MS Com'n on Judicial Perf. v. Wilkerson

• Decision Date: 01 July 2004
• Docket Number: No. 2002-JP-02105-SCT.,2002-JP-02105-SCT.
• Citation: 876 So.2d 1006
• Parties: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Connie Glen WILKERSON.
• Court: Mississippi Supreme Court

876 So.2d 1006

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Connie Glen WILKERSON.

No. 2002-JP-02105-SCT.

Supreme Court of Mississippi.

July 1, 2004.

Luther T. Brantley, III, attorney for appellant.

Stephen Crampton, Michael J. Deprimo, Tupelo, attorneys for appellee.

EN BANC.

DICKINSON, Justice, for the Court.

¶ 1. In the case before us, the Mississippi Commission on Judicial Performance asks us to sanction a judge for his extra-judicial public statements of his views on the rights of gays and lesbians. We decline to do so and dismiss the Commission's complaint. This is a case of first impression.

FACTS

¶ 2. After reading an article about certain states which have chosen to extend to homosexual partners the same right to sue previously reserved for spouses and family members, George County Justice Court Judge Connie Glen Wilkerson felt compelled to make known his disagreement with those states, and his views on homosexuality in general. The judge sent a letter to the editor of his local weekly newspaper, The George County Times, which he signed "Connie Glenn Wilkerson" and stamped "Bro. Connie G. Wilkerson." The letter provided his home address and telephone number, and provided no reference to his official capacity as a judge.

¶ 3. Declaring that his views were based on his Christian beliefs, and upon Biblical principles, the judge opined that homosexuals belong in mental institutions. The letter was published on March 28, 2002.

¶ 4. On April 9, 2002, a reporter from a radio network called the judge at home to discuss the letter. The judge contends that the reporter encouraged him to repeat his views on the legislation and homosexuality and that the conversation was aired without his permission.

¶ 5. In the interview he referred to homosexuality as an "illness" which merited treatment, rather than punishment. He faults the radio network for airing the recorded statements which the radio station "unfairly interspersed" with comments from known homosexual activists.

¶ 6. In response to a complaint filed by Lambda Legal, the Mississippi Commission on Judicial Performance charged the Judge with:

1. "willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute," in violation of Article 6, § 177A of the Mississippi Constitution of 1890;

2. breach of Canons 1, 2A, 3A(1), 4A and 5A of the Code of Judicial Conduct of Mississippi (hereinafter the "Code") for his conduct in writing the letter; and

3. violation of Canons 1, 2A, 3B(2), (5) and (9) and 4A and 4B of the Code.

¶ 7. The sole issue before us is whether the judge's right to send the letter and make the statements are protected by the First Amendment to the United States Constitution.¹

¶ 8. To be sure, we affirm our reverence for the judicial oath of office and the Canons which govern judicial conduct. This certainly includes Canon 4A(1), which requires judges to "conduct all extra-judicial activities so that they do not cast doubt on the judge's capacity to act impartially as a judge."

¶ 9. Today's decision does not void, amend or diminish any of the Canons found in our Code of Judicial Conduct, nor does it bring into question the validity of any of our firmly held beliefs regarding a judge's obligation to foster respect for, and bring honor to, the judiciary and to the legal profession, generally.

¶ 10. Nevertheless, because we are convinced that the statements made by the judge in this case constitute religious and political/public issue speech specially protected by the First Amendment and because we are further persuaded that in some cases (including the case sub judice), forced concealment of views on political/public issues serves to further no compelling governmental, public or judicial interest, we are compelled to reject the recommendation of the Commission and hold that — under the particular facts of this case — sanctions are constitutionally impermissible.

ANALYSIS

¶ 11. Article 6, Section 177A of the Mississippi Constitution charges the Commission with the responsibility of making recommendations to the Supreme Court for discipline of judges, including public censure. In practice, the Commission investigates complaints filed against judges, and makes its recommendations to the Supreme Court in the form of a findings of fact, conclusions of law, and recommendations.

