Miss. Com'n On Jud. Perf. v. Carr

• Decision Date: 18 September 2008
• Docket Number: No. 2008-JP-00908-SCT.,2008-JP-00908-SCT.
• Citation: 990 So.2d 763
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Pat CARR.
• Court: Mississippi Supreme Court

990 So.2d 763

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Pat CARR.

No. 2008-JP-00908-SCT.

Supreme Court of Mississippi.

September 18, 2008.

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

Jason D. Herring, Tupelo, attorney for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. The Mississippi Commission on Judicial Performance filed a formal complaint charging Lee County First District Justice Court Judge Pat Carr, who also serves as municipal court judge for the cities of Guntown and Saltillo, with willful misconduct in office and conduct prejudicial to the administration of justice which brings the office into disrepute, thus causing such conduct to be actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution of 1890, as amended. The Commission and Judge Carr filed a Joint Motion for Recommendation, and the Commission recommends that Judge Carr be publicly reprimanded, suspended from the office of justice court judge, District One, Lee County, and municipal court judge for the cities of Gunman and Saltillo, for a period of sixty days without pay, fined $2,000, and assessed costs in the sum of $100. The Commission's recommendation is now before this Court pursuant to Mississippi Commission on Judicial Performance Rule 10.

FACTS AND PROCEEDINGS BEFORE THE COMMISSION

¶ 2. On December 5, 2007, the Commission filed a Formal Complaint against Judge Carr charging him with willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of the Code of Judicial Conduct, thus causing such conduct to be actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution of 1890. Specifically, the Commission's Formal Complaint against Judge Carr charged him with violating Canons 1, 2A, 2B, 3B(2), 3B(4), and 3B(7) of the Mississippi Code of Judicial Conduct. On January 7, 2008, Judge Carr filed his Answer to the Formal Complaint.

¶ 3. On April 3, 2008, counsel for the Commission and Judge Carr filed an Agreed Statement of Facts and Proposed Recommendation which was submitted in lieu of a commission hearing as provided for in Mississippi Commission on Judicial Performance Rule 8. On May 9, 2008, the Agreed Statement of Facts and Proposed Recommendation was accepted by the full Commission by a vote of 7-0. The following facts were agreed to by the Commission and Judge Carr:

The complainants [Sharee Venda Sanders and Rebecca Bounds Lyons] have family members buried in a private cemetery near Saltillo, Lee County, MS. Part of the family plot is enclosed with an iron fence, pieces of which have been stolen over the years. Ms. Sanders, one of the complainants above, removed the remaining two sections of the fence on or about May 4, 2007 for safekeeping. Thereafter, on May 21, 2007 [Judge Carr], along with two Lee County deputy sheriffs, went to the Sanders home and the deputies inquired of Ms. Sanders about the removed fence portions. Though no criminal or civil charges were pending against Ms. Sanders, [Judge Carr] called the next day and ordered Ms. Sanders to return the fence pieces to the cemetery no later than June 1, 2007 or face prosecution.

Ms. Sanders called [Judge Carr] on or about May 23, 2007 to ask for additional time to return the fence and [Judge Carr] told her she would be prosecuted if she failed to return the fence by June 1, 2007.

On May 29, 2007, Ms. Sanders spoke with [Judge Carr] and asked for additional time to return the fence due to a family medical emergency. Seven (7) additional days were granted. However, on June 6, 2007, [Judge Carr] called Ms. Sanders and informed her that a warrant had been issued for her arrest, though no warrant was ever found. On June 7, 2007, Ms. Sanders returned the fence portions to the cemetery, though no charges were ever pending against her regarding the incident.

By engaging in the above stated conduct, [Judge Carr] violated Canons 1, 2A, 2B, 3B(2), and 3B(7) of the Code of Judicial Conduct of Mississippi.

. . . .

[S]aid conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

¶ 4. Based on these agreed facts, counsel for the Commission and Judge Carr proposed that Judge Carr be publicly reprimanded, suspended from the offices of justice court judge, District One, Lee County, and municipal court judge for the cities of Guntown and Saltillo for a period of sixty days without pay, and assessed a fine of $2,000 plus costs of $100.

