Miss. Comm'n On Judicial Performance v. Vess

• Decision Date: 20 April 2017
• Docket Number: NO. 2016-JP-01098-SCT.,2016-JP-01098-SCT.
• Citation: 227 So.3d 952
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Charles L. VESS

227 So.3d 952

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

v.Charles L. VESS

NO. 2016-JP-01098-SCT.

Supreme Court of Mississippi.

April 20, 2017

ATTORNEYS FOR APPELLANT: DARLENE D. BALLARD, RACHEL WILSON MICHEL, MEAGAN COURTNEY BRITTAIN

ATTORNEY FOR APPELLEE: SCOTT FLETCHER SLOVER

EN BANC.

RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1.The Mississippi Commission on Judicial Performance(Commission) filed a Formal Complaint charging Charles L. Vess, Justice Court Judge, South District, Adams County, Mississippi (Judge), with willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of Section 177A of the Mississippi Constitution.The Commission and Judge entered into a Stipulation of Agreed Facts and Proposed Recommendation, which was accepted unanimously by the Commission, providing that Judge had violated Canons 1, 2(A), 3(B)(2), 3(B)(4), and 3(B)(5) of the Code of Judicial ConductandSection 177A of the Mississippi Constitution, and recommending that he be publicly reprimanded, suspended from office without pay for a period of thirty days, fined $1,100, and assessed costs of $200.

¶ 2.After conducting our mandated review of the Commission's recommendation consistent with Section 177A of Article 6 of the Mississippi Constitution,Rule 10 of the Rules of the Commission on Judicial Performance, Rule 10 of the Mississippi Rules of Appellate Procedure, and our caselaw, we adopt the recommendation of the Commission and order that Judge be publicly reprimanded, suspended from office without pay for a period of thirty days, fined in the amount of $1,100, and assessed the costs of this proceeding in the amount of $200.

FACTS

¶ 3.In the present case, Judge agreed to the following findings of fact:

[Judge] admitted that while serving as Justice Court Judge, Southern District for Adams County, Mississippi, he presided over the case of State v. Michael Thomas , cause number 271–537–2.During the course of the hearing on State v. Michael Thomas , Defendant Thomas repeatedly placed his hands in his pockets.Thomas's mother and court staff advised Thomas to remove his hands from his pockets, but he continued his habit of placing his hands in his pockets.

[Judge] admitted that while presiding over State v. Michael Thomas , he made a statement that indicated that Thomas's habit of placing his hands in his pockets was threatening to [Judge] and that [Judge] may have to use his gun on Thomas.

[Judge] further admitted to asking Thomas if he used drugs after remanding the pending case to the file, and upon an affirmative answer from Thomas, [Judge] admitted that he made disparaging remarks about Thomas's drug use to Thomas's mother.[Judge] further admitted that he made additional disparaging remarks about Thomas's mother's parenting skills and asked other demeaning questions and made other demeaning comments and accusations.

¶ 4.Judge previously has been before the Commission, resulting in four informal actions and three formal actions.The informal actions included "a procedural irregularity and bias in a criminal case, setting aside a Judgment without prior notice in a DUI case, sitting as a municipal judge without holding a license to practice law, and inappropriate courtroom demeanor."Judge also has been the subject of three disciplinary proceedings: Mississippi Commission on Judicial Performance v. Vess , 637 So.2d 882(Miss.1994)( Vess I );Mississippi Commission on Judicial Performance v. Vess , 692 So.2d 80(Miss.1997)( Vess II );andMississippi Commission on Judicial Performance v. Vess , 10 So.3d 486(Miss.2009)( Vess III ).In Vess I , this Court affirmed the recommendation of a public reprimand and a $100 fine for accepting restitution payments from a litigant on behalf of a victim.Vess I , 637 So.2d at 882.In Vess II , this Court affirmed the recommendation of a public reprimand and costs in the amount of $1,173.45 for ex parte communications with the defendant, defendant's mother, arresting officer, and prosecuting attorney, and for interfering with the defendant's bonding process.Vess II , 692 So.2d at 85.In Vess III , this Court affirmed the recommendation of a public reprimand, costs, and a fine for ex parte communications with both the complaining party and her family and the defendant and her family and holding the same defendant in contempt on a ten-year-old incomplete order, inter alia .Vess III , 10 So.3d at 488–90.