¶ 12. According to the Commission Findings of Fact, Conclusions of Law and Recommendation in this case, the offending statement attributed to the judge was contained in a letter to the editor of The George County Times. The letter stated, in part:

... the California legislature enacted a law granting gay partners the same right to sue as spouses or family members.... In my opinion, gays and lesbians should be put in some type of mental institute instead of having a law like this passed for them....

¶ 13. This statement, according to the Commission, violates Canon 4(A)(1) and, therefore, constitutes "willful misconduct in office" and "conduct prejudicial to the administration of justice which brings the judicial office into disrepute."

¶ 14. The rules (or Canons) of conduct which govern judges in Mississippi are found in the Mississippi Code of Judicial Conduct ("MCJC"). On April 4, 2002, This Court revised the MCJC, replacing the previous code which had been in effect since 1995. According to the Commission's Findings, the judge in this case "wrote a letter and sent same to the editor of The George County Times newspaper which was published on March 28, 2002." Thus, the letter complained of predates the promulgation of Canon 4(A)(1), and is not subject to it. Nevertheless, the Commission found that the judge "violated Canon 4(A)(1) in allowing his extra-judicial conduct to cast a reasonable doubt on the judge's capacity to act impartially as a judge."

¶ 15. One might think that, since the judge's letter was not subject to review under Canon 4(A)(1), the inquiry concerning the letter should now end. However, this Court is the ultimate trier of fact, and is charged with the obligation to conduct an independent inquiry in judicial misconduct proceedings. Miss. Comm'n on Judicial Performance v. Fletcher, 686 So.2d 1075, 1078 (Miss.1996).² In fulfilling that responsibility, this Court must determine whether the judge's statements in the letter and subsequent interview with a reporter, violated the Canons, irrespective of the Commission's Findings.

¶ 16. On March 28, 2002 (the date the letter was published), the only Canon which would apply to the statement in the letter was Canon 2(A) of the Code provided:

A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

¶ 17. In its complaint against the judge, the Commission charges a violation of this Canon. Therefore, the statement in the letter should be analyzed under this previous Canon.

¶ 18. On April 4, 2002, new Canons (including Canon 4(A)(1)) were adopted and became applicable. Shortly thereafter, the judge repeated the statement in an interview on public radio. Thus, the radio interview should be analyzed under Canon 4(A)(1). However, since both canons must be analyzed under the "strict scrutiny" test as discussed supra, we will make no distinction, and refer to both canons as the "Canon."

THE CONSTITUTIONAL ISSUES

¶ 19. The Canons which guide the conduct of our judges are a necessary and critical part of our judicial system. Disregard for the Canons leads inexorably to disrespect for the judiciary. We regard as a primary obligation of this Court the vigilant promotion of judicial ethics, which can only be accomplished by strict enforcement of the Canons. However, this Court clearly may not impose sanctions for violation of a Canon where doing so would infringe on rights guaranteed under the First Amendment, including the freedom of speech. ¶ Clearly, the government may — in certain circumstances — restrict the freedom of speech. When it proposes to do so, however, it must have a good reason. There are several different classifications of speech which, because of their various levels of importance to society, enjoy different levels of constitutional protection. As the levels of importance increase, the government's burden to justify the restriction becomes more difficult. For instance, "commercial speech," which usually involves advertising products for sale, may not be restricted unless the government can demonstrate a "substantial interest" to be achieved in the regulation. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). The state's burden in meeting the "substantial interest" test for commercial speech is not as difficult as the "compelling state interest" test required for political/public issue, or religious speech.

Political/Public Issue Speech.

¶ 20. The United States Supreme Court has held and "frequently reaffirmed that speech on political views and public issues occupies the `highest rung of the hierarchy of First Amendment values,' and is entitled to special protection." Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983) (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 3425, 73 L.Ed.2d 1215 (1982); Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980)).

¶ 21. Where the government seeks to restrain political/public issue speech, it must withstand "strict scrutiny," which requires the government to demonstrate that the restraint "is (1) narrowly tailored to serve (2) a compelling state interest." Republican Party of Minnesota v. White, 536 U.S. 765, 774-75, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (emphasis added). A prior restraint is narrowly tailored where "it does not `unnecessarily circumscrib[e] protected expression'." Id. (quoting Brown v....