Mississippi Commission on Judicial Performance v. A.L. (Bud) Brown
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 1999-JP-01569-SCT
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
v.
A.L. (BUD) BROWN
DATE OF JUDGMENT:
COURT FROM WHICH
APPEALED:
ATTORNEYS FOR
APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING
FILED:
MANDATE ISSUED:
09/15/1999
COMMISSION ON JUDICIAL PERFORMANCE
LUTHER BRANTLEY, III
IRENE MIKELL BUCKLEY
TAYLOR TUCKER
CIVIL - JUDICIAL PERFORMANCE
PUBLIC REPRIMAND; $500 FINE AND COSTS OF $407.75 06/08/2000
6/29/2000
EN BANC.
McRAE, JUSTICE, FOR THE COURT:
¶1. This matter is before the Court on a recommendation filed by the Mississippi Commission on Judicial
Performance (hereinafter the "Commission") to fine and publicly reprimand A.L. (Bud) Brown, a Winston
County Justice Court Judge. This recommendation is granted, and as such, Judge Brown is publicly
reprimanded and fined $500. This public reprimand shall be forwarded to the Circuit Court of Winston
County to be read in open court on the first day of the next court term by the presiding circuit court judge
with Judge Brown present.
PROCEDURAL HISTORY
¶2. On April 5, 1999, the Commission filed a formal complaint against Judge Brown. The complaint
contained three counts which charged that Judge Brown violated, through willful misconduct in office and
conduct prejudicial to the administration of justice which brings the judicial office into disrepute, Canons 1,
2A, and 2B of the Code of Judicial Conduct of Mississippi Judges, Rule 1.05 of the Uniform Rules of
Justice Court, and Section 177A of the Mississippi Constitution of 1890. The Commission held a hearing
on June 11, 1999, where it determined that Judge Brown had violated these standards of judicial conduct
and recommended that this Court issue him a public reprimand, a $500 fine and order him to pay all costs.
FACTS
¶3. The Commission found by clear and convincing evidence presented at the hearing on June 11, 1999,
that on the November 18, 1994, Judge Brown's son, Alex Brown, Jr., was arrested for DUI. Judge Brown
called the judge assigned to the case, Noxubee County Justice Court Judge Sherlene Boykin, and asked for
her help in getting the DUI dismissed. Judge Brown also contacted the arresting officer, John Harris, on
numerous occasions both before initial trial and throughout his son's appeal.
¶4. Officer Harris testified that on November 18, 1995, he was called to the scene of a one-vehicle
accident. A white pickup was wedged in some bushes off the road. Alex Brown, the driver, was arrested
for DUI. At the station, Alex called his father who asked to speak to Officer Harris. Judge Brown told the
officer that his son had not had anything to drink, and he was coming over. Subsequent to that evening,
Judge Brown called Officer Harris several times inquiring whether there was there any way Harris could
help his son in reference to the DUI.
¶5. Alex Brown was convicted of DUI on March 7, 1995, in the Noxubee County Justice Court. After the
trial was over, Officer Harris alleged that Judge Brown was upset and threatened to kill Harris. Harris
responded "not if I kill you first."
¶6. Mississippi Highway Patrol Master Sergeant Billy Joe Mahaffey testified that after the initial DUI trial,
Judge Brown called him several times to arrange meetings between Judge Brown and Officer Harris.
Mahaffey testified that, "[t]he first one was wanting to get together because they thought there was hard
feelings between him and Officer Harris, that they wanted to have a meeting to iron out their differences . . .
." Mahaffey arranged a second meeting at County Attorney Ricky Walker's office in Macon with Walker,
Harris and Alex Brown's attorney, Jyles Eaves.
¶7. Justice Court Judge Sherlene Boykin testified that prior to Alex Brown's DUI trial Judge Brown called
her several times and that on each occasion mentioned his son's pending DUI trial.
¶8. At the hearing, Judge Brown testified in his own defense. He stated that he received a call that his son
had been arrested for DUI and that he had asked to speak to Harris, the arresting officer. When Harris got
on the line, Judge Brown asked whether his son was hurt. When Harris told him that Alex had some cuts on
him, Judge Brown asked Harris to take Alex to the hospital. When Judge Brown got to the hospital, Officer
Harris had left a message asking to see him, and Judge Brown spoke to Harris. Judge Brown testified that
after that night he had several conversations with Harris to see if he had gotten the results back from the
blood tests. Judge Brown also admitted to speaking with Judge Boykin several times prior to trial. Judge
Brown denied having threatened to kill Harris, but told Harris "if you think I said it, I apologize." Judge
Brown testified that he attended only one meeting with Officer Harris and that was set up by Master
Sergeant Mahaffey. On cross-examination, Judge Brown apologized for his actions but asked for
understanding that he was "acting as a father."
