwhile Flip is out-raising everyone but the incumbents. So if the issue isn’t experience and the issue isn’t “big money” then what could be motivating the supporters of Phillips and Banks?

The motivation is what it has long been in supreme court races in Mississippi. Banks opposed tort reform in the legislature. Phillips has argued that damage caps in tort reform are unconstitutional. The issue of the constitutionality of most of Mississippi’s tort reform has yet to have been addressed by the Mississippi Supreme Court. This race, despite the smoke and mirror attacks against Waller and Coleman, is really about the future of Mississippi’s business climate and lawsuits.

FACT CHECK #2 on the Earle Banks Personhood Video

Monday, October 29th, 2012

From the Earle Banks Personhood Video:

In 2011, only one judge in the Central District of Mississippi voted yes to put the Personhood Amendment on the ballot, Judge Bill Waller, Jr. All other Central District justices found the language unconstitutional and voted no.


Hinds County Circuit Court Judge Malcolm Harrison ruled against opponents of the Personhood Amendment when they sought to prevent the initiative from appearing on the ballot. Opponents of the Personhood Amendment appealed to the Mississippi Supreme Court.

The Court determined the constitutionality of the Personhood Amendment should come before the Court only if it passed. The Court doesn’t give advisory opinions on whether every bill introduced in the legislature is Constitutional or not; and it would not do so on a citizen initiative. The Court concluded: “Measure 26 is not ripe for review.” The amendment went on the ballot and was defeated, removing any need for a subsequent challenge of the language’s constitutionality.

Fact Check:

It is true that in the 7-2 decision, Justice Bill Waller was the only member of the majority from the Central District. The members in the Northern and Southern District were unanimous in support of the decision. Both dissenters came from the Central District.

It is not accurate to say the other justices found the language unconstitutional. They found the process unconstitutional. Justice Jim Kitchens writes in his dissent joined by Justice Leslie King:

The same task is before us today: to decide whether the text of Measure 26 meets the minimal constitutional requirements of Section 273. None of the parties has argued that Measure 26 runs afoul of the rights guaranteed the citizens by our Bill of Rights. Whether Measure 26 limits or expands the rights enumerated within Mississippi’s Bill of Rights is of no moment, for this Court is asked only whether the plain language of Measure 26 makes the initiative a “proposal, modification or repeal” of any portion of the Bill of Rights as prohibited by Section 273(5)(a)….I find that Measure 26 is invalid on its face, because it is both a proposed addition to and a modification of the Bill of Rights.

Because they believed the initiative and referendum process in this case would alter the Bill of Rights, and it is unconstitutional for I&R to alter the Bill of Rights, they found the process - not the language - unconstitutional.

So to the video, to claim that the “other Central District justices found the language unconstitutional” is not accurate. That claim is not a fact.

FACT CHECK #1 on the Earle Banks Personhood Video

Saturday, October 27th, 2012

From the Earle Banks Personhood Video:

Justice Waller is no fan of women having choices. In fact, this is how he feels on the record:

“Ever since the abomination known as Roe v. Wade became the law of the land, the morality of our great nation has slipped ever so downwards to the point that the decision to spare the life of an unborn child has become an arbitrary decision based on convenience.” R.B. ex rel. V.D. v. State, 790 So.2d 830 (July 19, 2001) [J. Waller, concurring]


This case was whether Panola County Chancery Court Judge Jay Westfaul was correct in denying a waiver of parental consent for a minor to have an abortion, based on the criteria for a waiver listed in Mississippi law involving surgical and medical consents.

Mississippi Code 41-41-55

(4) Consent shall be waived if the court finds by clear and convincing evidence either:

(a) That the minor is mature and well-informed enough to make the abortion decision on her own; or

(b) That performance of the abortion would be in the best interests of the minor.

Mississippi Supreme Court:

The Mississippi Supreme Court determined:

that the chancellor thoughtfully considered the evidence before him and correctly decided the case in denying the abortion, we should not second guess his decision or add verbiage to it.

You can read the full opinion here.

Justice Jim Smith wrote the majority opinion. Justice Bill Waller did concur with the majority opinion along with Justices Ed Pittman, Michael Mills, Oliver Diaz, and the only female justice on the Court at the time, Kay Cobb.

But the quote from the video is not from the majority opinion.  It is from a concurring opinion written by Justice Chuck Easley, in which Cobb and Waller joined “in part.”

Fact Check:

Given simply the opinion, it is not accurate to say Waller concurred with that statement.  By the same standard, it would also not be accurate to say Waller disagreed with that statement.  Neither can be proven.  It is not even accurate to say the he “concurred in part” with that excerpted statement because he may have disagreed with that statement and agreed with other parts of Easley’s opinion.

