COM'N ON JUDICIAL PERFORMANCE v. THOMPSON No. 2011-JP-00555-SCT.
80 So.3d 86 (2012)
MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Rickey W. THOMPSON.
Supreme Court of Mississippi.
January 26, 2012.
Darlene D. Ballard , John B. Toney , attorneys for appellant.
Jim Waide , Tupelo, attorney for appellee.
¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed a Formal Complaint against Rickey W. Thompson, Justice Court Judge, District Four, Lee County, Mississippi. The multicount complaint charged Judge Thompson with numerous instances of judicial misconduct, causing such alleged conduct to be actionable under Article 6, Section 177A of the Mississippi Constitution of 1890. Ultimately, the Commission and Judge Thompson submitted to this Court a joint motion for approval of a recommendation that Judge Thompson be publicly reprimanded, suspended from office for a period of thirty (30) days without pay, fined the sum of $2,000 and assessed costs in the amount of $100. For the reasons discussed below, we adopt the joint recommendation of the Commission and Judge Thompson.
A. Facts and Proceedings Before the Commission and General Discussion of the Charges of Judicial Misconduct
¶ 2. On August 5, 2009, the Commission filed a multicount formal complaint concerning Judge Thompson, a justice court judge in Lee County, alleging willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Twenty-six counts were contained in the formal complaint (twenty-five counts actually charged Judge Thompson with judicial misconduct); however, nine counts were redacted in the record filed with us, and eleven counts were consolidated. These eleven consolidated counts charge that Judge Thompson improperly disposed of cases involving separate charges of individuals operating a motor vehicle with no proof of liability insurance. Judge Thompson filed his answer on August 31, 2009, essentially denying the allegations of the complaint. Thereafter, on March 11, 2011, an Agreed Statement of Facts and Proposed Recommendation (Agreement) was submitted and filed by the parties regarding the allegations contained in this complaint. This Agreement addressed the six remaining counts.
¶ 3. This Court makes the "final determination of the appropriate action to be taken in each case" coming before it from the Mississippi Commission on Judicial Performance, "conduct[ing] an independent inquiry of the record" and "accord[ing] careful consideration [of] the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses." Miss. Comm'n on Judicial Performance v. Boone, 60 So.3d 172, 176 (Miss.2011) (quoting In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743, 746 (Miss.1982)).
¶ 4. According to the agreed facts:
¶ 5. Under these agreed facts, Judge Thompson involved himself in a case that was not before him. It is true that Judge Thompson may have believed that the facts amounted to a civil rather than a criminal matter, and this Court does not sanction judges for mistakes of law. Miss. Comm'n on Judicial Performance v. Martin, 921 So.2d 1258, 1268 (Miss.2005). In the Martin case, this Court dismissed the proposed sanctions of the Commission where Judge Martin erred in denying bail on two separate occasions. Id. at 1264. In that case, this Court held that:
Id. at 1264 (citing Miss. Comm'n on Judicial Performance v. Carr, 786 So.2d 1055, 1058-59 (Miss.2001)).
¶ 6. Contrary to the facts in Martin, Judge Thompson's communication with the sheriff's office crossed the line into involving himself in a criminal investigation at a time when there was no case pending before him concerning the matter.
¶ 7. According to the agreed facts:
¶ 8. Judge Thompson signed an order where there was no case pending and engaged in ex parte discussions in the facts of this count.
¶ 9. According to the agreed facts:
¶ 10. The facts provided indicate an ex parte communication among Judge Thompson, Galloway, and Galloway's father. Also, no notice was given to prosecuting authorities, and Judge Thompson unquestionably interfered in a case that was assigned to Judge Sheffield.
¶ 11. The case is distinguishable from this Court's recent opinions in Mississippi Commission on Judicial Performance v. McGee, 71 So.3d 578, 589 (Miss.2011); and Mississippi Commission on Judicial Performance v. Little, 72 So.3d 501 (Miss. 2011) In those cases, justice court judges admitted to remanding, nonadjudicating, or retiring to the files several DUI charges at the request of a county prosecutor. McGee, 71 So.3d at 582-83; Little, 72 So.3d at 502. This Court dismissed those counts with prejudice, holding that, even if the judges had improperly disposed of the DUI charges, that was only a mistake of law and not sanctionable. McGee, 71 So.3d at 584-85; Little, 72 So.3d at 504. However, unlike the DUI charges in McGee and Little, the agreed facts in Judge Thompson's case describe other sanctionable actions: an ex parte communication with the parties, no notice to prosecuting authorities, and interfering in a case assigned to another judge.