¶ 5. After the full Commission unanimously adopted the Agreed Statement of Facts and Proposed Recommendation, the Commission, on May 27, 2008, filed with this Court its Findings of Fact and Recommendation. On June 23, 2008, the Commission and Judge Carr filed a Joint Motion for Approval of Recommendations Filed by the Mississippi Commission on Judicial Performance and Memorandum Brief in Support of Joint Motion for Approval of Recommendations Filed by the Mississippi Commission on Judicial Performance.

DISCUSSION

¶ 6. This Court reviews the recommendations of the Mississippi Commission on Judicial Performance de novo. Miss. Comm'n on Judicial Performance v. Sutton, 985 So.2d 322, 326 (Miss.2008) quoting Miss. Comm'n on Judicial Performance v. Osborne, 977 So.2d 314, 320 (Miss.2008) (citing Miss. Comm'n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993)). "While it is true that this Court is the trier of fact in judicial misconduct proceedings and may impose additional sanctions, it nonetheless gives great weight to the findings of the Commission which has had the opportunity to observe the demeanor of the witness." Id. (quoting In re Garner, 466 So.2d 884, 885 (Miss.1985)). However, because we "have the sole power to impose sanctions in judicial misconduct cases," we are obligated to render an independent judgment on the charges. Miss. Comm'n on Judicial Performance v. Gordon, 955 So.2d 300, 303 (Miss.2007) quoting Miss. Comm'n on Judicial Performance v. Gibson, 883 So.2d 1155, 1157 (Miss.2004) (citing Miss. Comm'n on Judicial Performance v. Peyton, 645 So.2d 954, 956 (Miss.1994)).

I. WHETHER JUDGE CARR'S CONDUCT CONSTITUTES WILLFUL MISCONDUCT IN OFFICE AND CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE.

¶ 7. The Commission found by clear and convincing evidence that Judge Carr had violated Canons 1, 2A, 2B, 3B(2), and 3B(7) of the Code of Judicial Conduct of Mississippi.¹

¶ 8. The Commission further found by clear and convincing evidence that Judge Carr's conduct constituted "willful misconduct in office" and "conduct prejudicial to the administration of justice which brings the judicial office into disrepute[.]" Miss. Const., art. 6 § 177A(b), (e).

¶ 9. This Court has explained that:

Willful misconduct in office is the improper or wrongful use of 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.

In Re Quick, 553 So.2d 522, 524-25 (Miss. 1989) citing In Re Anderson, 412 So.2d 743, 745 (Miss.1982) (quoting In Re Nowell, 293 N.C. 235, 237 S.E.2d 246, 255 (1977)) (emphasis in original); see also In re Garner, 466 So.2d 884, 885 (Miss.1985); In Re Stewart, 490 So.2d 882, 884 (Miss. 1986); In Re Collins, 524 So.2d 553 (Miss. 1987).

¶ 10. Judge Carr engaged in ex parte communications with members of the community regarding Sanders's removal of fence pieces from a private cemetery. Based on these ex parte communications, Judge Carr, along with two Lee County sheriff's deputies, went to Sanders's home and engaged in threatening conversations with Sanders about the missing fence pieces. Although there were no criminal or civil charges against Sanders, Judge Carr used the power and influence of his office as a judge and ordered Sanders to return the fence pieces to the cemetery. We agree with the Commission that Judge Carr's conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

¶ 11. Furthermore, Judge Carr admits his conduct violated canons of the Mississippi Code of Judicial Conduct, particularly: Canon 1 (charging judges to uphold the integrity and independence of the judiciary); Canons 2A and 2B (charging judges to avoid impropriety and the appearance of impropriety, in all activities, including respecting and complying with the law and not allowing personal relationships to influence their conduct or judgment); and Canons 3B(2) and 3B(7) (charging judges to impartially and diligently perform their judicial duties by, inter alia, being faithful to the law and avoiding being swayed by partisan interests as well as avoiding ex parte communications).

¶ 12. Judge Carr has agreed to the Commission's recommendation and has joined the Commission's motion for approval of its recommendations; therefore, Judge Carr acknowledges that he violated several canons of the ...