Miss. Com'n On Judical Perform. v. Osborne

• Decision Date: 31 January 2008
• Docket Number: No. 2007-JP-00776-SCT.,2007-JP-00776-SCT.
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Solomon C. OSBORNE.
• Court: Mississippi Supreme Court

977 So.2d 314

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Solomon C. OSBORNE.

No. 2007-JP-00776-SCT.

Supreme Court of Mississippi.

January 31, 2008.

Rehearing Denied April 3, 2008.

Luther T. Brantley, III, Darlene D. Ballard, Ayanna Batiste, attorneys for appellant.

Leonard McClellan, Jackson, attorney for appellee.

EN BANC.

WALLER, Presiding Justice, for the Court.

¶ 1. This appeal is taken from the Mississippi Commission on Judicial Performance's final Findings of Fact, Conclusions of Law, and Recommendations. Miss. Const. art. VI, § 177A; Miss. Comm'n on Judicial Performance Rule 10. The Commission recommends that Solomon C. Osborne of Greenwood, Mississippi, be suspended from the office of County Court Judge of Leflore County, Mississippi, for ninety days, without compensation, and that he be assessed the costs of the proceedings against him ($2,525.08) for his actions in response to the repossession of an automobile jointly owned by his wife and mother-in-law on November 7, 2002. After our independent review, we agree with the Commission that Judge Osborne's conduct in violating various canons of our Code of Judicial Conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, thus causing such conduct to be actionable pursuant to the provisions of the Mississippi Constitution. Miss. Const. art. 6, § 177A. However, we disagree with the recommendation that he be suspended for ninety days. For the reasons discussed below, we find Judge Osborne's actions warrant suspension for one hundred eighty days, without compensation, and that he should be assessed the costs of the proceedings, and we enter judgment accordingly.

FACTS

¶ 2. The Commission included within its recommendation the following findings of fact:

The mother-in-law and the wife of Respondent jointly owned a Mercedes automobile which was financed with General Motors Acceptance Corporation[.] The title of the automobile was vested in the name of the Respondent's mother-in-law and his wife. The address on the title of the automobile was a Greenville, Mississippi address which was the address of Respondent's mother-in-law. Respondent is a resident of Greenwood, Mississippi and has been for several years. The payments on the Mercedes were in arrears of around Three Thousand Dollars ($3,000). General Motors Acceptance Corporation engaged the services of Christopher M. Reed (hereinafter "Reed") to repossess the automobile. The mortgage documents pledging the Mercedes automobile as collateral contained the usual and customary self-help repossession clause, permitting General Motors Acceptance Corporation or its agents permission to repossess the automobile without resort to judicial proceedings.

On November 7, 2002 Reed found the automobile parked near the office of Respondent. Reed hooked his tow truck to the Mercedes and drove away with it. One of Respondent's clients and close friend, Tennie [B]enford, a/k/a "Tony", who was in Respondent's office, notified Respondent of Reed's actions. Respondent and [B]enford jumped in [B]enford's automobile, gave chase to Reed for several blocks down the streets of Greenwood and when Reed stopped for a traffic sign [B]enford blocked Reed's course of travel with [B]enford's automobile, blocking that lane of traffic for the traveling public.

Respondent left [B]enford's automobile and began to beat the hood and cab of Reed's vehicle with his fists, climbing up onto Reed's vehicle he began to kick and beat on the top of Reed's vehicle and repeatedly instructed Reed to cut the Mercedes loose and cease his repossession efforts. Reed did not leave the cab of his vehicle until he had called the police on his cellular phone and they promptly arrived a the scene. When the police officers arrived Respondent told them to instruct Reed to "put his automobile down". Respondent then attempted to unhook the Mercedes from the tow truck. The first officer to the scene was Curtis Lee who advised Respondent that this was a civil matter and the officers could not get involved. Officer Langley also arrived at the scene, inspected the documents held by Reed, told Respondent that the matter was a civil matter and the police could not get involved and instructed Reed to get in his truck and leave with the automobile.

When the officers told Reed to leave with the automobile, Respondent got into the Mercedes and engaged the brakes of the Mercedes effectively aborting Reed's repossession effort all in view of witnesses who had gathered, watching the proceedings.