So to the video, to claim that quote is how Waller “feels on the record” is not accurate. That claim is not a fact.

Waller raises $375K & supported by Reuben Anderson

Friday, October 19th, 2012

The campaign of Chief Justice Bill Waller raised the most this period and total so far this election of any candidate. He has raised to date $375,624.01. The campaign of his opponent, Earl Banks, has raised to date on this report $45,734.

BANKS - Cynthia Wood, of Wood Funeral Home Inc., of Philadelphia, Pennsylvania was the largest contributor to Banks this cycle with a gift of $5000. Other notable contributions include Timothy Porter $2500, Edward A. Williamson P.A. $2000, and T. Mark Sledge and John Stevens at $1250 each.

WALLER – Reuben Anderson, the first African-American Mississippi Supreme Court Justice (now retired), contributed $300 to Waller. Of interest is that Anderson tried to decline his 1985 appointment to the Supreme Court in favor of his friend and former law partner Fred Banks, cousin to Waller’s opponent in this race.

Other notable contributors to Waller’s campaign include former Chief Justice Ed Pittman ($500); Retired U.S. Fifth Circuit Court of Appeals Justice Charles Pickering, Sr. ($500); former Court of Appeals Justice Jim Herring ($500); retired Supreme Court Justice Kay Cobb ($250); former Mississippi Treasurer Peyton Prospere ($500); Hinds County Supervisor Phil Fisher ($500); Transportation Commissioner Dick Hall ($250); Representative Rita Martinson ($250); Richland Mayor Mark Scarborough ($500); former state Senator Richard White ($500); former Representative Jim Ellington ($250); retired oilman Billy Mounger ($5000); and Pruet Oil executives Randy James ($5000) and Rick Calhoun ($4000).

PAC contributions this cycle include MCPA PAC ($1000); AIA-SEINS PAC ($2000); MS Medical PAC ($5000); ENPAC ($2000); MS Manufactured Housing ($2000); Prosperity PAC ($2500); MS AGC PAC ($5000); Truck PAC ($2500); MS Road Builders Association PAC ($2000); Bancorpsouth PAC ($1000); MS Bankers Association PAC ($5000); Electric Power Association of MS PAC ($1000); MS Petroleum Marketers & Convenience Store Association PAC ($500); MS Propane Gas Association PAC ($500); MADA Auto PAC ($1000); MS Poultry Association PAC ($2000); MHA PAC ($5000); MMA PAC ($5000); and MS Realtors PAC ($5000).

Banks got a little media attention with his attack on Waller for accepting PAC contributions (see post here) but he hasn’t put together the financing to promote himself or push that attack message. So far, Waller has focused on positive campaigning and has not been critical of Banks. Waller has the money to run a strong reelection campaign for these final few weeks and Banks will have to hope that the Democratic leaning central district will go toward him on election day if he is going to have a chance.

UPDATE: Thanks to the commenter who noted the proper way to view the source box checks. The box is to the left of the word and not the right. The final box is for the “Other” line below which is what mixed me up.  The question was answered and it appears the contribution was not checked as a PAC.  The post has been revised to reflect this update.

NFIB endorses Waller, Randolph, Coleman, Russell

Tuesday, October 9th, 2012

NFIB/Mississippi, the state’s leading small business association, announced its endorsements yesterday in the upcoming Mississippi judicial races.

From the release–

NFIB/Mississippi has announced its endorsements in the 2012 state judicial races:

District 1 (Central), Position 1: William L. (Bill) Waller Jr. (incumbent)
District 2 (Southern), Position 3: Mike Randolph (incumbent)
District 3 (Northern), Position 3: Josiah Dennis Coleman (open seat)

District 2, Position 2: Ermea (E.J.) Russell (incumbent)

“The courts can have a tremendous influence on Mississippi’s small-business community, especially when it comes to litigation,” said Ron Aldridge, state director of NFIB/Mississippi. “We need judges who will be fair and impartial to everyone and won’t legislate from the bench.”

“These judicial races matter because certain trial lawyers are still trying to tip the scales of justice and elect a court that would strike down the tort reform laws we fought so hard to pass,” said Aldridge.  “They’ve been successful in other states.  This election is a chance to make sure they will not turn back the clock.  Our economic uncertainty right now is bad enough, but lest we forget how, prior to those laws, every Mississippi small business was one lawsuit away from bankruptcy.”

The endorsements come from the NFIB/Mississippi SAFE (Save America’s Free Enterprise) Trust, which is comprised exclusively of NFIB members, and are based on a survey of NFIB members in Mississippi and candidates’ histories of bringing fairness and impartiality to the bench.

