Miss. Comm'n On Judicial Performance v. Harris

• Decision Date: 05 December 2013
• Docket Number: No. 2013–JP–00496–SCT.,2013–JP–00496–SCT.
• Citation: 131 So.3d 1137
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. D. Neil HARRIS, Sr.
• Court: Mississippi Supreme Court

131 So.3d 1137

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

v.D. Neil HARRIS, Sr.

No. 2013–JP–00496–SCT.

Supreme Court of Mississippi.

Dec. 5, 2013.

John B. Toney, Darlene D. Ballard, attorney for appellant.

John G. Corlew, attorney for appellee.

EN BANC.

DICKINSON, Presiding Justice, for the Court:

¶ 1. In this judicial-misconduct case, Chancellor D. Neil Harris abused his contempt powers, failed to recuse himself from contempt proceedings, and prevented those he charged with contempt from presenting any defense. This Court finds an appropriate sanction to be a public reprimand, a $2,500 fine, and assessment of the costs of this proceeding in the amount of $200.

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts precipitating this judicial-performance complaint are not in dispute. In 2010, the Mississippi Department of Human Services enlisted a private contractor—utilizing private process servers—to pursue child-support and paternity proceedings over which Judge Harris presided in the Sixteenth Chancery Court District. While presiding over these cases, Judge Harris obtained information that suggested some of the parties had not been properly served with process and that returns on the summonses were falsified. In response, Judge Harris instituted contempt proceedings against five process-servers, the owner of the private service company, and two notaries public.

¶ 3. On June 11, 2010, Judge Harris issued show-cause orders and subpoenas for process server Guy Jernigan and notary public Thomas Corey McDonald to appear on June 14, 2010. At that contempt hearing, Judge Harris found Jernigan and McDonald in civil contempt for failing to provide proper service as well as for filing and notarizing improper affidavits. Judge Harris ordered them to appear for sentencing on June 24, 2010.

¶ 4. At the sentencing hearing, Judge Harris also found Edwin Cheshire—Jernigan's and McDonald's employer—in civil contempt. Judge Harris imposed monetary sanctions and ordered the three men to write apology letters to the judges of the Sixteenth Chancery Court District. He also enjoined Jernigan and McDonald from serving process or notarizing documents in that district, and he ordered the weekend incarceration of all three men until they purged themselves of contempt. Thereafter, the individuals sought emergency relief from this Court.

¶ 5. On July 20, 2010, Judge Harris issued additional show-cause orders and subpoenas, this time for process-servers Shane Corr and Chris Lott; for Craig Wells, the owner of a process-serving company; and for notary public David Smith, ordering them to appear on July 27, 2010. At the hearing on July 27, Judge Harris found Corr, Lott, Wells, and Smith guilty of civil contempt for failure properly to serve process, as well as for filing and notarizing improper affidavits. He ordered them to appear on August 17, 2010, for sentencing, and he issued a subpoena for Rick Moon to appear at the sentencing hearing. At the August 17 sentencing hearing, Judge Harris found Lott, Corr, Wells, Smith, and Moon to be in direct criminal contempt, and he sentenced each offender to thirty days' incarceration and a $100 fine.

¶ 6. On August 24, 2010, Judge Harris issued a show-cause order for process-server Tracey Walker, ordering him to appear on September 24, 2010. At that hearing, Judge Harris found Walker in direct criminal contempt and sentenced him to thirty days in jail and a $1,000 fine.

¶ 7. At each show-cause hearing, Judge Harris denied the defendants the procedural protections of due process. Specifically, Judge Harris refused to allow the defendants' attorneys to speak or present a defense in any way. He also failed to recuse himself from any of the hearings, despite the fact that he was the citing judge in all cases.

¶ 8. On September 9, 2010, this Court denied the emergency relief sought by Jernigan, McDonald, and Cheshire, but found that the individuals should have been cited for constructive criminal contempt rather than civil contempt. We directed Judge Harris to comply with this Court's dictate in Cooper Tire & Rubber Company v. McGill, which held that a person charged with constructive criminal contempt is entitled to procedural safeguards, including the recusal of the citing judge.¹

¶ 9. We vacated Judge Harris's orders against Corr, Lott, Wells, Smith, Moon, McDonald, Jernigan, and Cheshire, finding that all of the orders violated the defendants' procedural due-process rights. We remanded those cases to the trial court with orders for Judge Harris to recuse himself, which Judge Harris already had done by the end of September 2010. Tracey Walker's case was not appealed.

¶ 10. Acting on complaints by David Smith and attorney John M. Colette, the Mississippi Commission on Judicial Performance instituted the present proceedings by formal complaint, charging Judge Harris with willful misconduct and conduct detrimental to the administration of justice which brings the judicial office into disrepute in violation of Section 177A of the Mississippi Constitution of 1890 and Canons 1, 2A, 3B(1), 3B(4), and 3(E)(1)(a) of the Mississippi Code of Judicial Conduct. Judge Harris answered the complaint, after an extension of time, on January 10, 2011.

¶ 11. The Commission and Judge Harris submitted an Agreed Statement of Facts and Proposed Recommendation. The Commission filed its findings and recommendation with this Court, recommending that Judge Harris be publicly reprimanded, fined $2,500, and assessed costs of this proceeding in the amount of $200.

ANALYSIS

¶ 12. This Court has the sole authority to impose sanctions for judicial misconduct.² When reviewing a judicial-misconduct complaint, we conduct a de novo review, “giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Mississippi Commission on Judicial Performance.” ³ When determining an appropriate sanction, we have held that we will conduct “an independent inquiry of the record” and render an independent judgment. ⁴ But when “the judge and Commissionagree on the facts, [this Court] ordinarily will accept the findings as true.” ⁵

I. Whether Judge Harris committed misconduct.

¶ 13. Judge Harris, while acting as chancellor, held five process-servers, a company owner, and two notaries public in contempt for alleged false returns on summonses and false notarizations. Then, after ordering show-cause hearings in each case, Judge Harris failed to provide the due-process procedural safeguards we enumerated in Cooper Tire.⁶ During several show-cause hearings, Judge Harris refused to allow the defendants' attorneys to speak or otherwise defend their clients. Judge Harris also failed to recuse himself from the hearings, even though he was the citing judge in all cases. Judge Harris agreed with the Commission's findings and joined the Commission's motion for approval of recommendations.

¶ 14. Though great deference is given to the Commission's findings, it is ultimately this Court's responsibility to decide whether the conduct of a judge constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, pursuant to Section 177A of the Mississippi Constitution.⁷ This Court has held that willful misconduct in office is:

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.⁸

¶ 15. This Court also has noted that a judge may “through negligence or ignorance not amounting to bad faith, behave in manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.” ⁹ We have further explained that “misconduct does not have to be embedded in any form of bad behavior”—ignorance and incompetence can amount to conduct that violates Section 177A of the Mississippi Constitution.¹⁰

¶ 16. The procedural safeguards that Judge Harris failed to observe apply only to constructive contempt cases.¹¹ Constructive criminal contempt is based on an act that “occurred ‘in whole or in part ... outside the presence of the judge.’ ” ¹² Judge Harris held five process-servers, a company owner, and two notaries public in direct criminal contempt for alleged false returns on summons and false notarizations of summons. Because these acts all occurred outside the presence of the judge, they resulted in constructive criminal contempt, not direct criminal contempt.

¶ 17. In Mississippi Commission on Judicial Performance v. Darby, Judge Darby held a mother in contempt for failing to comply with her order to obtain insurance for her child.¹³ Judge Darby failed to comply with the procedural safeguards which require providing specification of the charges, notice, and a hearing to individuals cited for constructive contempt, and she did not recuse herself from the show-cause hearings.¹⁴ We held that her conduct violated the Canons of the Code of Judicial Conduct and was actionable as provided in Section 177A of the Mississippi Constitution. ¹⁵

¶ 18. A judge who abuses the court's contempt power...