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

• Decision Date: 18 June 2009
• Docket Number: No. 2008-JP-00454-SCT.,2008-JP-00454-SCT.
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Solomon C. OSBORNE.

11 So.3d 107

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

No. 2008-JP-00454-SCT.

Supreme Court of Mississippi.

June 18, 2009.

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

Leonard McClellan, Jackson, attorney for appellee.

EN BANC.

ON MOTIONS FOR REHEARING

CARLSON, Presiding Justice, for the Court.

¶ 1. The motion for rehearing filed by Solomon C. Osborne is denied. However, the motion for rehearing filed by the Mississippi Commission on Judicial Performance is granted, in part. Thus, the original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. In this judicial-discipline case, the Mississippi Commission on Judicial Performance ("the Commission") recommends to this Court that, based on his judicial misconduct, Solomon Osborne, former County Court Judge for Leflore County, should be removed from office, restrained from ever seeking judicial office again, and assessed with costs of this proceeding.

FACTS AND PROCEEDINGS BEFORE THE COMMISSION

¶ 3. On September 13, 2006, while campaigning for reelection as a county court judge for Leflore County, Judge Solomon C. Osborne spoke before the Greenwood Voters League, a predominantly African-American political organization. Portions of his speech appeared the next day in the local newspaper, The Greenwood Commonwealth. In an article entitled: "Osborne: Blacks not where we should be. County judge says progress has been made, more is needed," the newspaper quoted Judge Osborne as stating:

White folks don't praise you unless you're a damn fool. Unless they think they can use you. If you have your own mind and know what you're doing, they don't want you around.¹

¶ 4. Forty-eight complaints were filed with the Commission regarding Judge Osborne's comments. On February 12, 2007, the Commission filed a formal complaint against Judge Osborne, alleging 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 Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 5. Judge Osborne, acting as his own attorney,² answered the complaint and denied making the statements attributed to him by The Greenwood Commonwealth. He moved the Commission to dismiss the complaint on the basis that its charge violated the First and Fourteenth Amendments of the United States Constitution and comparable provisions of the Mississippi Constitution, averring further that the Commission's complaint was politically and racially motivated.

¶ 6. The Commission referred the matter to a duly-constituted committee, which held a formal hearing. Both parties agreed to dispense with an evidentiary hearing on the facts, allowing instead an agreed statement of the facts to be entered into evidence for a review, finding, and proposed recommendation. The committee concluded the following:

[T]his Tribunal is convinced by clear and convincing evidence that Judge Solomon C. Osborne, has violated the following Canons, Statute, and Section 177A of the Mississippi Constitution of 1890, as amended, to-wit:

Canon 1. By making a public inflammatory, derogatory statement about all people of the White race, thereby eroding public confidence in the integrity and independence of his Court.

Canon 2.(A) & (B) By making a public spectacle of himself and thereby demeaning the prestige of his office.

Canon 3.(B)(5) By publicly announcing manifest bias and prejudice based on race.

Canon 5.(A)(1)(a) By maintaining membership in, attending meetings, and promoting the agenda of a political organization.

Statute: Section 97-9-59 Mississippi Code, 1972, Ann. (Perjury) By making an oath to an untrue, false and improper statement when Solomon C. Osborne knew his statement was untrue and false.

Section 177A of the Mississippi Constitution of 1890. By conducting himself in a way which constitutes wilful misconduct in office and conduct which is prejudicial to the administration of justice, bringing his judicial office into disrepute.

¶ 7. The committee filed its findings of fact, conclusions of law, and recommendation with the Commission on February 15, 2008. The Commission accepted and adopted the Committee's recommendation and thereafter entered its findings of facts, conclusions of law, and recommendation on March 18, 2008. The Commission found that Judge Osborne's behavior violated Canons 1, 2(A), 2(B), 3(B)(5), and 5(A)(1)(a) of the Mississippi Code of Judicial Conduct, and Section 97-9-59 of the Mississippi Code of 1972, Annotated. The Commission has recommended to this Court that Judge Osborne be removed from office, restrained from ever seeking judicial office again, and assessed with costs of this proceeding in the amount of $731.89.