Small business owners and their employees vote in high numbers and are known for actively recruiting friends, family members and acquaintances to go to the polls. NFIB has pledged it will activate its grassroots network on behalf of these candidates.

Forget “Fair”? Banks promises “tough” & “not soft” on crime

Monday, October 8th, 2012

At last week’s Stennis-Capitol Press lunch, Representative Earle Banks criticized the campaign of Chief Justice Bill Waller for accepting contributions from political action committees. He suggested such contributions could influence a justice and Banks pledged not to accept any himself. Later, when asked by WAPT’s Scott Simmons, Banks did admit accepting PAC contributions in the past during his legislative campaigns. So I guess either Earle Banks has a guilty conscience for feeling influenced as a legislator by these PAC contributions – or - he knows you can receive contributions and not be influenced (in which his criticism rings hollow).

Candidates who run on the issue of not accepting certain kinds of contributions - even though they are legal - typically fall into one of two categories: 1) Ideologues like the late Senator Paul Wellstone who refused to accept PAC money or 2) Underdogs unlikely to receive the money anyway. (It should be noted that Wellstone was both during his first Senate campaign, and neither during his last campaign.)

As I listened to Banks make the PAC attack, I thought he sounded like a candidate who had not received any PAC money and did not anticipate receiving any PAC money. Of course, that makes attacking your opponent for receiving PAC money pretty easy.

There has been a lot of coverage of the back-and-forth on PACs from the forum. If anything in politics is “sexy” it is campaign finance attacks.

But I’m surprised no one covered the real news from the forum that speaks directly to the issue of the campaign: fairness by a judge.

During his monologue Banks promised, “I have been tough on crime and I am going to tell you about crime. You can never say that I, Earle banks, will be soft on crime. Because I have been a victim of crime. I’ve had two murders in my family. A great uncle and my father, both killed by bullets.”

Banks continued his speech explaining further that because he has been a victim of crime, he would be tough on crime and concluded by telling the reporters and observers that you can trust him to keep his word and keep his promise.

The Mississippi Code of Judicial Conduct (here at page 30/31) prohibits a judicial candidate from making “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office.” [Canon 5A(3)(d)(i)]. The commentary for that section is explicit: “Phrases such as “tough on crime,” “soft on crime,” “pro-business,” “anti-business,” “pro-life,” “pro-choice,” or in any similar characterizations suggesting personal views on issues which may come before the courts, when applied to the candidate or an opponent, may be considered to be prohibited by Section 5A(3)(d) only when used in a context which contain a pledge or promise to decide cases in a particular manner.

I guess a defender of Banks could argue his promise to be tough on crime is not a promise to decide a case tough on crime. But there could be a question of whether a judge who promises to be tough on crime will be fair in reviewing criminal cases. Maybe Banks hopes to be another Chuck Easley who in 2000 defeated a sitting Chief Justice on the same kind of promises. Easley was tough on crime - as I recall, he never sided with the accused in a criminal appeal - even if he was the lone and unpublished dissenting vote.

Now politically, most voters like someone to be “tough on crime.” It is hard to campaign on the promise that you will be “fair on crime.” And a candidate for judge would find it difficult to attack an opponent for being “tough on crime.” Also, whose votes do you lose for being “tough on crime” other than criminals (many of whom can’t or don’t vote)?

But still, I think that when a candidate for the Mississippi Supreme Court said he has been a victim of crime, his family has been victimized by crime, and so he is going to be tough on crime and you can trust him to keep his word on that - which arguably is a pledge that may violate judicial ethics rules – it is noteworthy.

Personally, I think if we’re going to elect judges we should let them campaign like other candidates: free to choose and be listed according to party affiliation; free to speak on any issues they want; free to accept contributions without limits like other state candidates.

But currently, we don’t. In the immortal words of Walter Sobchak, “This is not ‘Nam…there are rules.”

We have rules for judicial candidates and some may argue Banks broke one of them - just a minor one, just the one that says a judge will promise to be fair.

Court’s punt on damages shifts attention to Northern District campaign

Friday, August 24th, 2012

The Mississippi Supreme Court’s decision to decline to answer the U.S. Fifth Circuit on whether Mississippi’s cap on non-economic damages is Constitutional postpones the inevitable: an eventual answer. Justice Mike Randolph wrote on behalf of the majority, “The constitutionality of a statute is not to be addressed ‘abstractly, speculatively, or in the manner of an academic discussion’ but rather in the context of its clear application.”

One day a case with clear application will be decided by the Mississippi Supreme Court. That day will come after this November’s elections in which three seats on the Court are being contested, a fourth - Justice Leslie King - has no opposition.

