Mississippi Commission on Judicial Performance v. Willard, 2000-JP-01163-SCT.

• Citation: 788 So.2d 736
• Decision Date: 14 June 2001
• Docket Number: No. 2000-JP-01163-SCT.,2000-JP-01163-SCT.
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Ellis WILLARD.
• Court: United States State Supreme Court of Mississippi

788 So.2d 736

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE
v.
Ellis WILLARD

No. 2000-JP-01163-SCT.

Supreme Court of Mississippi.

June 14, 2001.

788 So.2d 738

Luther T. Brantley, III, Irene Mikell Buckley, Attorneys for Appellant

Arnold D. Dyre, Jackson, Brian Austin Hinton, Columbus, Attorneys for Appellee.

EN BANC.

COBB, Justice, for the Court:

¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed a formal complaint charging Sharkey County Justice Court Judge Ellis Willard with judicial misconduct. The formal complaint was twice amended by the Commission without objection from Willard. The complaint consists of 31 counts of alleged misconduct. After investigation, a panel of Commission members conducted a hearing and concluded there was judicial misconduct, proven by clear and convincing evidence, on 24 of the counts. The panel submitted its Committee Findings of Fact and Recommendation to the full Commission, which voted unanimously to accept the Committee's report. The Commission then recommended to this Court that Willard be removed from office and taxed with all costs accrued in this matter, in the amount of $9,084.66. It also recommended suspending Willard from judicial office pending the outcome of this proceeding. This Court granted the Commission's motion for an interim suspension by order handed down on October 12, 2000.

¶ 2. Having conducted a de novo review of the entire record, this Court accepts and adopts the Commission's findings and recommended sanctions.

FACTS

¶ 3. At all times during the proceedings of the Commission, except the period of time between September 30, 1999, and January 2, 2000, Ellis Willard was sitting as a Justice Court Judge of Sharkey County, Mississippi. The 31 counts of alleged misconduct against Judge Willard were designated during the hearing, and are discussed herein, by the following numbers:

(1) Improperly accepting payment or partial payment of fines payable to the justice court.

(2) Improperly suspending fines for violations of the Implied Consent Law.

(3) Improperly dismissing a DUI charge on his own motion.

(4) Improperly engaging in ex parte communications and improperly dismissing traffic citations for four defendants who did not appear in court.

(5) Improperly dismissing a DUI 2d charge ex parte, on his own motion, without the defendant being present and without any testimony.

(6) Improperly rendering a verdict of not guilty related to a hunting violation.

(7) Improperly engaging in ex parte communications and conducting Justice Court business at his tire and pawn shop.

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(8) Improperly rendering a verdict of not-guilty following ex parte communications.

(9) Dismissed by Commission-improperly engaging in ex parte communications and dismissing a speeding charge following the communication.

(10) Improperly conducting a hearing concerning an alleged violation of probation in which the defendant did not receive notice and was not advised of his due process rights, of his right to an attorney or of his right to remain silent.

(11) Improperly suspending a fine without the authority to do so and without knowledge of the underlying charges.

(12) Improperly utilized a criminal process to collect a civil debt.

(13) Improperly dismissing a criminal conviction and canceling the ordered restitution.

(14) Improperly dismissing a case ex parte.

(15) Improperly contacting a law enforcement officer regarding a criminal case.

(16) Dismissed by Commission—improperly contacting law enforcement officers regarding pending criminal case.

(17) Improperly contacting law enforcement officials during a criminal trial, improperly engaging in other ex parte communications and improperly dismissing criminal charges.

(18) Improperly issuing an arrest warrant for someone who did not actually owe any fines.

(19) Improperly reducing the interest rate in a contract which was the subject of a civil action.

(20) Improperly dismissing a speeding charge in the absence of both the arresting officer and the defendant.

(21) Dismissed by Commission—improperly granting a continuance in a civil case.

(22) Dismissed by Commission—making improper comments regarding court personnel.

(23) Improperly conducting ex parte communications with the defendant regarding citations for hunting violations.

(24) Improperly conducting a contempt hearing where there had been no sworn affidavit or warrant issued.

(25) Improperly issuing a citation for contempt of court without providing the alleged contemner any notice or advising her of her rights.