¶ 12. According to the agreed facts:
¶ 13. The misconduct in this count is apparent. This Court consistently has sanctioned judges for interfering with the orders of another judge. See Miss. Comm'n on Judicial Performance v. Britton, 936 So.2d 898, 903-04 (Miss.2006); Miss. Comm'n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), overruled in part on other grounds by Miss. Comm'n on Judicial Performance v. Boone, 60 So.3d 172 (Miss.2011); In re Bailey, 541 So.2d 1036, 1039 (Miss.1989).
¶ 14. According to the agreed facts:
¶ 15. The agreed facts tell us that the defendants "supplied proof of insurance obtained after the fact." The Commission should have used clearer language as to whether it was the proof of insurance, or the insurance itself, that was obtained after the fact. However, in context, it is clear that the Commission is not discussing proof obtained after the fact, where the insurance was already in effect, but rather proof of insurance which itself was obtained after the fact.
¶ 16. The question is thus whether this repeated conduct constitutes "negligence, ignorance, and incompetence [which] suffice as grounds for behavior to be classified as prejudicial to the administration of justice which brings the judicial office into disrepute and thus worthy of sanctions" under Martin, 921 So.2d at 1264, or merely a mistake of law. Eleven instances alleged in a four-month period rise above the level of a mere mistake and constitute behavior prejudicial to the administration of justice and worthy of sanctions.
¶ 17. According to the agreed facts:
¶ 18. The facts do not clearly state that a matter was actually pending in the chancery court, but it is implied—the couple is described as "involved in a divorce." Judge Thompson improperly involved himself in a domestic civil matter. The facts further indicate that there was an improper ex parte communication with the male, and that Judge Thompson improperly attempted to aid the litigant by telephoning the officer.
¶ 19. The Commission discusses the Respondent's violations in the agreed facts:
¶ 20. This Court repeatedly has held that a judge should not engage in ex parte communication, most notably in Boone, 60 So.3d at 182. Judge Thompson did so under the facts alleged in Counts One, Two, Three, Four and Six.
¶ 21. Interfering with the orders of another judge has been found to constitute willful misconduct which brings the judicial office into disrepute. See Miss. Comm'n on Judicial Performance v. Britton, 936 So.2d 898, 903 (Miss.2006). Judge Thompson clearly did so in the facts of Count Four.
¶ 22. In Mississippi Commission on Judicial Performance v. Patton, 57 So.3d 626, 634 (Miss.2011), this Court found that Judge Patton had ignored the Code of Judicial Conduct and deprived citizens of their due process rights when, following ex parte contact, he signed orders in cases involving contempt without the parties being properly notified of the charge or a right to a hearing. The Court imposed a public reprimand, suspension of thirty days without pay, and costs. See also Miss. Comm'n on Judicial Performance v. Vess, 10 So.3d 486, 488 (Miss.2009) (public reprimand, fine of $2,000 and costs where judge engaged in ex parte communication and failed to provide notice to litigants); and Miss. Comm'n on Judicial Performance v. Hartzog, 646 So.2d 1319, 1322 (Miss.1994) (public reprimand where judge signed an order requiring that a prisoner be returned to the county when no case was pending before his court). Here, in Count Two, Judge Thompson signed an order presented to him by an attorney when no case was pending before the Court.
¶ 23. In Mississippi Commission on Judicial Performance v. Carr, 990 So.2d 763, 765 (Miss.2008), overruled in part on other grounds by Boone, 60 So.3d 172, Judge Carr used his position as a justice court judge to threaten a citizen with arrest at a time when no criminal charges were pending against her. Id. at 765. Judge Carr received a public reprimand, a sixty-day suspension without pay, a $2,000 fine and costs. Id. at 771. In the instant case, Judge Thompson interjected himself into two separate civil matters at a time when no case was pending before him by instructing the sheriff's department to cease investigation of a matter in Count One, and by advising a divorce litigant in Count Six.
¶ 24. Regarding Count Five, in numerous instances, either intentionally or through ignorance, a judge has failed to follow statutory dictates, thereby resulting in disciplinary sanctions. See Miss. Comm'n on Judicial Performance v. T.T., 922 So.2d 781, 785 (Miss.2006) ("Judges are required to research, read, know and apply the pertinent statutes and case law."); Miss. Comm'n on Judicial Performance v. Neal, 774 So.2d 414, 416-17 (Miss.2000) (respondent's argument that
B. Discussion of Sanctions
¶ 25. The Commission recommends sanctions of a public reprimand, suspension from office for a thirty-day period, a fine of $2,000, and costs in the amount of $100. Assuming sanctions are warranted, our analysis considers the six factors established by Gibson, 883 So.2d at 1158.
