Miss. Comm'n On Judicial Performance v. Cowart

• Decision Date: 20 October 2011
• Docket Number: No. 2010–JP–01903–SCT.,2010–JP–01903–SCT.
• Citation: 71 So.3d 590
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCEv.Nell Y. COWART.

71 So.3d 590

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

v.Nell Y. COWART.

No. 2010–JP–01903–SCT.

Supreme Court of Mississippi.

Sept. 8, 2011.Rehearing Denied Oct. 20, 2011.

John B. Toney, attorney for appellant.Lawrence C. Gunn, Jr., Hattiesburg, attorney for appellee.EN BANC.CHANDLER, Justice, for the Court:

¶ 1. On April 7, 2009, the Mississippi Commission on Judicial Performance (Commission), filed a formal complaint against Nell Y. Cowart, justice court judge for the Southeast District, Pearl River County, Mississippi, alleging judicial misconduct actionable pursuant to Article 6, Section 177A, Mississippi Constitution of 1890, as amended. Judge Cowart acknowledges her misconduct and joins the Commission's recommendation for sanctions. After conducting an independent inquiry of the record and giving careful consideration to the findings of fact and recommendation of the Commission, we adopt the agreed-upon sanctions.

FACTS AND PROCEDURAL HISTORY

¶ 2. Judge Cowart and the Commission agree on the following factual history. On January 27, 2009, Officer Donald Saucier requested Judge Cowart to sign a search warrant. Cowart refused. This search warrant authorized employees of the Pearl River Sheriff's Department to seize and search a computer belonging to Anita Carol Pearson.

¶ 3. On February 6, 2009, Pearson was arrested by the deputies of the Pearl River County Sheriff's Department and charged with eight felony counts related to kidnapping, armed robbery, and extortion. Pearson was brought before Judge Cowart for her initial appearance; Judge Cowart ordered the handcuffs and shackles be removed from Pearson, and stated that “Pearson was not a criminal.” Judge Cowart set bond at $21,500.

¶ 4. A few weeks later, Pearson was arrested again by the Pearl River County Sheriff's Department. This time, Pearson was charged with conspiracy to intimidate a state witness. Judge Cowart claimed she assumed this second arrest was for the previous charge, in which bond already had been posted. Judge Cowart communicated with Pearson's husband about the second arrest, and she called the sheriff's department in an attempt to release Pearson from jail. After having no success in releasing Pearson, Judge Cowart called the jail again and demanded to speak with Pearson. Judge Cowart admitted she made this phone call in an attempt to help release Pearson from jail.

¶ 5. In Pearson's second initial appearance, Judge Cowart again ordered the removal of Pearson's handcuffs and shackles. Judge Cowart stated that Pearson was not a criminal, and “would not spend another night in jail.” While an officer was testifying concerning the allegations against Pearson, Judge Cowart became emotional and tearful. After Judge Cowart set bond at $5,000, Pearson was removed from the courtroom, and Judge Cowart apologized to the officers for her emotional display of sympathy toward Pearson.

¶ 6. On the basis of these actions, on April 7, 2009, the Commission filed a formal complaint against Judge Cowart. The complaint was later amended. On July 10, 2009, Cowart filed a response to the amended formal complaint, admitting she had engaged in ex parte communications with Pearson's husband only because she had assumed the sheriff's department was engaging in “illegal and overbearing activities.” Judge Cowart also admitted ordering Pearson's handcuffs and shackles removed, but claimed she had set Pearson's bond at an appropriate amount and had refused to sign the search warrant only because she was busy with other cases.

¶ 7. A hearing was set for November 9, 2009, was continued several times, and ultimately was set for November 29, 2010. The hearing was never completed. On November 5, 2010, the parties filed an agreed statement of facts and proposed recommendation. On November 12, 2010, the Commission accepted the agreed statement of facts and proposed recommendation. The Commission recommended that Cowart be publicly reprimanded, suspended from the office of justice court judge, Southeast District, Pearl River County, Mississippi, for a period of sixty days without pay and assessed costs in the sum of $2,139.63 pursuant to Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 8. The Commission and Judge Cowart filed a joint motion for approval of recommendation filed by the Commission. Both the Commission and Judge Cowart then filed memorandum briefs in support of the joint motion for approval of recommendation filed by the Commission.

