Justia.com Opinion Summary: Tunica County Circuit Court Judge Albert B. Smith III acknowledged that he abused his contempt powers and exhibited poor courtroom demeanor in several cases before him from 2006 to 2009. The Mississippi Commission on Judicial Performance recommended the punishment of: a public reprimand, a $1,000 fine, and an assessment of costs totaling $100. Finding that We find that Judge Smith violated Canons 2A, 3B(2), 3B(4), and 3B(8) of the Mississippi Code of Judicial Conduct and, therefore, committed willful misconduct in office and conduct prejudicial to the administration of justice which brought the judicial office into disrepute, the Supreme Court accepted the Commission’s recommendation.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2011-JP-00319-SCT
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
v.
ALBERT B. SMITH, III
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
02/24/2011
HON. H. DAVID CLARK, II
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
JOHN B. TONEY
DARLENE BALLARD
ANDREW W. M. WESTERFIELD
MERRIDA BUDDY COXWELL
CIVIL - JUDICIAL PERFORMANCE
PUBLIC REPRIMAND, FINE, AND
ASSESSMENT OF COSTS - 12/15/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
¶1.
Tunica County Circuit Court Judge Albert B. Smith III acknowledged that he abused
his contempt powers and exhibited poor courtroom demeanor. The Mississippi Commission
on Judicial Performance recommends punishment of a public reprimand, a $1,000 fine, and
an assessment of costs totaling $100. We accept the Commission’s recommendation.
BACKGROUND FACTS AND PROCEEDINGS
¶2.
In 2006, Richard Becton failed to appear at his scheduled arraignment. When he later
appeared and announced that he did not have counsel, Judge Smith responded, “You don’t
take these charges serious [sic] do you?” After appointing counsel to represent Becton,
Judge Smith said: “I would suggest you call [your counsel] ’cause if you are convicted, I’m
going to get you.” And according to the agreed statement of facts, Judge Smith told Becton’s
bail bondsman, Marshall Sanders, to “get on top of getting his people to court at the right
time.” Then, after threatening to hold Sanders in contempt of court when, in future cases,
his clients fail to appear as scheduled, Judge Smith ordered him jailed for a week – but
released him after he had served three days.
¶3.
In 2009, attorney Robert Little represented two clients who appealed their DUI
(driving under the influence) convictions from the Tunica County Justice Court to Judge
Smith’s court. When the first case was called for trial, Little and prosecutor Charles Graves
both announced to Judge Smith that the case was not ready to proceed because the State had
failed to comply with discovery. Judge Smith granted a continuance, set the case for trial,
and admonished counsel to be prepared for trial. He then entered an order requiring the State
to comply with defendant’s discovery requests.
¶4.
The day before the trials of Little’s two clients were to begin, Graves informed the
court administrator that he would be presenting proposed orders of dismissal for both cases,
due to the arresting agency’s failure to provide the videos of his clients’ arrests. The
following day, when Judge Smith called the first case for trial, Little was temporarily out of
the courtroom, but Graves was present. When he attempted to approach the bench to present
an order of dismissal, Judge Smith found both Little and Graves in contempt, imposing a fine
against each and imprisoning Graves for several hours, during which – without having
2
Graves brought into the courtroom – Judge Smith held a hearing on the contempt matter.
Graves appealed Judge Smith’s judgment of contempt against him, and this Court reversed
the judgment, finding that Judge Smith had violated Graves’s due process rights.1
¶5.
In September and October 2009, the Commission formally charged Judge Smith with
willful misconduct in office and conduct prejudicial to the administration of justice. In lieu
of a hearing, the Commission and Judge Smith signed an Agreed Statement of Facts and
Proposed Recommendation. The record – consisting of the agreed factual findings and
clerk’s papers – was filed with this Court without objection.
Judge Smith and the
Commission signed a Joint Motion for Approval of Recommendation, and the Commission
filed a supporting brief.
¶6.
Judge Smith’s brief, while supporting the joint motion, included factual allegations
and assertions that disputed portions of the Agreed Statement and Joint Motion, so the
Commission moved to strike those contradictory portions. Judge Smith responded, arguing
that the parties had an understanding that he could present “mitigating” facts surrounding the
circumstances leading to the contempt orders. Judge Smith also moved to strike the portion
of the Commission’s brief that discussed prior informal actions taken against him.