1. The length and character of the judge's public service
¶ 26. The respondent is in his second term as justice court judge and has qualified for re-election. The record is silent as to the character of his service.
2. Whether there is any prior caselaw on point.
¶ 27. In addition to the cases discussed above, several other cases are relevant.
¶ 28. In Mississippi Commission on Judicial Performance v. McPhail, 874 So.2d 441, 442-43 (Miss.2004), a judge misdated a judgment resulting in a litigant losing his right to appeal, entered a judgment based on ex parte contact, set aside a judgment after engaging in ex parte communications, gave legal advice and injected himself ex parte into a pending domestic-abuse case before his court, and failed to render a decision in a case after taking it under advisement. This Court ordered a public reprimand, a suspension for thirty days without pay, and costs of the proceeding. Id. at 445.
¶ 29. In Mississippi Commission on Judicial Performance v. Cowart, 936 So.2d 343, 345-48 (Miss.2006), the judge committed impermissible ex parte contacts, presided over a case after acknowledging a conflict, assisted others in avoiding prosecution, requested that an officer dismiss a ticket, and improperly handled fine money. This Court found that the above conduct warranted a public reprimand, a thirty-day suspension without pay and the payment of costs. Id. at 351.
¶ 30. In Mississippi Commission on Judicial Performance v. Roberts, 952 So.2d 934, 935-37 (Miss.2007), the judge committed multiple violations involving improper arrests, issuing arrest warrants without legal justification, threatening defendants and lawyers and otherwise improperly using the power of his office. This Court ordered a public reprimand, suspension from office without pay for a period of thirty days, a fine of $1,500 and payment of costs. Id. at 943.
¶ 31. In Mississippi Commission on Judicial Performance v. Bradford, 18 So.3d 251, 253 (Miss.2009), the judge engaged in ex parte communications, violated Rule 2.06 of the Uniform Rules of Procedure
3. The magnitude of the offense and the harm suffered
¶ 32. By engaging in the aforementioned conduct, Judge Thompson failed to avoid impropriety, caused his impartiality to be questioned, and jeopardized the integrity and independence of the judiciary, thereby eroding public confidence in him as a judicial officer and in our state's judiciary as a whole.
4. Whether the misconduct is an isolated incident or evidences a pattern of conduct.
¶ 33. In 2006, the Commission held a hearing on a formal complaint against Judge Thompson, and it found that he had engaged in ex parte communications with a litigant, attempted to mediate the dispute and subsequently issued a criminal warrant in a civil case, resulting in a private admonishment. Thereafter, this Court ordered a public reprimand and costs in a case in which Judge Thompson had interjected himself into a case involving relatives in an attempt to prevent a warrant being issued and served. Miss. Comm'n on Judicial Performance v. Thompson, 972 So.2d 582, 590 (Miss.2008), overruled in part on other grounds by Boone, 60 So.3d 172 (Miss.2011).
5. Whether moral turpitude was involved.
¶ 34. Moral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute. Gibson, 883 So.2d at 1158. In Mississippi Commission on Judicial Performance v. Sanford, 941 So.2d 209, 217 (Miss.2006), this Court expanded the definition of moral turpitude to include a violation of "some of the basic tenets of daily living in a civil society, such as living by standards of fundamental decency and honesty by not abusing the judicial process, and by revering the law and the judicial system, and upholding the dignity and respect of the judiciary through appropriate conduct and behavior toward others." Id. at 217. The totality of Judge Thompson's actions did impede or interfere with the administration of justice. The Commission asserts that the misconduct rose to the level of moral turpitude, and we agree.
6. The presence or absence of mitigating factors
¶ 35. Mitigating factors are present in light of the fact that Judge Thompson has agreed that his actions were improper and has entered into an Agreed Statement with the Commission without the requirement of a hearing. The Commission considered that Judge Thompson was the sole misdemeanor drug-court judge in Lee County and that a period of suspension longer than thirty days would cause a significant disruption of the function of the drug court; thus, a $2,000 fine was recommended in lieu of additional suspension time.
¶ 36. In addition, a petition in support of Judge Thompson has been submitted to this Court, signed by numerous citizens of Lee County.
C. Discussion of Lack of Clarity and Specificity
¶ 37. The Commission's brief is unnecessarily vague in its description of the
¶ 38. In the context of the instant case, we find that the Commission's allegations are clear and convincing in establishing a pattern of judicial misconduct by Judge Thompson. However, we note that in other cases, such a lack of clarity and specificity might prove fatal, requiring a dismissal of the case, or, at the very least, remanding the case for further development of the facts. We recommend that in the future, the Commission err on the side of caution and include all relevant information in each count, including the specific canons which are alleged to have been violated.