¶ 5.On May 16, 2016, the Commission filed a "Formal Complaint" charging Judge with violation of Canons 1,¹ 2A,² 3(B)(4),³ and 3(B)(5)⁴ of the Code of Judicial Conduct and engaging in willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of Section 177A of the Mississippi Constitution.Judge did not file an answer to the Formal Complaint.

¶ 6.Subsequently, the Commission and Judge filed an Agreed Statement of Facts and Proposed Recommendation.Judge stipulated that he had violated Canons 1, 2(A), 3(B)(4), and 3(B)(5) and Section 177A of the Mississippi Constitution based on the above, agreed-upon facts.The jointly proposed recommendation was that he be publicly reprimanded, suspended from office without pay for a period of thirty days, fined in the amount of $1,100 (an amount constituting two weeks' pay), and assessed costs of $200.In paragraph 12, Judge also:

agrees to publicly apologize to Ms. Jackson–Moore for his conduct towards her and agrees he will retire and shall not seek re-election to any judicial office in the future.[Judge] further acknowledges the two (2) unresolved inquiries pending before the Commission [ ] that remain pending and unaffected by this Agreement.

The Commission unanimously approved the Stipulation of Agreed Facts and Proposed Recommendation.However, in their Findings of Fact and Recommendation to this Court, the Commission did not incorporate the language contained in paragraph 12 cited above.

¶ 7.Pursuant to Section 177A of the Mississippi ConstitutionandRule 10(A) of the Rules of the Mississippi Commission on Judicial Performance, the matter was presented to this Court.SeeMiss. Const. art. 6, § 177A;Miss. Comm'n on Judicial PerformanceR. 10(A).On September 1, 2016, the Commission filed a Motion for Approval of Recommendation Filed by the Mississippi Commission on Judicial Performance and a Brief in Support of Joint Motion for Approval of Recommendation Filed by the Mississippi Commission on Judicial Performance.

ANALYSIS

¶ 8.The Mississippi Constitution vests this Court with the power, "[o]n recommendation of the commission on judicial performance...[to] remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for ... willful misconduct in office ... or [ ] conduct prejudicial to the administration of justice which brings the judicial office into disrepute...."Miss. Const. art. 6, § 177A."This Court, as the ultimate decision-maker in judicial performance cases, makes the final determination as to the appropriate action to be taken when a judge has committed willful misconduct or conduct prejudicial to the administration of justice that brings the judicial office into disrepute...."Miss. Comm'n on Judicial Performance v. Skinner , 119 So.3d 294, 299(Miss.2013)(citations omitted).

I.Misconduct

¶ 9.Judge admits that, when he threatened to use a gun on a defendant, he was guilty of misconduct.Judge also admits that it was improper to make disparaging remarks to the defendant's mother, demean her parenting skills, and make other demeaning comments and accusations.Judge acknowledges that his conduct violated Canons 1, 2, 3(B)(4), and 3(B)(5) of the Code of Judicial ConductandSection 177A of the Mississippi Constitution.

¶ 10.We have made it "quite clear that the power granted to judges does not license them to be disrespectful to the lawyers and citizens who appear in their courtrooms; and that judges must conduct themselves with appropriate judicial demeanor."Miss. Comm'n on Judicial Performance v. Smith , 78 So.3d 889, 893(Miss.2011), overruled in part on other grounds byMiss. Comm'n on Judicial Performance v. Darby , 78 So.3d 889(Miss.2011).

¶ 11.In Smith , the judge "acknowledged that he abused his contempt powers and exhibited poor courtroom demeanor."Smith , 78 So.3d at 890.The judge further admitted that he"address[ed] the lawyers and bail bondsman discourteously, that is, without respect and appropriate judicial temperament [sic]...."Id. at 892.That Court held that the judge "committed willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute."Id. at 895.In Mississippi Commission on Judicial Performance v. Gunter , 797 So.2d 988(Miss.2001), that Court held that the judge violated the Code of Judicial Conduct when he called a defendant's mother before the bench and "harshly berated and humiliated her."Gunter , 797 So.2d at 989.

¶ 12.We accept the Commission's findings and the Judge's admission that his actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.We will now consider what sanctions are commensurate with this finding.

II.Sanctions

¶ 13.The sanctions in a judicial misconduct case should be proportionate to the judge's offense.Miss. Comm'n on Judicial Performance v. Harris , 131 So.3d 1137, 1144(Miss.2013).To determine whether the recommended sanctions are proportionate to the offense, this Court applies a six-factor test, which includes the following:

(1) the length and character of the judge's public service; (2) whether there is any prior caselaw 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)

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