¶7.
We granted both motions because the post-agreement factual assertions by both
parties were an impermissible attempt to supplement the record already filed with this Court.2
1
Graves v. State, 66 So. 3d. 148 (Miss. 2011).
2
See, e.g., Miss. Comm’n on Judicial Performance v. Dearman, 66 So. 3d 112 (Miss.
2011).
3
ANALYSIS
¶8.
Ordinarily, in reviewing contested judicial misconduct cases, we conduct an
“independent inquiry of the record” and, in doing so, “accord careful consideration to the
findings of fact and recommendations of the Commission, or its committee, which has had
an opportunity to observe the demeanor of the witnesses.” 3 But where, as here, the judge and
Commission agree on the facts, we ordinarily will accept the findings as true.4
¶9.
And in deciding what conduct is sanctionable, and the appropriate punishment for
sanctionable conduct, we look to Article 6, Section 177A of our Constitution:
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 . .
..
3
Miss. Comm’n on Judicial Performance v. Boone, 60 So. 3d 172, 176 (Miss. 2011)
(quoting In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So. 2d 743, 746 (Miss.
1982)).
4
This statement raises concern for Presiding Justice Carlson, but his concern is misplaced.
We announce no new standard of review today. We continue to conduct our own independent
inquiry of the record. But we are unable to find a single case where we have failed to accept agreed
findings of fact as true. Thus, we are justified in our conclusion that we “ordinarily” accept them
as true. But in a particular case in which we do not agree with the agreed facts – should such a case
ever arise – we are certainly free to reject them.
4
Miss. Const. art. 6, § 177A.
¶10.
Section 177A’s prohibition against “conduct prejudicial to the administration of
justice” brings into play the five canons of the Mississippi Code of Judicial Conduct.5 And
we have defined Section 177A’s term “willful misconduct in office” as
“[t]he improper or wrongful use of power of his office by a judge acting
intentionally, or with gross unconcern for his conduct and generally in bad
faith . . . . A specific intent to use the powers of the judicial office to
accomplish a purpose which the judge knew or should have known was
beyond the legitimate exercise of authority constitutes bad faith . . . .Willful
misconduct in office of necessity is conduct prejudicial to the administration
of justice that brings the judicial office into disrepute.” 6
I.
¶11.
Judge Smith’s Violations
According to the Commission’s findings, Judge Smith violated Canons 2A and 3B(4)
by addressing the lawyers and bail bondsman discourteously, that is, without respect and
appropriate judicial temperament; and he violated Canons 2A, 3B(2), 3B(4), and 3B(8) by
wrongly imposing contempt sanctions against two lawyers and a bail bondsman. The
Commission also alleges he violated Canons 2A, 3B(4), and 3B(8) when he told a defendant
“[i]f you’re convicted, I’m gonna get you.” We agree.
¶12.
While I cannot dispute that my friend, Justice Kitchens, has vast experience and a
storied and commendable tenure at the bar, I must say that my own three decades as a lawyer
suggest that one knows a discourteous judge when encountering him or her in the courtroom;
5
Miss. Code of Judicial Conduct pmbl.
6
In re Quick, 553 So. 2d 522, 524-25 (Miss. 1989).
5
and a word or phrase discourteously said in the courtroom may very well not appear – on
paper – to have been said discourteously. But the proof-in-the-pudding in this case is that
Judge Smith agreed his “demeanor during the hearings was confrontational and discourteous
to counsel . . . ,” and we take him at his word.
II.
¶13.
Sanctions
To assist our determination of appropriate sanctions, we have developed six factors
to be applied to the facts of each case: (1) the length and character of the judge’s public
service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and
the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern
of misconduct; (5) whether moral turpitude was involved; and (6) the presence or absence
of mitigating or aggravating circumstances.7
A.
¶14.
Length and Character of Judge’s Public Service
Other than Judge Smith’s eleven-year tenure as a judge, the record is silent regarding
the length and character of his public service.
B.
¶15.
