MISS. COM'N ON JUD. PERFORMANCE v. Hartzog

• Decision Date: 22 April 2010
• Docket Number: No. 2009-JP-01022-SCT.,2009-JP-01022-SCT.
• Citation: 32 So.3d 1188
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Johnny C. HARTZOG.

32 So.3d 1188

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Johnny C. HARTZOG.

No. 2009-JP-01022-SCT.

Supreme Court of Mississippi.

April 22, 2010.

COPYRIGHT MATERIAL OMITTED

Darlene D. Ballard, Ayanna Batiste Butler, attorneys for appellant.

Johnny C. Hartzog, Appellee, pro se.

EN BANC.

CHANDLER, Justice, for the Court:

¶ 1. On November 11, 2008, the Mississippi Commission on Judicial Performance (Commission) filed a formal complaint against Johnny C. Hartzog, Justice Court Judge for District Two, Jefferson Davis County, Mississippi, alleging judicial misconduct which was actionable pursuant to Article 6, Section 177A, Mississippi Constitution of 1890, as amended. While the record reveals no formal answer by Judge Hartzog, it does contain two letters signed by Judge Hartzog relating to this matter and an undated copy of an order of recusal.¹ The Committee of the Commission on Judicial Performance had a hearing on the allegations on April 10, 2009. Following the hearing on May 28, 2009, the Committee filed its Findings of Facts, Conclusions of Law and Recommendations. Judge Hartzog objected to these findings. The Commission filed Commission Findings of Fact, Conclusions of Law and Recommendations on June 22, 2009, with this Court. The Commission found that Judge Hartzog's conduct violated Canons 1, 2, 3, and 4 of the Code of Judicial Conduct. Further, the Commission found that Judge Hartzog's conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice bringing the judicial office into disrepute pursuant to Article 6, Section 177A of the Mississippi Constitution of 1890, as amended. The Commission recommended that Judge Hartzog receive a public reprimand; suspension from the office of Justice Court Judge, Jefferson Davis County, Post 2, for a period of six months without pay; and assessment of costs of the proceeding in the amount of $1,411.55. This Court adopts the Commission's recommendation.

FACTS

¶ 2. On April 10, 2009, the Commission conducted a hearing in this judicial-performance matter. Judge Hartzog testified that he was the Justice Court Judge in Jefferson Davis County, District Two, in Prentiss, Mississippi. He was elected in 1981 and was serving his twenty-ninth year as justice court judge. This case involved a tenant-removal action before Judge Hartzog. Carol Oatis filed an affidavit to remove a tenant in Jefferson Davis County. Oatis sought removal of Veronica Moses from Oatis's land located on Fate Ward Road in Carson, Mississippi. The justice court file contained a notice to vacate the property addressed to Moses. In addition, the file contained a summons for Moses to appear in court on April 10, 2008.

¶ 3. According to Judge Hartzog, the following events transpired over a number of court dates. Oatis and Moses appeared in court, and Moses requested a continuance for another party to be present, DiMa Homes. Oatis, Moses, and DiMa Homes had been in litigation concerning construction of the home on the same property at issue in this disciplinary matter. Judge Hartzog granted the continuance. When he granted the continuance, Judge Hartzog stated that he did not ask the parties any questions. The case was continued a number of times. On June 5, 2008, the case was continued to July 10, 2008, because Judge Hartzog was recovering from surgery. On July 10, 2008, the file indicated that the case was continued to August 7, 2008, because DiMa Homes was not present in court. On August 7, 2008, Oatis and Moses appeared before Judge Hartzog.² During this hearing, Judge Hartzog stated that Oatis said "I just want her out of my house." Moses mentioned DiMa Homes, and then Oatis stated "I recuse myself from this case." At this point, Judge Hartzog stated "I recuse myself too from this case. And you can carry it to the next judge."

¶ 4. Judge Hartzog knew Moses's father, Henry Johnson. Johnson died in 2001 or 2002 prior to the 2008 eviction case. Both Judge Hartzog and Johnson had served on the deacon board of the same church. In addition, Judge Hartzog knew both litigants, Moses since her birth and Oatis for a long time prior to the eviction action. Judge Hartzog also had a landscaping business and had cleared the property twice at Johnson's request and had spread gravel on the driveway at Moses's request. This work was done a minimum of eight years prior to Oatis's eviction case.

¶ 5. Oatis stated that he owned property in Jefferson Davis County. Moses had dated Oatis's son and had asked to put a mobile home on Oatis's property. Oatis told Moses that she could place a mobile home on his property. A few months later, Oatis was informed that a house was being built on his property. When Oatis visited his property, he found a house that was eighty percent complete and a DiMa Homes sign on the land. Litigation ensued in a separate case in the Chancery Court of Jefferson County over that matter. The chancery court ultimately determined that Moses had no interest in the property.