DISCUSSION

¶ 8. Judicial misconduct proceedings are reviewed de novo, giving considerable deference to the findings, based on clear and convincing evidence, of the recommendations of the Commission. Miss. Comm'n on Judicial Performance v. Boland, 975 So.2d 882, 888 (Miss.2008) (Boland I) (citing Miss. Comm'n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000)). This Court, however, is obligated to conduct an independent inquiry. Id. (citing Miss. Comm'n on Judicial Performance v. Neal, 774 So.2d 414, 416 (Miss.2000)). Though the Commission's findings are considered, this Court is not bound by its findings. Miss. Comm'n on Judicial Performance v. Whitten, 687 So.2d 744, 746 (Miss.1997).

I.

¶ 9. The role of the judiciary is central to the concept of justice and the rule of law. The Mississippi Code of Judicial Conduct, through its canons, was established to help ensure the public's trust and confidence in the state's judicial system, and to provide guidance to judges in maintaining the principal standards of judicial conduct both on and off the bench. This Court is vested with the authority to discipline any judicial officer for violation of a judicial canon. Miss. Const. art. 6, § 177A. Enforcement of the canons is essential to the purpose they serve.

¶ 10. Judge Osborne claims First Amendment protection for his speech and for his attendance before the Greenwood Voter's League. He challenges the constitutionality of the Commission's recommendation that he be punished.

¶ 11. The Commission responds, arguing that the racial overtones of Judge Osborne's comments cast doubt on his integrity, independence, and ability to be fair and impartial in all matters that come before his court. The Commission asserts that application of the judicial canons in this case is narrowly tailored to serve a compelling state interest, thus Judge Osborne's conduct does not enjoy First Amendment protection.

A. Political organization

¶ 12. Beginning with the Commission's finding that Judge Osborne violated Canon 5(A)(1)(a) by maintaining membership in, attending meetings of, and promoting the agenda of a political organization, we need not address Judge Osborne's constitutional argument.³ Based on the record before us, Judge Osborne's attendance before the Greenwood Voters League did not violate section 5(A)(1)(a), or any other section of the canons.⁴ Canon 5(A)(1) reads in full, as follows:

Except as authorized in Sections 5B(2), 5C(1) and 5C(2), a judge or candidate for election to judicial office shall not:

(a) act as a leader or hold an office in a political organization;

(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other political functions.

(Emphasis added.)

¶ 13. The Commission's finding rests solely on what transpired during rebuttal at the formal hearing for this matter. A committee member queried counsel for Judge Osborne about the Greenwood Voters League. The attorney explained he thought it could be fairly characterized as a non-dues, political organization that meets weekly. When the committee member asked how one becomes a member, the attorney responded, "Just by attending a meeting." The committee member then asked if Judge Osborne therefore was a member. The attorney said, "Yes." No further questions were asked about the Voters League.

¶ 14. The Commission has misinterpreted and misapplied Canon 5. The canon does not prohibit membership "per se" in a political organization.⁵ Rather, as denoted by section 5A(1) and its subsections, the canon prohibits judicial incumbents and judicial candidates alike from engaging in certain inappropriate political activity normally associated with such organizations. See also sections 5B(2), 5C(1), 5C(2) and 5D.

¶ 15. There is no evidence in the record that Judge Osborne acted as a leader for, or held an office in, the Greenwood Voters League, in violation of section 5A(1)(a). Likewise, there is no indication that Judge Osborne was making a speech on behalf of the Voters League, as prohibited by section 5A(1)(b). Additionally, although Judge Osborne admittedly attended political gathering, ordinarily a violation under 5A(1)(c), the record evinces only that he was there as a judicial candidate running for reelection. Section 5C(1) expressly permits incumbent judges to attend and speak to political gatherings on their own behalf while candidates for election or reelection.

B. Political speech

¶ 16. The subject of Judge Osborne's inflammatory statements was his criticism of a Caucasian mayor's appointment of two local African-Americans to the Greenwood Election Commission. While these statements admittedly were made by Judge Osborne during a year when he was campaigning for reelection as the incumbent county court judge, we do not find that these invidious statements constitute protected political speech under the First Amendment of the...