Prior Caselaw
We have made it quite clear that the power granted to judges does not license them
to be disrespectful to the lawyers and citizens who appear in their courtrooms; and that
judges must conduct themselves with appropriate judicial demeanor.
7
Miss. Comm’n on Judicial Performance v. Gibson, 883 So. 2d 1155, 1158 (Miss. 2004),
overruled in part on other grounds by Boone, 60 So. 3d at 177.
6
In re Blake 8
¶16.
In Blake, addressing the trial judge’s protracted display of inappropriate vitriol and
disrespect for one of the lawyers in the case, we stated:
The record provides no justification whatsoever for [the judge’s] animosity
and sarcasm toward [the lawyer]. We recognize and endorse a trial judge’s
duty to control the courtroom, using reasonable measures to efficiently move
matters along and keep over-zealous counsel in check. However, the
professional obligations of dignity, respect and decorum [are] not limited to
counsel. Canon I of the Code of Judicial Conduct states, “A judge should
participate in establishing, maintaining, and enforcing high standards of
conduct, and shall personally observe those standards so that the integrity and
independence of the judiciary will be preserved.” 9
Mississippi Commission on Judicial Performance v. Spencer10
¶17.
We also have said that, in an appropriate case, a judge’s display of inappropriate
judicial temperament may lead to removal from office. In Spencer, we found that the judge
exhibited “outrageous, erratic conduct and hostile demeanor” to those exposed to him, and
we stated that “[e]lected members of the judiciary have a duty to conduct themselves with
respect for those they serve, including the court staff and the litigants that come before
them.” 11 We explained that if “judges do not behave with judicial temperament and perform
8
In re Blake, 912 So. 2d 907 (Miss. 2005).
9
Id. at 914.
10
Miss. Comm’n on Judicial Performance v. Spencer, 725 So. 2d 171 (Miss. 1998).
11
Id. at 178.
7
their duties according to the law. . . there seems little hope that our citizenry at large may
understand and respect the legal process.” 12
Mississippi Commission on Judicial Performance v. Gunter13
¶18.
In Gunter, we cited Municipal Court Judge George Gunter for abusing his contempt
powers when he called a defendant’s mother before the bench and “harshly berated and
humiliated her.” 14 When the mother attempted to speak, Judge Gunter ordered her arrested
for contempt of court.15 Judge Gunter did not send any papers to the detention center but
ordered that the mother be held twenty-four hours without bond.16 Several hours later, he
called the detention center and had her released.17 The Court found that Judge Gunter had
violated the Code of Judicial Conduct and sanctioned him with a public reprimand, $1,500
fine, and costs of the proceedings.18
12
Id.
13
Miss. Comm’n on Judicial Performance v. Gunter, 797 So. 2d 988 (Miss. 2001).
14
Id. at 989.
15
Id.
16
Id. at 990.
17
Id.
18
Id. at 992.
8
Mississippi Commission on Judicial Performance v. Byers19
¶19.
Circuit Court Judge Shirley C. Byers was charged with abuse of contempt powers for
holding a newspaper reporter in contempt after learning the reporter had disobeyed an order
restricting publication of an article about a court proceeding.20 She had the reporter arrested
and brought before her, but no affidavit, show-cause order, or notice of hearing was filed, nor
was the reporter allowed to present any witnesses or evidence.21
¶20.
The Commission charged Byers with six counts of judicial misconduct, including the
abuse-of-contempt charge, and the Court opined that her misuse of contempt powers was
“the most troubling and serious” offense.22 The Court found that Byers had abused her
powers by incorrectly handling the constructive-contempt situation, and it ordered Judge
Byers to be publicly reprimanded and to pay a $1,500 fine and costs amounting to
$2,023.59.23
C.
¶21.
The Magnitude of the Offense and the Harm Suffered
Judge Smith’s failure to adhere to proper procedure when exercising his contempt
power was a serious abuse of power because of the incarceration and threats of incarceration
in the two matters before him. His actions caused a negative impact on Graves and Sanders
19
Miss. Comm’n on Judicial Performance v. Byers, 757 So. 2d 961 (Miss. 2000).
20
Id. at 970.
21
Id.
22
Id.
23
Id. at 973.
