Miss. Comm'n On Judicial Performance v. Mcgee

Decision Date20 October 2011
Docket NumberNo. 2011–JP–00114–SCT.,2011–JP–00114–SCT.
Citation71 So.3d 578
PartiesMISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCEv.Jimmy McGEE.
CourtMississippi Supreme Court

OPINION TEXT STARTS HERE

Darlene D. Ballard, John B. Toney, attorneys for appellant.Ronald D. Michael, Booneville, attorney for appellee.EN BANC.

CARLSON, Presiding Justice, for the Court:

¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed two formal complaints against Alcorn County Justice Court Judge Jimmy McGee, alleging willful misconduct and conduct prejudicial to the administration of justice which brings the office into disrepute. The Commission and Judge McGee submitted to this Court a joint motion for approval of the recommendation of a 120–day suspension from office without pay, a public reprimand, and assessment of costs of this proceeding in the amount of $100.

¶ 2. After our independent review, we agree that Judge McGee's conduct violated various canons of our Code of Judicial Conduct and constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, thus causing such conduct to be actionable pursuant to the provisions of the Mississippi Constitution. Miss. Const. art 6, § 177A (1890). However, we respectfully disagree with the Commission's recommendation. For the reasons discussed below, we find that Judge McGee's actions warrant a public reprimand, suspension from office without pay for 270 days, and assessment of costs of this proceeding in the amount of $100.

FACTS AND PROCEEDINGS BEFORE THE COMMISSION

¶ 3. The Commission appropriately consolidated the two formal complaints and referred to the charge set out in Inquiry No.2009–241 as Count One, and to the charge set out in Inquiry No.2010–046 as Count Two. In lieu of a hearing before the Commission, Judge McGee (Respondent) and the Commission entered into an Agreed Statement of Facts and Proposed Recommendation, which states, the following:

COUNT ONE (2009–241)

During April, 2008 the Respondent learned that a relative of the Respondent had allegedly been the victim of a crime. Respondent actively participated in the investigation of the matter which resulted in the indictment and arrest of a person identified herein as “A.B.”

Subsequent to the indictment and arrest of A.B., the Respondent, in his official capacity as Justice Court Judge, interfered with the orderly prosecution of the case against A.B. Respondent interfered with A.B.'s attempt to post bond, insisting that A.B. only be allowed to post a cash or written bond. Respondent became upset upon learning that A.B.'s family was allowed to post a property bond rather than a cash bond of $50,000 as Respondent proposed to law enforcement. Subsequently, the Respondent disrupted an executive session of the Alcorn County Board of Supervisors by entering the closed meeting uninvited, angrily complaining of the sheriff's actions relating to the bond and otherwise causing a disturbance and an interruption of the business of the said Board of Supervisors.

Respondent then interfered with A.B.'s attempts to employ legal counsel by discouraging local attorneys from representing A.B. thereby attempting to deny A.B. his constitutional right to counsel and to a fair criminal proceeding.

On or about the 13th day of April, 2009, Respondent appeared at the public hearing for acceptance of A.B.'s misdemeanor guilty plea and sentencing in the Circuit Court of Alcorn County, Mississippi. The presiding Circuit Judge allowed the Respondent to address the Court and the following was stated by Respondent on the record and in open court:

I could assure you that if anything like this ever happened to anybody that I know, my advice to them would be do not use the court, handle it themselves.

I would like for everyone in this court to know that had I had this to do over again we would never had went to a grand jury, that we would have taken care of this down at Biggersville, Mississippi, down on the farm like things should have been taken care of.

COUNT TWO (2010–046)

The Respondent, in his official capacity as Justice Court Judge, individually and in concert with others, allowed certain misdemeanor charges to be remanded, non-adjudicated and “retired to the files” without authority of law, thereby failing to properly adjudicate criminal matters assigned to him. Specifically, Respondent, upon Motion of the County Prosecuting Attorney to Retire to Files, allowed the de facto non-adjudication of charges of Driving Under the Influence (DUI), said conduct likewise amounting to a reduction of the charge, a violation of § 63–11–39 of the Mississippi Code of 1972, as amended, Implied Consent Law.1

The Respondent, without authority of law and in violation of § 63–11–39 of the Mississippi Code of 1972, as amended, Implied Consent Law,2 on motion of the County Prosecuting Attorney and in concert with her, “retired to the files” charges of DUI upon defendants' successful completion of alcohol and drug treatment programs when the Respondent knew, or should have known, that the successful completion of such treatment programs by defendants could not serve as a lawful basis for the non-adjudication of DUI charges.3