(26) Dismissed by Commission—Refusing to keep office hours during regular court time.¹

(27) This count was initially the final count and is duplicative of count 31.

(28) Improperly convicting a defendant without creating a file and without notice or hearing.

(29) Improperly sentencing justice court clerk to contempt of court without notice and improperly refusing her repeated requests for an attorney.

(30) Interfering with the administrative functions of the justice court by refusing to allow the justice court clerk or deputy clerk to appear in court when he is conducting court.

(31) Judge Willard's conduct as set forth above violates Section 177A of the Mississippi Constitution of 1890, as amended. The conduct of Judge Willard constitutes willful misconduct in office, willful and persistent failure to perform the duties of his office and conduct prejudicial to the administration of justice

788 So.2d 740

which brings the judicial office into disrepute.

¶ 4. After completion of the Commission's investigation, a three-member panel of the Commission, composed of Chancellor Patricia D. Wise, Richard D. Foxworth and Rankin County Justice Court Judge Billy Ray Mangum, conducted eight days of hearings. After hearing testimony from numerous witnesses, considering the evidence and arguments of counsel, and reviewing all evidence and testimony, the panel filed its Findings of Fact and Recommendations. Twenty-four counts of judicial misconduct were determined by the panel to have been proven by clear and convincing evidence. This Court granted the Commission's motion for an interim suspension by order handed down on October 12, 2000.

¶ 5. The issues before this Court are as follows:

I. WHETHER JUDGE WILLARD'S CONDUCT CONSTITUTES WILLFUL MISCONDUCT IN OFFICE; WILLFUL AND PERSISTENT FAILURE TO PERFORM DUTIES AND CONDUCT 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?

II. WHETHER JUDGE WILLARD SHOULD BE REMOVED FROM OFFICE AND TAXED WITH ALL COSTS OF THIS PROCEEDING PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED?

STANDARD OF REVIEW

¶ 6. The appropriate standard of review used in a judicial disciplinary proceeding is derived from Rule 10(E) of the Rules of the Mississippi 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.

Mississippi Comm'n on Judicial Performance v. Sanders, 708 So.2d 866, 871 (Miss.1998). This Court conducts a de novo review of judicial misconduct proceedings, giving great deference to the recommendations of the Commission. The Commission's findings must be based on clear and convincing evidence. This Court is not bound by the recommendations and must render an independent judgment. Mississippi Comm'n on Judicial Performance v. Spencer, 725 So.2d 171, 174 (Miss.1998) (collecting authorities).

ANALYSIS

I. WHETHER JUDGE WILLARD'S CONDUCT CONSTITUTES WILLFUL MISCONDUCT IN OFFICE; WILLFUL AND PERSISTENT FAILURE TO PERFORM DUTIES AND CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION, AS AMENDED?

¶ 7. Judge Willard contends the use of a three-judge panel by the Commission

788 So.2d 741

taints the Commission's findings. He argues Section 177A of the Mississippi Constitution does not authorize such a panel. Willard objects to the fact that "a majority of the Commission have [sic] never observed a witness, heard or considered testimony, and were [sic] totally dependent upon the recommendation of a minority of the Commission when making the Commission's findings and recommend[ation]...." This Court has previously upheld the use of such a three-member panel by the Commission noting

Rule 8C of the Rules of the Commission, as adopted and approved by this Court, provides: `The formal hearing shall be conducted before the entire Commission, or before a committee of the Commission, a master or a factfinder designated by the Commission.' Spencer's [the Respondent judge's] inquiry was heard by a three member committee of the Commission, duly designated and appointed in accordance with this rule. Consequently, Spencer was not denied due process.

Spencer, 725 So.2d at 175.

¶ 8. Willard also contends that the numerous duties carried out by the Commission's Executive Director "prevent the process from meeting substantive due process and makes it unfair to the respondent judge." However, this Court has previously held that the multiple roles of the Commission as both investigator and prosecutor and "[t]he processes of the Commission do not in and of themselves appear to present an unreasonable risk of bias." Id. at 174-75 (citing Mississippi Comm'n on Judicial Performance v. Russell, 691 So.2d 929 (Miss.1997)). We are not persuaded by Willard's argument.

¶ 9. To analyze...