Mississippi Commission on Judicial Performance v. Cecil Cole
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Serial: 130545
IN THE SUPREME COURT OF MISSISSIPPI
No. 2005-JP-02122-SCT
MISSISSIPPI COMMISSION ON
JUDICIAL PERFORMANCE
v.
CECIL COLE
ORDER
¶1.
Before this Court is the Amended Agreed Statement of Facts and Proposed
Recommendation filed October 11, 2005, by the Commission, counsel for Tate County
Justice Court Judge Cecil Cole, and Judge Cole himself. The Agreement proposed sanctions
of a public reprimand and assessed costs in the sum of $100.00.
FACTS
¶2.
On September 5, 2004, Judge Cole’s grandson, Justin G. Shaw, was arrested and
charged with DUI (1 st), careless driving, leaving the scene, and possession of beer. At the
time, Shaw was on probation for accessory after the fact in connection with a murder. On
October 10, 2004, Judge Cole, in his official capacity as Justice Court Judge of Tate County,
entered an order reinstating Shaw’s driver’s license pending the Court’s disposition of the
charges against him. On October 26, 2004, Judge Cole and Tate County Justice Court Judge
Albert Embry, recused themselves from presiding over the charges against Shaw citing
Canon 3E(1)(a) of the Code of Judicial Conduct and Rule 1.10 of the Uniform Rules of
Procedure for Justice Court.
¶3.
Shaw later pled nolo contendere to all charges against him in Tate County Justice
Court before Justice Court Judge James Appleton of Panola county, who was appointed to
hear the case. Shaw’s probation was then revoked on the accessory charge by Judge
Appleton. Judge Cole approached the Tate County Sheriff in an attempt to have Shaw serve
his sentence in the Tate County Adult Detention Facility instead of a state facility. His
efforts were unsuccessful.
STANDARD OF REVIEW
¶4.
While we conduct a de novo review of judicial misconduct proceedings, we give
deference to the recommendations of the Mississippi Commission on Judicial Performance
and their findings when based on clear and convincing evidence. Miss. Comm’n on Judicial
Performance v. Hartzog, 904 So. 2d 981, 984 (Miss. 2004) (citing Miss. Comm’n Judicial
Performance v. Gunn, 614 So. 2d 387, 389 (Miss. 1993)). Because we have the sole power
to impose sanctions for judicial misconduct as the trier of fact, we must render an
independent judgment. Id.
ANALYSIS
¶5.
We now consider the appropriate factors for imposition of sanctions in judicial
misconduct proceedings. Id. at 985 (Miss. 2004) (citing Miss. Comm'n on Judicial
Performance v. Gibson, 883 So. 2d 1155, 1158 (Miss. 2004)).
1. The Length and Character of Judge Cole’s Public Service.
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¶6.
Judge Cole has been in his current position since 2000 and has not been the subject
of disciplinary actions before. See Miss. Comm'n on Judicial Performance v. Williams,
880 So. 2d 343, 347 (Miss. 2004) (finding length and character of service may be considered
as a mitigating factor when determining appropriate judicial sanction).
2. Prior Case Law on Point.
¶7.
We find sanctions like the ones suggested by the Commission to be appropriate in
cases with factually similar circumstances.
In Mississippi Commission on Judicial
Performance v. Brown, 761 So. 2d 182 (Miss. 2002), we held a public reprimand and a fine
of $500 plus court costs were appropriate sanctions for a Winston County Justice Court
judge’s ex parte contacts with an arresting officer, an officer supervisor, and another judge
concerning the DUI case of the justice court judge’s son. We also held, in Mississippi
Commission on Judicial Performance v. Boykin, 763 So. 2d 872 (Miss. 2000), that a public
reprimand and a monetary fine were suitable sanctions for the ticket-fixing of traffic tickets
and holding ex parte communications with defendants by a justice court judge.
3. The Magnitude of the Offense and the Harm Suffered.
¶8.
Judge Cole’s actions in ordering that his grandson’s driver’s license be reinstated
pending the disposition of his grandson’s charges concerning careless driving, leaving the
scene of an accident, possession of beer, and a DUI gave the perception that he was lending
the prestige of his office to advance the private interests of another - in this case a member
of Judge Cole’s family.
Judge Cole inappropriately contacted the Tate County Sheriff
regarding the housing of his grandson in the county jail rather than a state facility.
Additionally, Judge Cole should not have involved himself in any facet of the pending
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matters and should have recused himself from any matters involving a relative. See Brown,
761 So. 2d 182 (finding that attempts by judge to contact officials involved in his son’s DUI
case was inexcusable use of official capacity for personal reasons).
4. Whether the Misconduct is an Isolated Incident or Evidences a Pattern of Conduct.
¶9.
This is an isolated event, and Judge Cole has not evidenced any pattern of troubling
conduct.
5. Whether “Moral Turpitude” was Involved.
¶10.
While there is no specific evidence of any moral turpitude in Judge Cole’s actions, we
recognize the seriousness of any judicial officer abusing their position for personal reasons.
6. The Presence or Absence of Mitigating or Aggravating Circumstances.
¶11.
Concerning any mitigating factors, Judge Cole asserts, without corroboration, that his
contact with the Tate County Sheriff was an attempt to prevent his grandson from being
housed in the same state facility as the individual convicted of murder in the same matter for
which his grandson was convicted of accessory after the fact. Judge Cole contends his
grandson’s testimony led, in part, to the conviction of the murderer.
Judge Cole’s
justifications, however, do not excuse his misconduct.
¶12.
By reinstating Shaw’s license and making attempts to have Shaw placed in a Tate
county detention facility rather than a state facility, Judge Cole violated Canons 1, 2A, 2B,
3B(2), 4(A)1, 4(A)2, and 4(A)3 of the Code of Judicial Conduct of Mississippi.
Additionally, by engaging in conduct constituting willful misconduct in office and conduct
prejudicial to the administration of justice by bringing the judicial office into disrepute, Judge
Cole’s behavior was actionable under § 177A of the Mississippi Constitution of 1890. Judge
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Cole’s conduct is troubling. However, in light of Judge Cole’s actions in cooperating with
the Commission and after considering past precedent, we accept the Commission’s
recommendation.
¶13.
IT IS THEREFORE ORDERED that, effective upon entry of this order, Cecil Cole,
Justice Court Judge of Tate County, shall be publicly reprimanded for his actions in violation
of the Canons of the Code of Judicial Conduct of Mississippi and the Mississippi
Constitution of 1890. The clerk is directed to send a copy of this order to the senior Circuit
Court Judge presiding in Tate County with instructions to read this order in open court with
Judge Cole present on the first Monday of the beginning of the next term of court after
receipt of this order.
¶14.
IT IS FURTHER ORDERED that, Judge Cecil Cole also be assessed costs in the sum
of $100.00.
¶15.
SO ORDERED, this the 7th day of June, 2006.
FOR THE COURT:
/s/ William L. Waller, Jr.
WILLIAM L. WALLER, JR.
PRESIDING JUSTICE
COBB, P.J., DISSENTS. DIAZ, J., NOT PARTICIPATING.
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