9
because of the deprivation of their liberty. A less serious, albeit significant, impact to
Graves, Little, Sanders, and Becton was the abusive and disrespectful behavior to which they
were subjected.
D.
¶22.
Isolated Incident or Pattern of Conduct
The record contains no information or indication that Judge Smith’s behavior in these
two cases was part of a pattern of similar conduct.
E.
¶23.
Moral Turpitude
This Court has defined “moral turpitude” as “includ[ing], but not limited to, actions
which involve interference with the administration of justice, misrepresentation, fraud,
deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” 24
¶24.
This Court expanded the definition to include a violation of “some basic tenets of
daily living in a civil society, such as living by the standards of fundamental decency and
honesty by not abusing the judicial process, and by revering the law and the judicial system,
and upholding the dignity and respect of the judiciary through appropriate conduct and
behavior toward others.” 25 Judge Smith abused the judicial process by incarcerating and
threatening to incarcerate individuals for contempt without providing them basic due process
rights, and his actions constituted moral turpitude.
24
Gibson, 883 So. 2d at 1158 n.2.
25
Miss. Comm’n on Judicial Performance v. Sanford, 941 So. 2d 209, 217 (Miss. 2006).
10
F.
¶25.
Mitigating or Aggravating Circumstances
This Court has held that mitigating circumstances exist when a judge publicly
acknowledges the inappropriateness of the conduct and agrees with the Commission’s
findings.26 We accept Judge Smith’s agreement with the Commission’s findings and the
proposed sanctions in mitigation of his inappropriate conduct. The record includes no
evidence of aggravating circumstances.
Conclusion
¶26.
We find that Judge Smith violated Canons 2A, 3B(2), 3B(4), and 3B(8) of the
Mississippi Code of Judicial Conduct and, therefore, committed willful misconduct in office
and conduct prejudicial to the administration of justice which brings the judicial office into
disrepute, as referenced in Article 6, Section 177A of the Mississippi Constitution. After
reviewing the agreed facts submitted by the Commission and Judge Smith; and after giving
careful consideration to the Commission’s recommendations, we order that Judge Smith be
publicly reprimanded, fined $1,000, and assessed $100 in court costs.
¶27. TUNICA COUNTY CIRCUIT COURT JUDGE ALBERT B. SMITH, III,
SHALL BE PUBLICLY REPRIMANDED, PAY A $1,000 FINE, AND BE ASSESSED
COSTS OF $100. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT
BY THE PRESIDING JUDGE OF THE TUNICA COUNTY CIRCUIT COURT ON
THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY
VENIRE IS PRESENT AFTER THE ISSUANCE OF THIS COURT’S MANDATE,
WITH JUDGE SMITH IN ATTENDANCE.
WALLER, C.J., AND PIERCE, J., CONCUR. CARLSON, P.J., CONCURS IN
PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY
26
Gibson, 883 So. 2d at 1158.
11
KING, J.; RANDOLPH AND KITCHENS, JJ., JOIN THIS OPINION IN PART.
RANDOLPH, J., CONCURS IN PART AND IN RESULT WITH SEPARATE
WRITTEN OPINION JOINED BY LAMAR, J.; KITCHENS AND CHANDLER, JJ.,
JOIN THIS OPINION IN PART. KITCHENS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY CHANDLER, J.; CARLSON, P.J., JOINS THIS
OPINION IN PART.
CARLSON, PRESIDING JUSTICE, CONCURRING IN PART AND IN
RESULT:
¶28.
I join the plurality in finding that Judge Smith abused his contempt powers and
exhibited poor courtroom demeanor.
I write separately, however, because I find the
plurality’s standard of review to be inconsistent with this Court’s precedent.
¶29.
Without citation, the plurality pronounces that “where, as here, the judge and
Commission agree on the facts, we ordinarily will accept the findings as true.” Plur. Op. ¶
8. In his dissent, Justice Kitchens correctly finds that the plurality’s statement is a newlyannounced standard of review and that it is contrary to the well-established standard that this
Court conducts an independent review of the record. Kitchens Op. ¶ 32; see Miss. Comm’n
on Judicial Performance v. Boone, 60 So. 3d 172, 184 (Miss. 2011). I agree with Justice
Kitchens’s analysis of our standard of review in judicial performance cases and take this
opportunity to comment on this Court’s standard.