ISSUES
I. DID THE CONDUCT OF A.L. BROWN CONSTITUTE WILLFUL MISCONDUCT IN
OFFICE 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. SHOULD A.L. BROWN BE PUBLICLY REPRIMANDED, FINED $500 AND
ASSESSED THE COSTS OF THIS PROCEEDING BY THE MISSISSIPPI SUPREME
COURT, PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION OF
1890, AS AMENDED?
LAW AND ANALYSIS
I. DID THE CONDUCT OF A.L. BROWN CONSTITUTE WILLFUL MISCONDUCT IN
OFFICE 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?
¶9. Judge Brown was charged with willful misconduct or conduct which would bring the judicial office into
disrepute. This case implicates Canons 1, 2A, and 2B of the Code of Judicial Conduct of Mississippi
Judges, Rule 1.05 of the Uniform Rules of Justice Court, and Section 177A of the Mississippi Constitution
of 1890. It is clear that Judge Brown acted in violation of these judicial standards. Judge Brown admitted to
making calls to both Officer Harris and Judge Boykin. It matters not that he was not acting in his official
capacity when he made the calls. In re Baker, 535 So.2d 47, 50-51(Miss. 1988)( citing In re Kneifl,
351 N.W.2d 693, 695-96 (Neb. 1984) (conduct prejudicial to the administration of justice includes
conduct which would justify a reasonable man in believing that a result reached by a judge was achieved
because of his position and prestige)). "The findings of the Commission must be based upon clear and
convincing evidence." Mississippi Comm'n on Judicial Performance v. Ishee, 627 So.2d 283, 286
(Miss.1993); see also Miss. Comm. on Judicial Performance R. 8 D.
¶10. This Court conducts a de novo review of judicial misconduct proceedings. Although this Court is not
bound by the findings of the Commission, it gives great deference to the decision of the Commission when
those findings are based on clear and convincing evidence. Mississippi Comm'n on Judicial
Performance v. Dodds, 680 So.2d 180, 190 (Miss.1996); Mississippi Judicial Performance
Comm'n v. Peyton, 555 So.2d 1036, 1038 (Miss.1990).
¶11. Judge Brown admitted having made calls to Harris, the arresting officer, Sergeant Mahaffey, Harris's
supervisor, and Judge Boykin, the justice court judge, on behalf of his son. He denied, however, that in
doing so that he was doing anything more than what a concerned father would do. Additionally, he denied
threatening Officer Harris. Notwithstanding Judge Brown's denials of misconduct, his admission that he
contacted these officials with regard to his son's DUI irrefutably supports a finding of misconduct.
¶12. Other jurisdictions have dealt with judges attempting to influence other judges on behalf of family
members. In In re Snow's Case, 674 A.2d 573 (N.H. 1996), a municipal court judge's brother received a
speeding ticket and the judge called the officer who issued the ticket. The committee that heard the judge's
case found that the judge was aware that his telephone call, whether made innocently or not, would result in
preferential treatment of his brother. Thus, the court held, regardless of whether the judge's intentions were
innocent, "the appearance that Judge Snow intervened to obtain favorable treatment from the police for his
brother plainly undermines public confidence in the integrity and impartiality of the judiciary." Id. at 578.
¶13. In In re Del Rio, 256 N.W.2d 727, 744 (Mich. 1977), a judge called an officer into his chambers
and told him that a ticket issued to a friend driving the judge's car was improperly issued. The Court held
that "[t]his sequence of events constituted "ticket-fixing" in clear violation of Canons 1 and 2 of the Code of
Judicial Conduct."Id.
¶14. In In re Judge Santini, 597 A.2d 1388 (N.J. 1991), a municipal court judge was charged with
having telephoned another municipal court judge, a municipal court clerk, and a zoning officer regarding the
case of a former client accused of various zoning violations. The New Jersey Supreme Court ordered the
judge to be publicly reprimanded finding that the judge's actions "would erode the public's confidence in the
integrity and impartiality of the judiciary." Id. at 1392.
¶15. As these cases demonstrate, the Commission's findings of misconduct were not in error and are in fact
supported the clear and convincing evidence of Judge Brown's own admissions.
II. SHOULD A.L. BROWN BE PUBLICLY REPRIMANDED, FINED $500 AND
ASSESSED THE COSTS OF THIS PROCEEDING BY THE MISSISSIPPI SUPREME
COURT, PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION OF
1890, AS AMENDED?