¶ 39. Having considered the record before us and having applied the Gibson factors consistent with our caselaw, we find that the Agreed Statement of Facts and Proposed Recommendation jointly submitted by the Commission and Judge Thompson should be adopted in toto.
¶ 40. Judge Thompson has engaged in six counts of judicial misconduct prejudicial to the administration of justice which brought the judicial office into disrepute. We thus order that Judge Thompson be publicly reprimanded, suspended from office for thirty days, fined $2,000, and assessed costs of the proceeding in the amount of $100. The public reprimand shall be read in open court by the presiding judge of the Circuit Court of Lee County on the first day of the next term of that Court in which a jury venire is present after the issuance of this Court's mandate in this case, with Judge Thompson present.
¶ 41. The Clerk of this Court shall send copies of this opinion and the mandate of this Court to the Chancery Clerk of Lee County, and to the Circuit Clerk of Lee County, as well as to the Lee County Justice Court Clerk, the County Administrator of Lee County, and the Lee County Board of Supervisors.
WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, PIERCE AND KING, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION. CHANDLER, J., NOT PARTICIPATING.
KITCHENS, Justice, dissenting:
¶ 43. While I agree that the conduct described in Counts Two and Four warrants sanctions, I cannot, with any confidence, agree that Counts One, Three, Five, and Six provide sufficient and clear facts that would enable this Court to make "a final determination of the appropriate action
¶ 44. As to Count One, it is unclear from the agreed facts which of Judge Thompson's actions violated the Mississippi Code of Judicial Conduct; but the majority finds Judge Thompson's supposed communication with the sheriff's office amounted to "involv[ing] himself in a criminal investigation at a time when there was no case pending before him involving the matter." Maj. Op. ¶ 6. However, the quoted language comes from the brief filed by the Commission, which was not signed by Judge Thompson or his counsel. In addition, Thompson does not admit in the agreed facts that he actually did communicate with the sheriff's office, rather, he simply acknowledges that "Rogers received a letter from the Sheriff of Lee County, Mississippi advising him that Respondent instructed his office to take no action, as the matter was a civil matter."
¶ 45. Even if Judge Thompson did communicate with the sheriff's office, the record before us does not establish that a criminal "investigation" or "case" even existed. We are not told whether the sheriff's office thought an investigation of Rogers's claim was warranted, and there is nothing in the agreed facts to tell us that the sheriff's office even suspected that a crime had been committed. Rogers apparently was attempting to have the owner of the land charged with theft of livestock, a felony under Mississippi Code Section 97-17-53 (Rev. 2006); thus, Judge Thompson's "refus[ing] to allow" Rogers to file a criminal affidavit would not have precluded the State from proceeding with an investigation and, possibly, with an indictment. See Miss.Code Ann. § 99-33-1(2) (Rev. 2007) (granting justice courts jurisdiction, concurrent with circuit courts, over misdemeanor criminal charges).
¶ 46. Notably, the matter ultimately was handled through a civil action, and the agreed facts do not reveal that the State ever attempted to pursue a criminal indictment. Therefore, it does not appear that Judge Thompson made a "mistake of law" in "advising Rogers that the case was a civil case." Maj. Op. ¶ 5. Indeed, judges are constitutionally prohibited from issuing arrest warrants in the absence of a belief that probable cause exists. U.S. Const. amend. IV; Miss. Const. art. 3, § 23. Thus, the agreed facts indicate that Judge Thompson was simply performing his constitutional duty by "advising Rogers that the case was a civil case" in which a criminal charge would not have been appropriate.
¶ 48. In discussing Count Three, the majority distinguishes Judge Thompson's actions from those addressed in two recent cases, McGee, 71 So.3d 578, and Mississippi Commission on Judicial Performance v. Little, 72 So.3d 501 (Miss.2011), by explaining that Judge Thompson engaged in ex parte communication with the parties, gave no notice to prosecuting authorities, and that he interfered with a case assigned to another judge. I do not find the agreed facts to be so clear. We are told that "Respondent had previously nonadjudicated the minor," but we are not told whether the nonadjudication was for the July 21, 2008, DUI charge or for some other infraction. We also are told that the DUI case was originally assigned to another justice court judge, but it is not clear whether the case was still assigned to another judge when Judge Thompson nonadjudicated the charge. Next, we are told that "[w]hen the officer came into the clerk's office to inspect the file prior to court, it was discovered that Respondent had previously nonadjudicated the minor. . . ." This suggests that no notice was given to the prosecuting authorities; but, similarly, this is not entirely clear from the facts presented to us. Finally, Judge Thompson nonadjudicated the charge "at the request of Galloway and her father." This implies that an improper ex parte communication took place, but the request may also have been in the form of a properly noticed motion. There simply are too many gaps in the agreed facts to warrant sanctions; this Court has not been provided a sufficiently clear and complete statement of the relevant facts and circumstances.