¶30.
Earlier this year, in Boone, this Court clarified the standard of review in judicial
performance cases and overruled any case that stands for the proposition that this Court does
not conduct an independent review of the record. Boone, 60 So. 3d at 177. Boone cited In
re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So. 2d 743 (Miss. 1982).
Anderson was this Court’s first opportunity to examine Article 6, Section 177A of the
12
Mississippi Constitution of 1890, which states: “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 . . . .”
¶31.
Discussing our responsibilities mandated by Section 177A, Anderson held that this
Court should conduct an independent inquiry of the record in judicial performance cases.
Anderson states:
Therefore, it appears we are required to be a factfinding body, at least to some
degree, in every case of this nature . . . . The power to impose sanctions is
delegated solely to this Court; it therefore follows we have an obligation to
conduct an independent inquiry of the record in order to make our final
determination of the appropriate action to be taken in each case. In so doing,
we will accord careful consideration [to] the findings of fact and
recommendations of the Commission, or its committee, which has had the
opportunity to observe the demeanor of the witnesses.
Anderson, 412 So. 2d 743, 746.
Id. The standard announced in Anderson and affirmed in Boone does not distinguish
between cases with agreed facts and those with contested facts. We apply the same standard
to all judicial performance cases.
¶32.
For the reasons discussed above, I do not join the plurality’s proposition that “where
. . . the judge and Commission agree on the facts, we ordinarily will accept the findings as
true.” Plur. Op. ¶ 8. I do, however, join the plurality’s finding that Judge Smith’s actions
constituted willful misconduct in office and conduct prejudicial to the administration of
justice which brings the judicial office into disrepute, pursuant to Article 6, Section 177A of
13
the Mississippi Constitution of 1890. I also join the plurality’s finding that Judge Smith
should be publicly reprimanded, fined $1,000, and assessed costs of $100.
KING, J., JOINS THIS OPINION. RANDOLPH AND KITCHENS, JJ., JOIN
THIS OPINION IN PART.
RANDOLPH, JUSTICE, CONCURRING IN PART AND IN RESULT:
¶33.
I concur in part and result with the plurality.
¶34.
The plurality properly struck portions of the briefs of both Judge Smith and the
Commission 27 as “impermissible attempt[s] to supplement the record” of proceedings of the
Commission. (Plur. Op. at ¶ 7). I supplement the Plurality’s holding by adding that neither
the Commission nor a judge can enter “an understanding” to present additional facts,
mitigating or otherwise, separate and apart from the record below. (Plur. Op. at ¶ 6). This
Court previously has stated that:
an Agreed Statement of Facts on which the parties submit [a] case for trial is
binding and conclusive on them, and the facts stated are not subject to
subsequent variation. So, the parties will not be permitted to deny the truth of
the facts stated, or the truth, competency or sufficiency of any admission
contained in the Agreed Statement or to maintain a contention contrary to the
Agreed Statement or be heard to claim that there are other facts that the Court
may presume to exist, or to suggest, on appeal, that the facts were other than
stipulated, or that any material fact was omitted.
27
This includes, i.e., Judge Smith’s “factual allegations and assertions that disputed
portions of the Agreed Statement and Joint Motion” and the Commission’s discussion of
“prior informal actions taken against” Judge Smith. (Plur. Op. at ¶ 6).
14
In re Collins, 524 So. 2d 553, 561 (Miss. 1988) (on rehearing) (quoting 83 C.J.S.
Stipulations § 25 (1954)). “Alleged facts,” which are not agreed upon or tested by crossexamination, should not be considered facts at all.
¶35.
Regarding the conflicting opinions on the standard of review, it is clear (and has been
for at least a century or two, or longer) that a court may consider agreed-upon facts, i.e.,
stipulations. I find no fault in the plurality accepting them as true here,28 for an “independent
inquiry of the record” 29 reveals the Agreed Statement of Facts. Accordingly, for purposes
of this case, the disagreement appears to be much ado about nothing, a distinction without
a practical difference.
¶36.
