Miss. Comm'n On Judicial Performance v. Patton

• Decision Date: 31 March 2011
• Docket Number: No. 2010–JP–01387–SCT.,2010–JP–01387–SCT.
• Citation: 57 So.3d 626
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCEv.Houston J. PATTON.
• Court: Mississippi Supreme Court

57 So.3d 626

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

v.Houston J. PATTON.

No. 2010–JP–01387–SCT.

Supreme Court of Mississippi.

March 31, 2011.

Darlene D. Ballard, attorney for appellant.Sorie S. Tarawally, Jackson, attorney for appellee.EN BANC.LAMAR, Justice, for the Court:

¶ 1. The Mississippi Commission on Judicial Performance recommended that Houston J. Patton, County Court Judge for Hinds County, be publicly reprimanded and ordered to pay a fine of $1,000 and costs of $100 for engaging in ex parte communications, misusing his contempt power, failing to properly notice hearings, granting relief not requested, and issuing a search warrant without legal authority, all actions which the Commission found to constitute willful misconduct in office. Judge Patton joined the Commission's recommendations and has admitted to all charges of misconduct. After reviewing the record, we find the recommended sanctions to be insufficient, and we decline to adopt the Commission's recommendations. We impose a sanction of suspension without pay for thirty days, a public reprimand, a fine of $1,000, and costs of $100.

STATEMENT OF FACTS AND PROCEEDINGS

¶ 2. On February 19, 2009, the Commission filed a formal complaint, in which it alleged that Judge Patton had engaged in improper conduct in two cases involving the same defendant. In the first case,¹ the Commission averred that Judge Patton had engaged in ex parte communications with the plaintiffs and counsel for the defendant; had presided over numerous hearings and entered orders without proper notice to the defendant; had wrongfully held the defendant in contempt, which resulted in his incarceration; and had wrongfully issued a search warrant for the defendant's premises in violation of his due-process rights. And in the second case,² the Commission averred that Judge Patton had engaged in ex parte communications with the plaintiff and counsel for the defendant; had granted relief not prayed for by the plaintiffs; and had wrongfully held the defendant in contempt, resulting in his incarceration. The Commission found that Judge Patton's conduct in both cases had violated Canons 1, 2A, 2B, 3B(2), 3B(7), 3B(8), and 3B(9) of the Code of Judicial Conduct. The Commission further found that Judge Patton's actions constituted “... (b) willful misconduct in office; [and] (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute [.]” ³

¶ 3. On May 19, 2010, the Commission filed a second formal complaint against Judge Patton. The Commission averred that Judge Patton again unlawfully had held a party in contempt, resulting in incarceration.⁴ The Commission found that Judge Patton's conduct had violated Canons 1, 2A, 2B, 3B(2), 3B(7), 3B(8), and 3C(1) of the Code of Judicial Conduct and Article 3, Section 30 of the Mississippi Constitution,⁵ which prohibits imprisonment for debt. The Commission found the conduct was sanctionable under Section 177A of the Mississippi Constitution, as it was “... (b) willful misconduct in office; [and] (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” ⁶ The Commission, through its attorney, and Judge Patton entered into an Agreed Statement of Facts and Proposed Recommendation in lieu of a hearing. This agreed statement essentially reiterated the facts set forth in the formal complaints. Judge Patton and the Commission agreed that he had violated Article 3, Section 30 of the Mississippi Constitution and Canons 1, 2A, 2B, 3B(2), 3B(7), 3B(8), 3B(9), 3C(1), and that his conduct was willful and prejudicial to the administration of justice under Section 177A of the Mississippi Constitution. They agreed that the appropriate sanctions should be a public reprimand, a $1,000 fine, and $100 in costs. The full Commission accepted and adopted the Agreed Statement of Facts and Proposed Recommendation with one change; it was silent as to a violation of Article 3, Section 30, of the Mississippi Constitution.