¶ 4. This Agreed Statement of Facts and Recommendation (Agreement) was signed by John B. Toney, the Commission's executive director, Judge McGee, and Judge McGee's counsel. Thereafter, the Commission, based on this Agreement, submitted its Findings of Fact and Recommendation. The Commission found by clear and convincing evidence that by engaging in the conduct described in the Agreement, Judge McGee, in his official capacity as Justice Court Judge, Post 2, Alcorn County, Mississippi, had violated certain canons of the Mississippi Code of Judicial Conduct, particularly: Canons 1 (charging judges to uphold the integrity and independence of the judiciary); 2A and 2B (charging judges to avoid impropriety and the appearance of impropriety, in all activities, including respecting and complying with the law and not allowing personal relationships to influence their conduct or judgment); 3B(2) and 3B(8) (charging judges to impartially and diligently perform their judicial duties by, inter alia, being faithful to the law and avoiding being swayed by partisan interests as well as disposing of all judicial matters promptly, efficiently and fairly); and 4A(2) (charging judges to conduct their extrajudicial activities so as to not demean the judicial office); and that this judicial conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute under Section 177A of the Mississippi Constitution of 1890.

¶ 5. On the other hand, the Commission further found in mitigation that Judge McGee had acknowledged his errors and had fully cooperated with the investigation by the Commission; that in count one, Judge McGee had acknowledged and regretted that, in his effort to protect his relative, he improperly had used the prestige of his office as justice court judge to interfere with the fair and orderly prosecution of A.B. and agreed that his actions could be considered demeaning to the office of justice court judge; that, additionally, in count two, each of the DUI charges was nonadjudicated upon written motion of the county prosecuting attorney; that Judge McGee was a nonlawyer and had relied to a certain extent upon the written motion of the county prosecuting attorney in deciding to nonadjudicate the DUI charges; that Judge McGee had ordered alcohol and drug treatment in lieu of conviction in an attempt to prevent recidivism, although Judge McGee acknowledged that the successful completion of the treatment programs could not serve as the basis for nonadjudication under the Implied Consent Law; and that Judge McGee no longer ordered defendants charged with DUI to treatment programs for the purpose of nonadjudication of DUI charges.

¶ 6. In the end, the Commission recommended that Judge McGee be suspended from office without pay for a period of thirty days in count one; suspended from office without pay for a period of ninety days in count two; publicly reprimanded; and assessed costs in the amount of $100. This recommended sanction resulted in a total recommended suspension of 120 days, without pay. These sanctions were consistent with the sanctions to which Judge McGee had agreed in the Agreed Statement of Facts and Proposed Recommendation submitted to the Commission.

DISCUSSION

¶ 7. This Court's standard of review in judicial-performance proceedings is derived from Rule 10E of the Mississippi Rules of the Commission on Judicial Performance, which states:

Based upon a review of the entire record, the Supreme Court shall prepare and publish a written opinion and judgment directing such disciplinary action, if any, as it finds just and proper. The Supreme Court may accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission. In the event that more than one (1) recommendation for discipline of the judge is filed, the Supreme Court may render a single decision or impose a single sanction with respect to all recommendations.

This Court has succinctly stated its role in judicial-performance proceedings as:

The power to impose sanctions is delegated solely to this Court; it therefore follows [that] we have an obligation to conduct an independent inquiry of the record in order to make our final determination of the appropriate action to be taken in each case. In so doing, we will 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). See also Miss. Comm'n on Judicial Performance v. Boone, 60 So.3d 172, 176–77 (Miss.2011).I. ...

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7 cases
  • Miss. Comm'n on Judicial Performance v. Skinner
    • United States
    • Mississippi Supreme Court
    • August 1, 2013
    ...was for her client's ex-husband, because Judge Bustin “interfered with the administration of justice”); Miss. Comm'n on Judicial Performance v. McGee, 71 So.3d 578 (Miss.2011) (Court found moral turpitude where Judge McGee interfered in the criminal prosecution against someone who had commi......
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    ...assigned to Judge Sheffield. ¶ 11. The case is distinguishable from this Court's recent opinions in Mississippi Commission on Judicial Performance v. McGee, 71 So.3d 578, 589 (Miss.2011); and Mississippi Commission on Judicial Performance v. Little, 72 So.3d 501 (Miss.2011) In those cases, ......
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    ...the county prosecuting attorney. Miss. Comm'n on Judicial Performance v. Little, 72 So.3d 501 (Miss.2011); Miss. Comm'n on Judicial Performance v. McGee, 71 So.3d 578 (Miss.2011). We held that the Commission erroneously had found, and the accused judges had agreed, this practice to be prohi......
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    • May 21, 2015
    ...Further, the sanction in a judicial misconduct case should fit the offense. Id. As this Court held in Mississippi Commission on Judicial Performance v. McGee, 71 So.3d 578, 585 (Miss.2011), “[t]he appropriate sanction should recognize the misconduct, deter and discourage similar behavior, p......
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