STANDARD OF REVIEW

¶ 9. In reviewing judicial misconduct cases, this Court is obligated to conduct an “independent inquiry of the record,” and in so doing, to “accord careful consideration [of] the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.” In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743, 746 (Miss.1982). This Court is not bound by the Commission's findings and may impose additional sanctions. Miss. Comm'n on Judicial Performance v. Hartzog, 32 So.3d 1188, 1193 (Miss.2010) (citing Miss. Comm'n on Judicial Performance v. Osborne, 16 So.3d 16, 19 (Miss.2009) ( Osborne IV )); Miss. Comm'n on Judicial Performance v. Boland, 975 So.2d 882, 888 (Miss.2008) ( Boland I )).

DISCUSSION

I. Whether Judge Cowart's conduct constitutes misconduct in violation of Canons 1, 2A, 2B, 3B(2), and 3B(7) of the Mississippi Code of Judicial Conduct, thus causing this matter to be actionable under Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 10. This Court determines if the judge in question has engaged in willful misconduct, prejudicial to the administration of justice, which brings the judicial office into disrepute pursuant to Section 177A of the Mississippi Constitution of 1890, as amended. Willful misconduct has been defined by this Court as follows:

Willful misconduct in office is the improper or wrongful 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.

Miss. Comm'n on Judicial Performance v. Brown, 37 So.3d 14, 20 (Miss.2010) (citing In re Quick, 553 So.2d 522, 524 (Miss.1989) (quoting In re Anderson, 412 So.2d at 745; In re Nowell, 293 N.C. 235, 237 S.E.2d 246, 255 (1977)). It is not necessary that the behavior be willful. Miss. Comm'n on Judicial Performance v. Boykin, 763 So.2d 872, 875 (Miss.2000). This Court has held that a judge “through negligence or ignorance not amounting to bad faith, [may] behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. The result is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions.” In re Inquiry Concerning Judge William Anderson, 451 So.2d 232, 234 (Miss.1984).

¶ 11. The Commission determined by clear and convincing evidence that Judge Cowart had violated Code of Judicial Conduct Canons 1 (integrity and independence of the judiciary); 2A (acting in a manner that promotes public confidence in the integrity and impartiality of the judiciary); 2B (refraining from family, social, or other relationships influencing judicial conduct and judgment); 3B(2) (faithfulness and competence in the law); and 3B(7) (not considering communications made to the judge outside the presence of the parties in a pending matter). After conducting an independent review of the record, we agree.

¶ 12. The Commission determined that Judge Cowart refused to sign a search warrant referencing Pearson's computer. When Pearson was arrested and brought before Judge Cowart for her initial appearance, Judge Cowart ordered the handcuffs and shackles removed from Pearson and stated from the bench that Pearson was not a criminal. When Pearson was arrested a second time, Judge Cowart assumed the arrest was for the same charges; she then gave assistance to Pearson and Pearson's husband, including calling the sheriff's department and demanding Pearson be released. When Pearson made her second appearance before Judge Cowart, Judge Cowart again ordered the handcuffs and shackles removed and proceeded to make statements from the bench that Pearson was not a criminal and would not spend another night in jail. Judge Cowart appeared emotional during an officer's testimony of Pearson's actions; she later apologized to the officers.

¶ 13. We agree that Judge Cowart violated Canons 1, 2A, 2B, 3B(2), and 3B(7) of the Mississippi Code of Judicial Conduct and that her actions constituted willful misconduct and conduct prejudicial to the administration of justice, under Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

II. Whether Judge Cowart should be publicly reprimanded; suspended without pay for a period of sixty days; and assessed all costs of the proceeding, in the amount of $2,139.63, as recommended by the Commission.

¶ 14. The Commission recommended that Judge Cowart receive a public reprimand; suspension for a period of sixty days without pay; and assessment of costs in the amount of $2,139.63. After conducting an independent inquiry, we agree.

¶ 15. This Court has the sole duty to impose appropriate sanctions for judicial misconduct. Boland, 975 So.2d at 895. The Mississippi Constitution sets forth sanctions this Court may impose in judicial performance matters. The Mississippi Constitution states:

On recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration...