Miss. Comm'n on Judicial Performance v. Weisenberger

• Citation: 201 So.3d 444
• Decision Date: 13 October 2016
• Docket Number: NO. 2015-JP-00246-SCT,2015-JP-00246-SCT
• Parties: Mississippi Commission on Judicial Performance v. Justice Court Judge Bill Weisenberger
• Court: United States State Supreme Court of Mississippi

201 So.3d 444

Mississippi Commission on Judicial Performance

v.Justice Court Judge Bill Weisenberger

NO. 2015-JP-00246-SCT

Supreme Court of Mississippi.

October 13, 2016

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

ATTORNEYS FOR APPELLEE: WILLIAM B. KIRKSEY, CHRISTINA RENEE HUFFMAN

EN BANC.

KING

, JUSTICE, FOR THE COURT:

¶ 1. The Mississippi Commission on Judicial Performance recommends to this Court that former Madison County Justice Court Judge William “Bill” Weisenberger Sr. be removed from office after finding by clear and convincing evidence that Weisenberger physically and verbally assaulted a mentally disabled individual at the 2014 Canton Flea Market. Because of the egregious nature of Weisenberger's actions, this Court agrees with the Commission's recommendation and removes Weisenberger from office. Weisenberger is directed to pay a fine in the amount of $1,000 and costs of these proceedings in the amount of $5,918.46.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Commission on Judicial Performance filed a Formal Complaint against Weisenberger on October 14, 2014, charging Weisenberger with three counts of judicial misconduct constituting 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 first charge derived from events that occurred at the Canton Flea Market on May 8, 2014. Specifically, the Commission alleged that Weisenberger had physically assaulted a mentally handicapped African-American male and had directed racial slurs toward him and that, the same day, Weisenberger had argued with a female vendor and stated to the vendor's husband that “he did not take orders from a woman.” The second charge alleged that Weisenberger had issued disparate sentences based on race while presiding over the criminal docket of the Madison County Justice Court. Count three alleged that Weisenberger had issued a warrant for the arrest of an African-American male for the nonexistent charge of “Roaming Cattle.”

¶ 3. As a result of the allegations, in July or August of 2014, Weisenberger took a voluntary leave of absence from the bench. Weisenberger was indicted in January 2015 for “purposely, knowingly, willfully, unlawfully and feloniously caus[ing] bodily injury to [Eric] Rivers, a vulnerable person.”¹ Thereafter, on February 13, 2015, the Commission filed a Petition for Interim Suspension, recommending that this Court suspend Weisenberger, without pay, pending the outcome of the Formal Complaint. This Court issued an order on March 26, 2015, granting the Commission's recommendation to suspend Weisenberger temporarily but denying the Commission's recommendation for the suspension to be without pay.

¶ 4. On June 23-24, 2015, the Commission conducted a hearing before a Committee comprised of Presiding Member Justice Court Judge Edwin Woods; Vice-Chairman Rick Coulter; and Lay Member Jeff Adcock. Twenty-one witnesses provided sworn testimony.

¶ 5. The Committee issued its Findings of Fact and Recommendations on November 16, 2015. The Committee recommended dismissal of three counts of the Formal Complaint, because clear and convincing evidence had not been adduced at the hearing that Weisenberger had violated the Mississippi Code of Judicial Conduct as charged: Count One, as it pertained to Kelly Ray, that Weisenberger had stated that he would talk to Ray's husband because “he did not take orders from a woman”; Count Two, that Weisenberger had issued disparate sentences based on race while presiding over the criminal docket of the Madison County Justice Court; and Count Three, that Weisenberger had issued a warrant for the nonexistent charge of “Roaming Cattle.”