¶ 6. Oatis later filed an affidavit with the justice court to remove Moses from the property. According to Oatis, on April 10, 2008, he told Judge Hartzog that he wanted Moses evicted from his property. At this point, Oatis claimed that Judge Hartzog had told Oatis that Johnson, Moses's father, had told Judge Hartzog "this and that." Further, Judge Hartzog asked Oatis how much money he wanted for the property. When Oatis stated "$50,000," Judge Hartzog stated that the price was "too much." Oatis stated that he had told Judge Hartzog "well, you have a conflict of interest in this, judge." The case was continued in order to have DiMa Homes present in court. On July 10, 2008, Oatis stated that he took the "Fifth" because Judge Hartzog kept talking about Oatis selling the property to Moses. When Judge Hartzog told Oatis how he should handle the matter, Oatis told the judge "You have a conflict of interest. You need to dismiss yourself." Oatis stated that Judge Hartzog suggested that Oatis should accept $1,200 for the property. It was not until the August 7, 2008, hearing that Oatis knew that Judge Hartzog was no longer presiding over the matter. Exhibits 5, 6, and 7 were a series of documents that Oatis had filed complaining about Judge Hartzog's conduct. Oatis stated that he thought Judge Hartzog had a conflict of interest because he had cleared the land and because Judge Hartzog had stated, in court, that Johnson had told Judge Hartzog that he was proud of his daughter (Moses) for having her own place.

¶ 7. Charles McGilberry, Oatis's brother-in-law, corroborated Oatis's testimony that at one of the court hearings, Oatis took the "Fifth." In addition, McGilberry stated that Oatis was there for an eviction matter, while the judge spoke about settling a land deal. When asked whether any numbers were discussed, McGilberry stated that "I thought something like $1200 or something like that." McGilberry also stated that he had heard Oatis asking Judge Hartzog not to hear the case, that he never had heard Judge Hartzog recuse himself, and that the case was continued in order to bring the company responsible for building the house to court.

¶ 8. Jefferson County Justice Court Clerk Judy Cole testified that she had seen Oatis at the justice court for a civil, eviction case. She stated that, during the April 10, 2008, hearing, Larry Johnson, Moses's brother, had suggested that Oatis sell the property. Then, Judge Hartzog had asked Oatis how much money he wanted for the property. Cole also stated that Oatis had asked Judge Hartzog to recuse himself when they were discussing Judge Hartzog's landscaping business. According to Cole, Judge Hartzog had stated, "Well, I can keep my contracting business and my judging separate." The case was continued because Moses requested that DiMa Homes be present. At the July 10 court hearing, Cole stated that Oatis had pleaded the "Fifth" because he did not want to talk about the house. She also stated that Oatis again had asked Judge Hartzog to recuse himself. Judge Hartzog recused himself after an investigator with the Commission on Judicial Performance spoke with Cole, which was some time after July 10, 2008.

¶ 9. Moses testified that, after the house was completed in 1999, Judge Hartzog had "smoothed it out all the way `round the house.'" Moses did not recall any discussion about Judge Hartzog recusing himself from the case. However, she stated that Judge Hartzog had asked Oatis what he wanted for the land and whether Oatis would do as he promised. At the next court date, Moses stated that Oatis had pleaded the "Fifth," and there had been no discussion by Judge Hartzog about the sale of the property. Moses was not aware that Judge Hartzog had recused himself from the case until she attended the next scheduled hearing. On cross-examination, Moses was questioned about Oatis's statements concerning the home on his property. Oatis recused himself after Moses told the judge about a statement that Oatis had made concerning the house on his property. Moses also admitted that Judge Hartzog had recused himself after Oatis had recused himself from the case. She stated that Judge Hartzog had smoothed out the area around the house in 1999 or 2000, some eight or nine years prior to the eviction case. She also stated that her brother had asked Oatis in court how much money he wanted for the property.

¶ 10. Luther T. Brantley testified concerning prior disciplinary actions taken by the Commission against Judge Hartzog.

DISCUSSION

¶ 11. The standard of review for this Court in judicial misconduct proceedings is de novo. Miss. Comm'n on Judicial Performance v. Osborne, 16 So.3d 16, 18 (Miss.2009) (Osborne IV); Miss. Comm'n on Judicial Performance v. Vess, 10 So.3d 486, 489 (Miss.2009); Miss. Comm'n on Judicial Performance v. Thompson, 972 So.2d 582, 585 (Miss.2008). This Court gives great deference to the Commission's findings which are based on clear and...