Mississippi Com'n on Judicial Performance v. Whitten
| Decision Date | 30 January 1997 |
| Docket Number | No. 96-CC-00435-SCT,96-CC-00435-SCT |
| Citation | 687 So.2d 744 |
| Parties | MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. John W. WHITTEN, III. |
| Court | Mississippi Supreme Court |
Luther T. Brantley, III, MS Comm. Judicial Performance, Jackson, for Petitioner.
John W. Whitten, III, Sunmer, pro se.
En Banc.
This cause comes to the Court pursuant to findings by the Mississippi Commission on Judicial Performance. On information and belief and acting upon a sworn citizen complaint of Randy A. Cox, John Phillip Spinosa and Tod D. Logan, the Commission charged John W. Whitten, III, with judicial misconduct constituting conduct prejudicial to the administration of justice which brings the judicial office into disrepute as set forth in Section 177A, Mississippi Constitution of 1890, as amended.
The Commission heard and considered the evidence and testimony, and found that at all times during these proceedings and that time period covered by the formal complaint in this cause, Judge John W. Whitten, III, was and is the Municipal Judge for Oakland, Tutwiler and Webb, Mississippi municipalities.
The Commission further found that, although all of the actions taken by Judge Whitten that are complained of in this cause were not taken in any official capacity, Judge Whitten's actions were so serious in nature and possibly life threatening, that they could not be overlooked. Further, said actions fell squarely in conflict with and in violation of Canons 1 and 2A of the Mississippi Code of The Commission recommends that the serious nature of the actions of Judge John W. Whitten, III requires, at a minimum, a public reprimand with a fine of $2,500 plus all costs of these proceedings.
Judicial Conduct and in violation of Section 177A of the Mississippi Constitution of 1890, as amended. It was the opinion of the Commission that Judge Whitten's actions constituted conduct prejudicial to the administration of justice which brought the judicial office into disrepute.
This cause was heard by a panel of the Mississippi Commission on Judicial Performance, comprised of Judge Frank M. Coleman, Presiding Member, Judge John C. Love, Jr. and Mr. William Ed Younk. The panel was called as a result of three formal complaints having been filed against Judge Whitten for actions taken by him against three separate individuals, namely, Cox, Spinosa and Logan. A formal complaint was filed against Judge Whitten on August 28, 1995.
The panel having heard and considered the evidence and testimony and submitted its findings of fact, conclusions and recommendations, the full Commission then considered the record, the committee's findings of fact, conclusions and recommendation, and objections submitted by Judge Whitten. The Commission recommended a public reprimand and a $2,500 fine. Erik M. Lowrey, a member of the Commission, dissented to the Commission's recommendation, instead recommending the removal of Judge Whitten from office and requiring the forfeiture and repayment of all salary Judge Whitten received as municipal court judge subsequent to the date of the incident in question.
The Commission's majority recommendation is now before this Court for review pursuant to Rule 10 of the Rules of the Mississippi Commission on Judicial Performance.
During these proceedings and that time period covered by the formal complaint in this cause, Judge John W. Whitten, III, was and is the Municipal Judge for Oakland, Tutwiler and Webb, Mississippi municipalities.
The basis of the three formal complaints against Judge Whitten stem from the same set of facts which occurred on the same day and time but involved three separate individuals.
Judge Whitten appeared before the hearing panel without legal counsel, representing himself, and Wyatt Collins represented the Commission on Judicial Performance.
On or about March 19, 1995, Cox, Spinosa and Logan drove onto a tract of land being farmed and leased by Cox's brother, whom Randy Cox was helping with the operation.
Judge John W. Whitten, III, with the assistance of several friends, stopped at gun point the vehicle in which Cox, Spinosa and Logan were riding. Not only was Judge Whitten armed with a loaded pistol but so were his friends who assisted him.
Judge Whitten stopped the vehicle on his neighbor's property, in which he admits to having no lawful interest. Judge Whitten avers some form of easement in an alleged landing strip which is on the neighbor's property.
Judge Whitten fired several shots to stop the vehicle in which Cox, Spinosa and Logan were riding. The direction in which said shots were fired by Judge Whitten remains in dispute. The panel did find, however, by Judge Whitten's own testimony, that he did in fact eventually shoot out a tire on the vehicle causing it to come to a stop.
After the vehicle was stopped, Cox, Spinosa and Logan were removed from the vehicle at gunpoint and under Judge Whitten's specific orders and demand.
Judge Whitten, not recognizing any of the complainants after they were removed from the vehicle, ordered them on the ground. The orders again were under threat of loaded weapons, which both Judge Whitten and his associates were carrying. The complainants were detained for an undetermined period of time, and Judge Whitten made threats of serious bodily harm and possible death while he made inquiry concerning their identities While on the ground, handcuffs were placed on the complainant, Cox, by order of Judge Whitten, who continued his inquiry under threat of bodily harm with his loaded weapon in hand.
and reasons for being on his neighbor's property and his alleged air field or landing strip.
The three complainants were then escorted, under armed guard, from the property where they had been stopped, across the road on to Judge Whitten's private property where he keeps some form of camp and firing range. There the complainants reached an agreement with Judge Whitten to leave the premises if no one would file any charges against Judge Whitten for the so-called misunderstanding which had occurred.
During the entire incident described, Judge Whitten acted as if in charge. He was giving orders and commands to his associates and orders to the complainants, while holding a loaded pistol which he discharged numerous times, including shooting out the tire on Cox's vehicle.
All of the above actions were directed by Judge Whitten under threat of loaded weapons and with the use of handcuffs and the assistance of associates who also carried loaded weapons and acted under Judge Whitten's command.
It is disputed whether any of the weapons were actually aimed at the three complainants or fired in their direction, but there is no dispute that the weapons were present and some were fired.
The appropriate standard of review for a judicial disciplinary proceeding was stated by this Court in Comm'n on Jud. Perf. v. Gunn, 614 So.2d 387 (Miss.1993):
This Court conducts de novo review of judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Mississippi Judicial Performance Commission. Mississippi Judicial Performance Commission v. Peyton, 555 So.2d 1036 (Miss.1990); In re Collins, 524 So.2d 553 (Miss.1987); In Re Inquiry Concerning Garner, 466 So.2d 884 (Miss.1985); In Re Brown, 458 So.2d 681 (Miss.1984). Although this Court considers the recommendations of the Commission, we are in no way bound by them and may also impose additional sanctions. Mississippi Judicial Performance Commission v. Peyton, 555 So.2d 1036 (Miss.1990); In re Collins, 524 So.2d 553 (Miss.1987).
Rule 10(E) of the Rules of the Mississippi Commission on Judicial Performance provides further guidance:
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.
Although this Court is not bound by the Commission's findings, they are given great deference when based on clear and convincing evidence. Miss. Comm'n on Jud. Perf. v. Chinn, 611 So.2d 849, 850 (Miss.1992) (citing Miss. Jud. Perf. Comm'n v. Hopkins, 590 So.2d 857 (Miss.1991)).
The foundation for the Commission's recommendation is derived from Section 177A, Mississippi Constitution of 1890, as amended and Canons 1 and 2A of the Mississippi Code of Judicial Conduct. Article 6, Section 177A provides that:
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: ... (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; ... or (e) conduct prejudicial to the administration The Mississippi Code of Judicial Conduct provides in part:
of justice which brings the judicial office to disrepute....
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
A Judge Should Avoid Impropriety and the Appearance of
A. A judge should respect and comply with the law and should conduct himself at all times...
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