¶ 6. The Committee next recommended that Count One, as it pertained to Eric Rivers and the charge that Weisenberger had physically assaulted and directed racial slurs at a mentally handicapped African-American male, be sustained because the evidence clearly and convincingly showed that Weisenberger had violated the Mississippi Code of Judicial Conduct. The Committee found that Weisenberger had been working at the Canton Flea Market on May 8, 2014, by directing traffic and assisting with the parking of vehicles. Weisenberger was dressed in khaki battle dress uniform (“BDUs”) and a dark blue shirt with the Seal of the State of Mississippi embroidered on it, which gave Weisenberger the appearance of a deputy sheriff or security officer. He also had a firearm and a pocket knife on his person. On that day, Madison County Deputy Sheriff Brad Sullivan had observed then-twenty-three-year-old Rivers inappropriately touching a black female and had ordered Rivers to leave the area. Deputy Sullivan walked with Rivers to ensure that he left the area. Later that day, Deputy Sullivan again saw Rivers inappropriately touching other black females and again directed him to leave the area. Deputy Sullivan did not arrest Rivers and no victims filed charges against him.

¶ 7. After the second time Deputy Sullivan directed Rivers to leave the area, Deputy Sullivan used his radio to alert other security staff members about Rivers's presence. Weisenberger heard the radio transmission, briefly encountered Rivers, slapped him in the back of the head, called Rivers a “n*****,” and directed Rivers to run in the direction that Weisenberger indicated to him. This happened in the early afternoon hours of May 8, 2014. The Committee additionally found that Rivers has no obvious physical disabilities; however, he regularly had been treated for mental problems and a learning disability and took two medications. On November 16, 2015, the Committee recommended that Weisenberger be suspended for 180 days without pay and that Weisenberger be assessed all costs and expenses incurred in this proceeding.

¶ 8. Weisenberger objected to the Committee's Findings, arguing that the allegations concerning Rivers had not been established by clear and convincing evidence and that the Committee had not set forth any facts to support its findings. Weisenberger also objected to the Committee's Recommendations, arguing that he had been defeated at the polls and would no longer be a justice court judge after January 2016.

¶ 9. The Commission unanimously adopted the Committee's findings but disagreed as to the recommendation. On December 17, 2015, the full Commission found that Weisenberger's conduct was so egregious that it would be error to recommend anything short of removal from office. The Commission recommended that Weisenberger be: 1) removed from office; 2) assessed a fine of $1,000; and 3) assessed costs of this proceeding in the amount of $5,918.46. After conducting a de novo review of the record, this Court agrees with the Commission and adopts the Commission's findings and recommended sanctions.

ANALYSIS

¶ 10. Section 177A of the Mississippi Constitution provides that the Commission may make a recommendation to this Court to “remove from office, suspend, fine, or publicly censure or reprimand any justice or judge of this state ....” Miss. Const. art. 6, § 177A

. This Court accords “careful consideration of the findings of fact and recommendations of the Commission, or its committee.” Miss. Comm'n on Judicial Performance v. Walker , 172 So.3d 1165, 1167 (Miss. 2015). However, this Court may “accept, reject or modify, in whole or in part, the findings and recommendations of the Commission.” In re Anderson , 412 So.2d 743, 746 (Miss. 1982). In doing so, this Court must make its “own, independent evaluation of the record evidence ....” Id. (quoting Geiler v. Comm'n on Judicial Qualifications , 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1, 4 (1973).

¶ 11. The Commission alleges that Weisenberger's conduct violated Canons 1, 2A, and 4A of the Code of Judicial Conduct, which constituted a violation of Section 177A of the Mississippi Constitution. Weisenberger now argues that the Commission's Findings of Fact, Conclusions of Law, and Recommendations are not supported by clear and convincing evidence.

I. Whether Weisenberger committed misconduct.

¶ 12. The Commission found that Weisenberger had slapped Rivers in the back of the head, had directed a racial slur at Rivers, and had told Rivers to run in a certain direction. This Court agrees that these allegations are supported by clear and convincing evidence. This Court has found willful misconduct in office to be:

the improper or wrong 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 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 which 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.

Miss. Comm'n on Judicial Performance v. Harris , 131 So.3d 1137, 1142 (Miss. 2013)

(quoting In re Quick , 553 So.2d 522, 524 (Miss. 1989) ).

¶ 13. Canon 1 of the Code of Judicial Conduct

requires a judge to preserve the integrity and independence of the judiciary. It states that “an independent and honorable judiciary is indispensable to justice in our society.” Canon 2(A) requires a judge to respect and comply with the law and to “act at all times in a manner that promotes public confidence in the integrity...