¶16. Judge Brown argues that even if he is guilty of doing that with which the Commission has charged him,
the recommended punishment, a public reprimand, a $500 fine, and costs, is not commensurate with what
has been imposed on other judges.
¶17. The Commission argues that the sanctions recommended are consistent with similar cases brought
before this Court. Public reprimands are serious sanctions and have been given to judges for such things as
altering judgments after an ex parte communication, Mississippi Comm'n on Judicial Performance v.
Underwood, 644 So.2d 458 (Miss. 1994); for refusal by judge to allow a debtor to redeem property, In
re Mullen, 530 So.2d 175 (Miss. 1988); for utilizing criminal process to collect bad checks, In re Judge
Odom, 444 So.2d 835 (Miss. 1984); and failing to keep records and collecting court costs from county
where cases never docketed, In re Lambert, 421 So.2d 1023 (Miss. 1982).
¶18. The conduct engaged in by Judge Brown was serious and warrants sanctions. This Court has clearly
stated several factors to be weighed in determining whether a judge should be publically reprimanded:
1. The length and character of the judge's public service.
2. Positive contributions made by the judge to the courts and the community.
3. The lack of prior judicial precedent on the incident issues.
4. Commitment to fairness and innovative procedural form on the part of the judge.
5. The magnitude of the offense.
6. The number of persons affected.
7. Whether moral turpitude was involved.
In re Baker, 535 So.2d at 54.
¶19. Applying these factors here, Judge Brown has served for nearly twenty years as a Justice Court Judge.
The record does not otherwise reflect Judge Brown's public service or service to the community. Numerous
Mississippi judges have been sanctioned for engaging in ex parte communications and for abuse of the
judicial office. Judge Brown used his judicial position in an attempt to influence the outcome of his son's
case. The number of people affected by Judge Brown's actions include another judge, law enforcement
officers and the future of his own son. There was no evidence adduced regarding Judge Brown's positive
contributions made to the courts and the community or Judge Brown's record to fairness and use of
innovative procedural form. The only mitigation attempted by Judge Brown is an explanation that he was
only acting as a father in doing what he did.
¶20. Based on our assessment of all of the factors, we conclude that a public reprimand is appropriate. In
Mississippi Comm'n on Judicial Performance v. Judge R.R., 732 So.2d 224, 234 (Miss. 1999)(1),
we listed numerous occasions in which this Court has held a public reprimand was warranted by the facts of
the case. Given the facts herein, a public reprimand is consistent with prior penalties issued by this Court in
other cases of judicial misconduct.
¶21. The Commission also requested that Judge Brown be assessed for the costs. This Court recently held
that "an assessment of such costs is in keeping with precedent of this Court and is reasonable where 'the
complaining party is on notice that such costs are being sought and where the behavior of the complaining
party is the reason for incurring of the costs.'" Mississippi Comm'n on Judicial Performance v. A
Municipal Court Judge, No. 199-JP-0135-SCT, 2000 WL 125035 at *4 (Miss. Feb. 3, 1999)(quoting
Mississippi Comm'n on Judicial Performance v. Russell, 724 So.2d 873, 874 (Miss. 1998)). The
Judge was on notice that the Commission requested that costs be assessed against him.
¶22. In accordance with this Court's precedents, we assess costs of $407.75 against Judge Brown.
CONCLUSION
¶23. For these reasons, we hold that, (1) Winston County Justice Court Judge A.L. (Bud) Brown
committed willful judicial misconduct in making ex parte contacts with the judge assigned to his son's DUI
case, in contacting the arresting officer, and in contacting that officer's supervisor, (2) that the appropriate
sanction for Judge Brown is a public reprimand and a fine of $500, and (3) Judge Brown is so reprimanded
and fined. Costs in the amount of $407.75 are taxed to Judge Brown.
¶24. A copy of this opinion shall be forwarded by the clerk of this Court to the Circuit Court of Winston
County with instructions that the presiding circuit court judge read this opinion in open court on the first day
of the next court term with Judge Brown present.
¶25. A.L. (BUD) BROWN, A JUSTICE COURT JUDGE IN WINSTON COUNTY, SHALL BE
PUBLICLY REPRIMANDED, FINED $500, AND ASSESSED WITH TOTAL COSTS OF
$407.75 TO BE PAID WITHIN THIRTY (30) DAYS.
PRATHER, C.J., PITTMAN AND BANKS, P.JJ., MILLS, WALLER, COBB AND DIAZ,
JJ., CONCUR. SMITH, J., NOT PARTICIPATING.
1. In Judge R.R., the Court found that a private reprimand was warranted for a judge's comments to clerk
that the clerk "checked out" all the men that came into office and that clerk also "checked out" the judge.
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