Mississippi Judicial Performance Com'n v. Walker

Decision Date27 June 1990
Docket NumberNo. 90-CC-0026,90-CC-0026
Citation565 So.2d 1117
PartiesMISSISSIPPI JUDICIAL PERFORMANCE COMMISSION v. George W. WALKER, Justice Court Judge.
CourtMississippi Supreme Court

Luther T. Brantley, III, Jackson, for petitioner.

Isaac K. Byrd, Jr., Byrd & Associates, Jackson, for respondent.

EN BANC.

DAN M. LEE, Presiding Justice, for the Court:

I.

On January 26, 1989, Julian Ferguson 1(Julian) appeared before Hinds County Justice Court Judge George W. Walker (Judge Walker) at the Hinds County Justice Court Building to prosecute his Motion against Constable George Thomas for failure to execute a judgment. At the close of evidence, Judge Walker dismissed the Motion and Julian made the following statement: "Your honor, you do know that I have the right to appeal this case before the Judicial Performance Committee." Judge Walker promptly found Julian in contempt of court, had him arrested and placed in jail, without bond, for 24 hours.

Pursuant to a complaint filed by Julian, a formal complaint was lodged against Judge Walker June 13, 1989. He was charged with abuse of the contempt powers, violations of Canons 1, 2 A, 2 B, 3 A(1), 3 A(2), 3 A(3) and 3 A(4) of the Code of Judicial Conduct of Mississippi Judges, and violation of Section 177A of the Mississippi Constitution of 1890.

Judge Walker answered, admitted the fact of the contempt citation, but stated that such a finding on his part was justified because of Julian's "complete and utter contempt for the Court and its process" as a result of his statement "you niggers stick together"; Judge Walker stated he did not recall the statement regarding the right to appeal. Further, Judge Walker stated that "even assuming the validity of plaintiff's allegation" his actions did not violate any section of the Code of Judicial Conduct or the Mississippi Constitution because "such an announcement of a right to appeal when made to the judge at the bench, in open court, in a manner or demeanor such as that assumed by plaintiff which was calculated to intimidate, embarrass or castigate the Court, and serving no other purpose in itself, constitutes contempt of court."

A formal hearing into the matter was conducted before a Factfinder duly appointed by the Commission. The Factfinder found that Judge Walker had abused his contempt powers. Judge Walker filed Objections to the findings and recommendations of the Fact Finder.

The Commission filed its Findings of Fact and Recommendation, a copy of which is attached as Appendix "A". The Commission found, by clear and convincing evidence, that Judge Walker's actions violated Canons 1, 2 A, 2 B, 3 A(1), 3 A(2), 3 A(3) and 3 A(4) of the Code of Judicial Conduct of Mississippi Judges and constituted willful misconduct in office 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, as defined by the Mississippi Supreme Court. The Commission unanimously recommended public reprimand.

We find that Judge Walker's actions constitute willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Art. 6 Sec. 177A of the Mississippi Constitution of 1890, and impose the sanction of public reprimand.

II.

A.

This Court acts as the factfinder in judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, and 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). However, this Court is not bound by the recommendations of the Commission and may impose additional sanctions. Mississippi Judicial Performance Commission v. Peyton, 555 So.2d 1036 (Miss.1990); In re Collins, 524 So.2d 553 (Miss.1987).

This case concerns a serious allegation: abuse of the contempt powers. For that reason, a full recitation of the facts is warranted.

B.

Julian Ferguson is the owner of an advertising specialty business known as Ferguson Company. In November of 1986, Ferguson Company sold calendars for $281.79 to Billy Allen, d/b/a E & M Florist. On April 16, 1987, after payment was not forthcoming, Julian filed suit against E & M Florist and Billy Allen in the Justice Court of Hinds County, Mississippi. A default judgment was entered against E & M Florist April 30, 1987; Judge Walker granted the default.

Julian filed a garnishment against Billy Allen September 14, 1987. The garnishment was unsuccessful. On May 31, 1988, Julian filed an execution for 10 candelabra against E & M Florist.