In the Southern District, Justice Randolph faces Gerald Talmadge Braddock. I wrote back in July:

Challenging Randolph is Gerald Talmadge Braddock, a Vicksburg native practicing law in Hattiesburg where his firm specializes in “serious personal injury, matrimonial law, and criminal defense.” Braddock lists his “area of expertise” as “DUI cases, Mass Tort Litigation with major pharmaceutical manufacturing companies, personal injury claims, criminal defense.” On his web site, Braddock notes he is the youngest lifetime member of the Mississippi Trial Lawyer Association (now called the Mississippi Association for Justice) where he says he serves on the Board of Governors.

Braddock recently opened a Gulf Coast office to focus on litigation regarding the Deep Horizon oil drill disaster. Last month he said on his Twitter account, “If somebody said ‘Free Money In Mississippi’, there would be a riot. Well, I’m saying it, ‘Free Money In Mississippi From the BP Oil Spill’”.

Randolph’s campaign is well funded, supported by all sides of the legal community, well organized and should be successful over Braddock who has struggled to gain financial support or build a grassroots network.

In the Central District, Chief Justice Bill Waller, Jr. faces State Representative Earle Banks. As I wrote last month, the nature of the district makes this race competitive, despite Waller’s fundraising and organization advantages. Banks consistently opposed tort reform in the legislature, there is no indication he would change his mind on the Court.

A victory by Braddock or Banks would create a seismic shift on the Court in favor of trial lawyers. But for those supporting Mississippi’s tort reform including the caps on non-economic damages, the greatest concern should be the open race in the Northern District.

Josiah Coleman, a defense attorney from Oxford, has been endorsed by the Mississippi Association of Realtors, the Mississippi Medical PAC, BIPEC and the Mississippi Manufactures Association. The Mississippi Republican Party endorsed Coleman and this week an e-mail from GOP National Committeeman Henry Barbour and former GOP Chairmen Brad White, Arnie Hedermann and retired Judge Jim Herring (a Fordice appointee formerly on the Court of Appeals) endorsed Coleman and blasted his opponent Flip Phillips:

But while business organizations are rallying around Josiah, his opponent – Flip Phillips – is attempting to conceal his liberal Democrat ties. The truth is Flip Phillips is the former President of the Mississippi Trial Lawyer’s Association and has contributed upwards of $15,000 to Ronnie Musgrove, Jim Hood, Chuck McRae and the Democrat National Committee. He also led the legal effort to overturn the tort reform that helped stop trial lawyers from making Mississippi a legal hellhole.

Phillips is not just a practicing trial lawyer, he is a philosophical advocate for the plaintiffs bar and his election to the Court would not just be a vote but a clever voice of persuasion to move the Court away from the established balance. From my column in June:

Coleman’s opponent is Richard T. “Flip” Phillips of Batesville, a former president of the Mississippi Trial Lawyers Association (now Mississippi Association for Justice). Early in the campaign, Phillips, a well regarded and successful attorney, was being presented to many in the business community as a candidate they could support. But his view of the civil justice system, as discussed in an article published in the Mississippi Law Journal in 2001 titled “Class Actions & Joinder in Mississippi” is exactly the opposite of what state business interests want in a judge.

Phillips wrote, “the fundamental purpose of civil litigation today is shifting from a strictly compensatory purpose to regulatory or punitive purposes.” At a symposium discussing the article, he argued Mississippi became “lawsuit central” in the country not because of the excessively high verdicts, but rather, because the rest of the country was not as enlightened as Mississippi. Rather than reform lawsuit abuse in Mississippi, he seemed to argue the rest of the country should become more like the Magnolia State. In another presentation Phillips argued the elected branches of government have failed to do their jobs and “regulation by litigation” could address policy issues involving tobacco, guns, insurance, health care and product liability.

Because the constitutionality of damage caps could come before the Court, Phillips and Coleman can’t address the issue in the campaign. However, in a 2009 case from DeSoto County, Phillips represented a plaintiff against a construction company who won a $30 million judgment: $13.7 million in noneconomic damages. Because of the damages cap, the trial judge reduced that portion of the verdict to $1 million, leaving $17.2 million for the plaintiff. Phillips appealed arguing the damage cap was unconstitutional and asked the Court to strike it down. The plaintiff and the construction company settled before the Court had an opportunity to decide the issue.

The Court’s decision yesterday not to answer on the constitutionality of Mississippi’s non-economic damage caps should focus attention on the race in the Northern District. While it is unknown how the Court will rule when the question finally and fully comes before it, the perspective of Phillips is clearly known as he has argued before the Court it is unconstitutional.

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