Stewart, In re

• Decision Date: 04 June 1986
• Docket Number: No. 56824,56824
• Citation: 490 So.2d 882
• Parties: In re Inquiry Concerning Judge James A. STEWART.
• Court: Mississippi Supreme Court

Page 882

490 So.2d 882

In re Inquiry Concerning Judge James A. STEWART.

No. 56824.

Supreme Court of Mississippi.

June 4, 1986.

Luther T. Brantley, III, Jackson, for Mississippi Commission on Judicial Performance.

Charles G. Perkins, Perkins, Ferris & Flora, Macon, for James A. Stewart.

Before WALKER, P.J., and PRATHER and ANDERSON, JJ.

PRATHER, Justice, for the Court:

This matter is before the Court on the recommendation of the Mississippi Commission on Judicial Performance that Judge James A. Stewart, Justice Court Judge for Noxubee County, Mississippi be removed from office. Stewart filed no brief to contest the recommendation of the commission, but respectfully requests that the Honorable Court, in rendering its decision, consider the mitigating circumstances in his behalf as shown by the record. This Court accepts the recommendation of the Commission and directs Stewart's removal.

On May 21, 1985, the commission filed a formal complaint against Stewart. The complaint alleged that Stewart, in his official capacity as justice court judge, received and collected criminal fines, penalties, costs and assessments on behalf of Noxubee County, Mississippi, beginning approximately March, 1984 through December, 1984. The respondent failed to report and pay all of said sums to Noxubee County as required by law, which amounted to a deficiency of $1,016.00. In count 1 the commission charged that Stewart had converted to his own use money which came into his hands by virtue of office as justice court judge and had failed to turn over or deliver the money when lawfully required to do so. In count 2 Stewart was accused of failing to keep accurate entries of each sum of public money received and had failed to remit to Noxubee County public money received in his capacity as justice court judge. Count 3 charged Stewart with violations of Canon 1, 2 A, 3 A(1), 3 A(5) and 3 B(1) of the Code of Judicial Conduct of Mississippi Judges. In count 4 Stewart was accused of violating Sec. 177A of the Mississippi Constitution of 1890, as amended and that his conduct constituted willful misconduct in office, willful and persistent failure to perform the duties of the office, and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

Stewart admitted the allegations contained in the commission's complaint but affirmatively stated that his misconduct resulted from his inexperience in handling and receiving money and his being naive and inexperienced in office, all of which led to his altering records to cover his mistakes. Stewart claimed he had no intention to act in a willful manner and convert said funds to his own use but he became totally confused and falsified court records to make his receipts match. Stewart further expressed remorse about the problems which he caused and offered to make full and complete restitution as soon as called upon to do so. Stewart requested that he be allowed to remain in office and agrees to enter into a memorandum of understanding concerning any and all of his future conduct and to submit to any supervision required.

The Mississippi Commission on Judicial Performance found by clear and convincing evidence that the conduct of the respondent, Justice Court Judge James A. Stewart, constitutes willful misconduct in office, willful and persistent failure to perform his duties, and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. It is the recommendation of the Commission On Judicial Performance that the Mississippi Supreme Court remove the respondent, James A. Stewart from office as a justice court judge of Noxubee County in accordance with Sec. 177A of the Mississippi Constitution of 1890.

II.

The constitutional and statutory authority of the Commission on Judicial Performance has been outlined in the case of In re Removal of Lloyd W. Anderson, 412 So.2d 743 (Miss.1982) as follows:

By concurrent resolution passed in 1979, the Legislature submitted to the people a proposed amendment to Article ok of the Mississippi Constitution of 1890 by adding Section 177A, which was ratified by the electorate November 6, 1979, and thereafter became a part of our State Constitution.

Section 177A directs the formation of a Commission on Judicial Performance of this State, ... [and] reads, in part, as

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: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.

* * *

The provisions of Section 177A have been implemented by legislative enactments providing for a commission on judicial performance, the terms of office of its members, authority as to procedures before it, and its administration. Miss.Laws, ch. 511 (1979); Miss.Laws, ch. 385 (1980) (codified at Mississippi Code Annotated Sec. 9-19-1 et seq. (Supp.1981) ).

Mississippi Code Annotated section 9-19-17 provides:

A justice or judge removed by the supreme court or the seven-member tribunal is ineligible for judicial office. ...

A Mississippi Commission on Judicial Performance was duly appointed and constituted. Pursuant to authority granted under Mississippi Code Annotated section 9-19-23 (Supp.1981), the Commission adopted rules implementing the legislative enactment, including rules of practice and procedure before it, which were approved by order of this Court on July 9, 1980. The complete rules of the Commission are recorded in 385 So.2d at XXII-XXXV.

Rule 8D provides:

Facts requiring action of the Commission shall be established by clear and convincing evidence. ...

Rule 8F provides:

The Commission recommendations to the Supreme Court for discipine [sic] may include removal from office, suspension, fine, public censure or reprimand, or retirement. In addition, the Commission may privately admonish a judge as provided by law. ...

The Commission on Judicial Performance found by clear and convincing evidence that respondent's conduct constitutes willful misconduct in office, willful and persistent failure to perform the duties of his office and conduct prejudicial to the administration of justice, which brings the judicial office into disrepute. In a second assignment the commission states that removal from office is the proper sanction for James A. Stewart.

Respondent's only excuse for his deplorable misconduct was ignorance--that he was inexperienced in handling money, became confused and spent public money for his personal expenses. Stewart realized what was happening, but rather than ask for an audit or seek outside help, Stewart admittedly falsified court records to cover his misconduct. He knowingly...