DISCUSSION

¶ 4. This Court conducts a “ ‘de novo review of judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Mississippi Commission on Judicial Performance.’ ” ⁷ We may “accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission.” ⁸ This Court must render an independent judgment, as we are vested with the “sole power to impose sanctions in judicial misconduct cases.” ⁹

¶ 5. The Commission found by clear and convincing evidence that Judge Patton's conduct was willful and prejudicial to the administration of justice under Section 177A of the Mississippi Constitution, and that it violated Canons 1, 2A, 2B, 3B(2), 3B(7), 3B(8), 3B(9),¹⁰ and 3C(1). To be willful under Section 177A, the misconduct must be “done willfully or with gross unconcern and generally in bad faith[.]” ¹¹ And “conduct prejudicial to the administration of justice that brings the judicial office into disrepute” includes all willful conduct.¹² This Court has held that a judge's participation in ex parte communication ¹³ and misuse of contempt power ¹⁴ constitute willful misconduct and conduct prejudicial to the administration of justice. Further, Judge Patton agrees that his conduct falls within Section 177A(b) and (e), violates the above-noted code sections, and is sanctionable. We also find that Judge Patton's action of imprisoning a litigant for failure to pay a civil judgment is a violation of Article 3, Section 30 of the Mississippi Constitution.¹⁵ Therefore, we find that Judge Patton should be sanctioned.

¶ 6. Under Section 177A, this Court may “remove from office, suspend, fine or publicly censure or reprimand” a judge for misconduct. ¹⁶ This Court considers six factors to determine an appropriate sanction:

(1) The length and character of the judge's public service; (2) Whether there is any prior case law [ sic ] on point; (3) The magnitude of the offense and the harm suffered; (4) Whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) Whether moral turpitude was involved; and (6) The presence or absence of mitigating or aggravating circumstances. ¹⁷

And we have ruled that the “guiding factor in assigning an appropriate sanction is that if it fits the offense, and this is best measured by comparison with sanctions handed down in prior cases for the listed offense.” ¹⁸1. The length and character of the judge's public service

¶ 7. Judge Patton has been a judge for more than twenty years, and has no prior disciplinary record. The record contains no information about the character of Judge Patton's public service.

2. Whether there is any prior caselaw on point.

¶ 8. This Court has considered numerous judicial-misconduct cases involving abuse of contempt power and ex parte communications.

FN1. John Woodward and Vivian Wajda v. Billy Ralph Sullivan, No. 07–1884.

FN2. Joseph Gregory and Debra Gregory v. Billy R. Sullivan, Individually and Billy R. Sullivan d/b/a A & S Environmental, No. 251–07–000328–COV.

19 Recently, this Court decided Mississippi Judicial Performance v. Vess, in which this Court sanctioned a justice court judge with a public reprimand, a fine of $2,000, and costs of $100, for engaging in ex parte communications with both parties in a pending suit and for failing to provide notice to one of the parties.²⁰ In that case, the judge admitted his recent misconduct and agreed to the imposed sanction, but he also had been disciplined on two other occasions.²¹

¶ 9. And in Mississippi Commission on Judicial Performance v. Byers, this Court sanctioned a circuit judge with a public reprimand, fine of $1,500, and costs of $2,023.59 for various improprieties, including the “serious charge” of misusing the contempt power.²² In that case, a reporter disobeyed a court order by publishing an article about a juvenile proceeding. ²³ The circuit judge had the reporter arrested and incarcerated without filing an affidavit or an order to show cause, without noticing the hearing, and without an appeal bond.²⁴ In addition to misusing the contempt power, the Court found that the judge had improperly sentenced a defendant under the wrong statute and had improperly extended a defendant's probation.²⁵ The Court reviewed the misconduct at issue and a previous private reprimand for abuse of judicial powers before imposing sanctions. ²⁶ But the Court noted it “seriously considered the sanction of removal.” ²⁷

¶ 10. The Court also considered a judge's misuse of contempt in Mississippi Commission on Judicial Performance v. Gunter, in which a municipal judge had a seventeen-year-old arrested for contempt and immediately brought before him for failing to appear for community service.²⁸ The judge also improperly ordered that the teenager's mother be arrested for contempt of court and held for several hours without bond.²⁹ In addition to finding the judge had misused his power of contempt, this Court also found that the judge had abused his official capacity as a judge by using the National Crime Information Center and contacting clerks and police officers regarding a case in which he was counsel.³⁰ The Court noted that this was the judge's first infraction when it imposed a sanction of a public reprimand, a $1,500 fine, and $100 in costs.³¹

¶ 11. But this Court has imposed harsher sanctions in cases involving similar misconduct. In Mississippi Commission on Judicial Performance v. Gordon, the Mississippi Commission on Judicial Performance recommended a public reprimand and assessment of costs for a municipal court judge who engaged in ex parte communications with defendants and subsequently fixed fourteen traffic tickets.³² This Court enhanced the punishment to a thirty-day suspension without pay, a public reprimand, and court costs, even though the judge had no formal disciplinary record.³³

¶ 12. Likewise, in Mississippi...