Officer John Avent was also dispatched to the scene. He arrived at the scene "a couple of minutes after officer Lee". He found the Respondent agitated, upset and speaking in a loud voice attempting to enter the Mercedes. Avent advised Respondent that this was a civil matter, that the officers could not get involved, to which Respondent reminded him he was a judge and lawyer, that he knew the law much better than the officer and needed no advice from him. When officer Avent ordered Respondent to exit the Mercedes automobile, Respondent refused. Officer Lee, Avent's superior officer, who incredibly testified that he did not know Judge Osborne saw officer Avent speaking with Respondent, instructed Avent that he was handling this case. Officer Lee allowed Respondent to remove property from the Mercedes automobile, over the objection of Mr. Reed, even though it was the announced policy of the Greenwood Police Department not to become involved in a repossession matter, it being a civil matter.

Respondent never contacted his wife, and/or mother in law to determine if the payments were delinquent as alleged by Reed yet the delinquent account was later brought current by the payment of the delinquent payments. Respondent contends that he had no duty to determine if the payments were current or not. From the credible evidence Respondent knew and understood that Reed's actions were taken because the monthly payments on the Mercedes were in default even though Respondent testified that had he known the payments were past due "... all of this could've been avoided" (testimony of Respondent P. 291, L. 18-20)[.] Respondent also testified that under the decisions of our Courts he knew Reed could not take the automobile over Respondent's objection without a court order.

The confrontation between Respondent, Reed and the officers lasted from 45 minutes to an hour on the public streets of the City of Greenwood, in full view of the public, traffic was blocked and several people, other than the police, gathered at the scene. The matter was finally brought to a close when Reed, for some unexplained reason, was taken into custody by the Greenwood police, placed in handcuffs, thrown to the ground, injuring his head. Some of the bystanders came to Reed's aid and called Reed's wife, informing her that Reed had been injured. Reed left the scene in an ambulance dispatched by the Greenwood police department. Upon release from the hospital, Reed attempted to file assault charges against Respondent, went by the Greenwood police station, gave the officer on duty a report, but the report disappeared, and no action was taken as a result of this report. Even though Reed was issued two citations on the scene, these have not been pursued by the Greenwood Police Department. The only record of the citations is the copy given to Reed at the scene. An "Incident Report" was made and given to Officer Harris, Shift Captain at the time of the incident and now Chief of Police, however this incident report has disappeared.

The next day, Reed was informed he needed brain surgery to repair an aneurysm the cause of which is not the subject of this inquiry. Reed is now receiving disability benefits as a result of the aneurysm and/or its cause.

As a result of the incident a judgment has been rendered [against] Respondent and in favor of Reed in the United States District Court in a civil action against the City of Greenwood, officer Curtis Lee and Judge Osborne. Depositions of the Defendants, Osborne and Lee were taken in the District Court case. Lee reviewed his deposition prior to his testimony in the matter sub judice but yet, could not remember many of the facts. He had been on the Greenwood Police Force in excess of a year and half when the incident occurred.

Osborne was appointed as County Court Judge in August, 2001 and had been serving on the County Court bench since that time. He had just been elected for his second term about two days prior to the incident.... [F]rom the credible evidence and the circumstances the Commission concludes that all of the officers who came to the scene were aware of who the Respondent was and his position as County Court Judge.

¶ 3. Judge Osborne contested the allegations in the complaint at the hearing and contests on appeal the recommended sentence. The following is a summary of the relevant disputed facts. Judge Osborne testified at the hearing that after he had been notified that the Mercedes was being towed, he ran out of his office and stood in front of the tow truck in protest of the self-help repossession. Judge Osborne further testified that he had "to jump out of the way to keep [the tow truck] from hitting [him]." Reed testified he left the scene without confrontation and traveled seventy-five to one hundred feet before the car's alarm sounded. He further testified that he was close to a quarter of a mile away when Benford and Judge Osborne gave chase. Benford testified that the tow truck was still outside the office when he and Judge Osborne walked outside, and that Judge Osborne tried to talk to Reed before he left. Benford did not state whether Judge Osborne stood in front of the tow truck in protest of the repossession.

¶ 4. The distance of the chase and the streets covered in the chase also were contested. Benford testified the chase was for two blocks, but...