Anderson, In re

• Decision Date: 07 April 1982
• Docket Number: No. 53190,53190
• Citation: 412 So.2d 743
• Parties: In re Removal of Lloyd W. ANDERSON, Justice Court Judge.
• Court: Mississippi Supreme Court

Page 743

412 So.2d 743

In re Removal of Lloyd W. ANDERSON, Justice Court Judge.

No. 53190.

Supreme Court of Mississippi.

April 7, 1982.

Wells, Wells Marble & Hurst, Erskine W. Wells, Charles P. Quarterman, Jackson, for Mississippi Commission on Judicial Performance.

Gex, Gex & Phillips, Walter J. Gex, III, Joseph H. Benvenutti, Bay St. Louis, for Lloyd W. Anderson.

En Banc.

WALKER, Justice, for the Court:

This case is before us upon the recommendation of the Mississippi Commission on Judicial Performance that Lloyd W. Anderson, a Justice Court Judge of District Three, Hancock County, be removed from office.

We concur with the finding of the Commission that the conduct of Anderson constituted willful misconduct in office. We also accept the recommendation of the Commission that Anderson be removed from office and direct his removal.

By concurrent resolution passed in 1979, the Legislature submitted to the people a proposed amendment to Article 6 of the Mississippi Constitution of 1890 by adding Section 177A, which was ratified by the electorate November 6, 1979, and thereafter became a part of our State Constitution.

Section 177A directs the formation of a Commission on Judicial Performance of this State, which is composed of seven members: three judges of courts of record, which are trial courts of original jurisdiction; one judge of a justice court; two resident lay persons who have never held judicial office or been members of the Mississippi Bar; and one practicing attorney.

After directing the formation of the Commission and the composition of its membership, Section 177A reads, in part, as follows:

On recommendation of the commission on judicial performance, the supreme court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.

....

All proceedings before the commission shall be confidential, except upon unanimous vote of the commission. After a recommendation of removal or public reprimand of any justice or judge is filed with the clerk of the supreme court, the charges and recommendations of the commission shall be made public. The commission may, with two-thirds ( 2/3) of the members concurring, recommend to the supreme court the temporary suspension of any justice or judge against whom formal charges are pending. All proceedings before the supreme court under the section and any final decisions made by the supreme court shall be made public as in other cases at law.

The provisions of Section 177A have been implemented by legislative enactments providing for a commission on judicial performance, the terms of office of its members, authority as to procedures before it, and its administration. Miss.Laws, ch. 511 (1979); Miss.Laws, ch. 385 (1980) (codified at Mississippi Code Annotated § 9-19-1 et seq. (Supp.1981)).

Mississippi Code Annotated section 9-19-17 provides:

A justice or judge removed by the supreme court or the seven-member tribunal is ineligible for judicial office....

A Mississippi Commission on Judicial Performance was duly appointed and constituted. Pursuant to authority granted under Mississippi Code Annotated section 9-19-23 (Supp.1981), the Commission adopted rules implementing the legislative enactment, including rules of practice and procedure before it, which were approved by order of this Court on July 9, 1980. The complete rules of the Commission are recorded in 385 So.2d at XXII-XXXV.

Rule 8D provides:

Facts requiring action of the Commission shall be established by clear and convincing evidence....

Rule 8F provides:

The Commission recommendations to the Supreme Court for discipine (sic) may include removal from office, suspension, fine, public censure or reprimand, or retirement. In addition, the Commission may privately admonish a judge as provided by law....

Rule 10 provides for the prompt filing of the record, the findings and recommendations of the Commission with this Court, the briefs of the parties, and our review.

Rule 10E contains the scope of our review:

Based upon a review of the entire record, the Supreme Court shall prepare and publish a written opinion and judgment directing such disciplinary action, if any, as it finds just and proper. The Supreme Court may accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission. In the event that more than one (1) recommendation for discipline of the judge is filed, the Supreme Court may render a single decision or impose a single sanction with respect to all recommendations.

There are two types of official conduct condemned by Section 177A:

(b) willful misconduct in office; and

(e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

Courts in other jurisdictions with constitutional provisions as our own Section 177A have attempted to construe these provisions.

The North Carolina Supreme Court had occasion to state in the case of In re Peoples, 296 N.C. 109, 250 S.E.2d 890, 918 (1978):

We have heretofore attempted to define wilful misconduct and conduct prejudicial to the administration of justice in general terms.... Like fraud, however, these terms are "so multiform" as to admit of no precise rules or definition....

The North Carolina Supreme Court in the case of In re Nowell, 293 N.C. 235, 237 S.E.2d 246, 255 (1977), reiterated the definitions of the California Supreme Court:

Willful misconduct in office is the improper or wrongful use of the power of his office by a judge acting intentionally, or with gross unconcern for his conduct, and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith....

Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. (Emphasis theirs).

Based upon its facts and findings, the Commission unanimously found upon clear and convincing evidence that Anderson's conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute as set forth in Section 177A.

By a vote of five to two the Commission recommends this Court remove Anderson from the office of Justice Court Judge, District 3, Hancock County, Mississippi as provided by Section 177A of the Mississippi Constitution. One dissent as to the recommendation of penalty to be imposed recommends that Anderson be suspended from his present office for a period of ten years. The other dissent would have found the charges against Anderson as to Torrence and Ligon were not sustained by clear and convincing evidence, and recommends that Anderson be suspended from office for a period of six and one-half years.

Rule 3H to the Commission provides a two-thirds vote of the Commission shall be required for any action pertaining to its disciplinary authority.

Section 177A does not give the Commission power to actually impose any sanction against a judicial officer, but simply to recommend.

Also Rule 10E of the Commission above quoted empowers this Court to accept, reject or modify, in whole or in part, the findings and recommendations of the Commission.

Therefore, it appears we are required to be a factfinding body, at least to some degree, in every case of this nature. California's constitutional provision is almost identical to our Section 177A. We believe the standard announced by the Supreme Court of California in Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1, 4 (1973), is the standard we should adopt in this State for review by the tribunal:

(S)ince the ultimate, dispositive decision to censure or remove a judge has been entrusted to this court, we conclude that in exercising that authority and in meeting our responsibility we must make our own, independent evaluation of the record evidence adduced below. After conducting such a review we may then decide as a question of law whether certain conduct, which we may have found as a fact to have occurred, was "wilful misconduct in office" or "conduct prejudicial to the administration of justice that brings the judicial office into disrepute...." Finally, it is to be our findings of fact and conclusions of law, upon which we are to make our determination of the ultimate action to be taken, to wit, whether we should dismiss the proceedings or order the judge concerned censured or removed from office.

See also In re Haddad, 128 Ariz. 490, 627 P.2d 221 (1981); West Virginia Judicial Inquiry Commission v. Dostert, 271 S.E.2d 427 (W.Va.1980); In re Jordan, 290 Or. 303, 622 P.2d 297 (1981); In re Cieminski, 270 N.W.2d 321 (N.D.1978); In re Nowell, supra; In re Brown, 512 S.W.2d 317, 320 (Tex...