¶ 49. The agreed facts in Count Five say that the defendants "supplied proof of insurance obtained after the fact." Unlike the majority, I decline to speculate whether "obtained after the fact" refers to the proof of insurance document or to insurance coverage itself. If the proof of insurance was obtained after the citation, but coverage existed when the citation was issued, Judge Thompson was correct to dismiss the cases.
¶ 50. Yet, even if insurance coverage was obtained after the citation was issued, there is nothing to indicate that Judge Thompson's dismissing the cases was anything more than a mistake of law on his part. The majority imputes knowledge to Judge Thompson based on eleven instances over a four-month period. Maj. Op. ¶ 6. But, repeating a mistake would not make the conduct willful unless and until Judge Thompson had been disabused of his misunderstanding. A person—even a judge— can repeat the same mistake an infinite number of times without knowing it to be a mistake. Again, the agreed facts, as written, do not describe sanctionable misconduct.
¶ 51. As to Count Six, the majority finds that Judge Thompson "interjected himself into [a] separate civil matter . . . when no case was pending before him . . . by advising a divorce litigant." Maj. Op. ¶ 23. But, the facts do not clearly disclose that a filed matter actually was pending in the chancery court. We are told only that a male person was "involved in a divorce" and that "[t]he officer was advised by his dispatcher that any order concerning the matter must come from the Chancery Court judge." On the other hand, the parties were before Judge Thompson on "a family disturbance matter." Given the generic description of the type of case before Judge Thompson, and given that it is not apparent whether a matter had been filed and was then an active case in chancery court, I cannot say with confidence that Judge Thompson "improperly involved himself in a domestic civil matter . . . when there was no case pending before him." Maj. Op. ¶¶ 18, 23.
¶ 52. The facts do suggest that there may have been an improper ex parte communication with the man involved, and that Judge Thompson may have attempted, improperly, to aid the litigant by personally telephoning the officer; but, once again, the agreed facts are ambiguous. Despite the majority's finding to the contrary, Judge Thompson did not admit in the agreed facts that he had "advis[ed] a divorce litigant." Maj. Op. ¶ 23. Moreover, there are numerous scenarios in which a justice court judge legitimately can be involved in domestic matters pending in
Duty to Report Attorney Misconduct
¶ 53. Finally, although I agree that Counts Two and Four provide a sufficient factual basis for sanctions against Judge Thompson, our ruling should not be limited to the judge. In both situations, members of the Mississippi Bar played active roles in the misconduct. Our Rules of Professional Conduct tell us that, "[i]t is professional misconduct for a lawyer to. . . knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law." Miss. R. of Prof'l Conduct 8.4(f). In addition,
Miss. R. of Prof'l Conduct 8.3(a). In the present case, Counts Two and Four involved lawyers' asking a nonlawyer judge to engage in conduct that this Court has adjudicated sanctionable. Thus, as a matter of law, these lawyers seem to have violated Rule 8.4(f), and as members of the Bar, we justices are duty-bound to report this apparent professional misconduct. Miss. R. of Prof'l Conduct 8.3.
¶ 54. Moreover, at least five members of the Mississippi Commission on Judicial Performance also are lawyers, and, it follows that they too are required to report lawyers' misconduct. Miss. Const. art. 6, § 177A. While a report may have occurred, we are not informed whether the Bar has been notified of the Commission's findings in the present case. In future judicial performance matters, where it is apparent that attorneys have actively participated in the alleged misconduct, the Commission should take steps to "inform the appropriate professional authority," and also should notify this Court whether such report has been made.
¶ 55. In criminal cases, resolved by agreement between the prosecution and the defendant, the trial judge must confirm that there is, indeed, a factual basis for a guilty plea. URCCC 8.04 A(3). Likewise, before meting out sanctions in a judicial performance matter, this Court must be assured that the agreed facts set forth a distinct basis for sanctions warranted by clear violations of Mississippi's Code of Judicial Conduct. Because misconduct is apparent in only two of the six counts, I would remand the case to the Commission for further development.
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