The execution was not completed, and on October 31, 1988, Julian filed a Motion against Constable Thomas for failure to execute and return. Thereafter, Constable Thomas delivered two (2) candelabra in the Justice Court. Constable Thomas represented that the items were two (2) spiral candelabra worth $440.00. Julian had the candelabra appraised at United Wholesale Florist, who reported that the items were not spiral candelabra and were not worth $440.00. Based on this information, Julian filed a motion for deficient execution against Constable Thomas for eight (8) additional candelabras with the Hinds County Justice Court on November 16, 1988.

Julian's Motion against Constable Thomas was heard January 26, 1989, by Judge Walker at the North State Street location of the Hinds County Justice Court. The hearing lasted approximately two (2) hours. The following is an account of the events occurring during the hearing in question, taken from the testimony of four (4) witnesses offered by the Commission and the testimony of Judge Walker.

The January 16, 1989, hearing began approximately 9:30 a.m. In addition to Judge Walker, the Plaintiff, Julian Ferguson, and the Defendant, Constable Thomas, the following persons were also present: Shelva King, Deputy Clerk of the Hinds County Justice Court, who sat next to Judge Walker; Joe Ferguson, Julian's brother, who sat at the back of the courtroom with Billy Knight, Julian's cousin; and Constables John Brown and Dan Jordan. Attorney John Gregg was in and out of the courtroom for the final hour of the hearing and was present when the events giving rise to this case occurred. Neither Julian nor Constable Thomas were represented by counsel, nor did they offer testimony other than their own.

Julian testified uninterrupted. When Constable Thomas offered his testimony, he was interrupted several times by Julian. Julian also argued with Judge Walker on several occasions, for which he was reprimanded and threatened with contempt of court on one or more occasions. The arguments by Julian concerned Judge Walker's inquiries into the facts of the underlying default judgment: Judge Walker did not remember granting the default judgment and Julian maintained that the underlying facts were irrelevant to the case before the court. There was contradictory testimony regarding whether Julian was loud during the hearing.

According to Julian, at the close of testimony Judge Walker took a 5-10 minute recess and left the courtroom. Judge Walker denies taking a recess.

Judge Walker rendered his decision in favor of Constable Thomas and dismissed Julian's motion. Immediately after the pronouncement of the decision, Julian, admittedly irritated with the ruling, made the following remark: "Your Honor, you know I do have the right to appeal this to the Judicial Performance Commission." Witnesses for the Commission testified that they heard this statement and that Julian was standing at the witness table when the statement was made, a distance of 5 1/2 to 7 feet away from Judge Walker. Julian was immediately found in contempt of court, handcuffed and taken to jail for 24 hours.

Judge Walker denied hearing the statement regarding the right to appeal. He testified that Julian was standing at the bench and the two men were face-to-face and eye-to-eye when the ruling was announced. He testified that after the ruling Julian leaned over the bench and, in a very low voice, said, "You niggers stick together." Julian denied making this racial statement; no other witness heard the racial statement or saw Julian lean over the bench.

Judge Walker testified that he found Julian in contempt on the basis of the racial slur. He also testified that he would have found Julian in contempt absent the racial remark because he, Judge Walker, felt that Julian was picking on him and "messing" with his mentality as a judge, trying to make him look bad, trying to take advantage of him and/or trying to show him up. Judge Walker testified that of the 15,000 to 17,000 cases he had heard in his 10 years as a Justice Court Judge, he had never found a litigant in contempt for announcing their right to appeal because, unlike Julian, they were nice in stating their rights.

After Julian was taken to jail, Judge Walker called Julian's brother, Joe Ferguson, into chambers. The two men talked for about five minutes. During this conversation, Joe asked if an apology would be satisfactory, to which Judge Walker replied no, because Julian had been disrespectful to the court. Judge Walker testified that he did not mention the racial slur to Joe during their conversation, nor did he tell his court clerk about the remark.

While in chambers, the two men also discussed the case. According to Joe, Judge Walker said he was going to change his ruling based on their conversation, reconvened court with Constable Thomas present, announced his change of decision and said that a written opinion would be forthcoming within five (5) days. Although no such opinion appears in the record, Julian collected the balance owed on the default of March 7, 1989.

Julian filed a complaint with the Commission based solely on his being placed in...

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