Finally, I reject the plurality’s finding that Judge Smith’s acts involved “moral
turpitude.” (Plur. Op. at ¶ 24). A finding of moral turpitude “must involve some immorality”
and must cross the line “from simple negligence or mistake, to willful conduct which takes
advantage of a judge’s position for greed or other inappropriate motives.” Miss. Comm’n
on Judicial Performance v. Vess, 10 So. 3d 486, 493 (Miss. 2009) (quoting Miss. Comm’n
on Judicial Performance v. Gordon, 955 So. 2d 300, 305 (Miss. 2007)); Miss. Comm’n on
Judicial Performance v. Roberts, 952 So. 2d 934, 942 (Miss. 2007) (emphasis added). I
discern no evidence of deceit, fraud, extortion, trickery, monetary gain or any other indicia
of conduct which involves Judge Smith using his position “for greed or other inappropriate
28
(Plur. Op. at ¶ 8).
29
(Carlson Op. at ¶ 31; (Kitchens Op. at ¶ 38).
15
motives[,]” so as to support a finding of moral turpitude. Vess, 10 So. 3d at 493 (quoting
Gordon, 955 So. 2d at 305). But the absence of moral turpitude does not alter my agreement
with the plurality’s recommended sanction.
¶37.
For these reasons, I respectfully concur in part and in result.
LAMAR, J., JOINS THIS OPINION. KITCHENS AND CHANDLER, JJ.,
JOIN THIS OPINION IN PART.
KITCHENS, JUSTICE, DISSENTING:
¶38.
Today’s plurality opinion announces a new standard of review for judicial
performance cases that reach us via agreed recommendations: This Court no longer will
conduct an “independent inquiry of the record,” but, instead, “where, as here, the judge and
Commission agree on the facts, we ordinarily will accept the findings as true.” Plur. Op. ¶
8. Because I cannot embrace this new standard, and because the agreed facts in the present
case do not provide us a clear factual basis sufficient to support a finding that Judge Smith
engaged in judicial misconduct, I respectfully dissent.30
¶39.
According to our rules, this Court is charged with “prepar[ing] and publish[ing] a
written opinion and judgment directing such disciplinary action, if any, as it finds just and
proper.” Miss. Comm’n on Judicial Performance R.10E. Our opinion and judgment are to
be based on a “review of the entire record,” and this Court may “accept, reject, or modify,
in whole or in part, the findings and recommendation of the Commission.” Miss. Comm’n
30
I join Justice Randolph’s separate opinion to the extent that he finds Judge Smith’s actions
did not involve moral turpitude.
16
on Judicial Performance R.10E. While there may be cases in which this Court “may simply
choose to defer to the Commission,” Mississippi Commission on Judicial Performance v.
Neal, 774 So. 2d 414, 417 (Miss. 2000) (citing In re Bailey, 541 So. 2d 1036, 1040 (Miss.
1989)), it should not be that agreed recommendations ordinarily will receive our automatic
approval, for to do so would be inconsistent with this Court’s duty to make an independent
inquiry of the record before deciding each case. Miss. Comm’n on Judicial Performance
v. Boone, 60 So. 3d 172, 176 (Miss. 2011) (quoting In re Removal of Anderson, 412 So. 2d
743, 746 (Miss. 1982)).
¶40.
In two recent cases, we rejected the Commission’s recommended sanctions of two
justice court judges for their having passed several driving under the influence of alcohol
(DUI) cases to the inactive files upon in-court recommendations of the county prosecuting
attorney. Miss. Comm’n on Judicial Performance v. Little, 72 So. 3d 501 (Miss. 2011);
Miss. Comm’n on Judicial Performance v. McGee, 71 So. 3d 578 (Miss. 2011). We held
that the Commission erroneously had found, and the accused judges had agreed, this practice
to be prohibited by statute, which, we held, it is not. A sentencing trial court judge has the
duty to determine in criminal cases that are resolved by agreement between the prosecution
and the defendant that there is, indeed, a factual basis for the guilty plea, and that the
prosecution’s sentencing recommendation, if any, is within prescribed parameters. Similarly,
we, as the Court with the ultimate responsibility for meting out sanctions in judicial
performance cases, have a solemn obligation to ascertain whether the agreements reached
between the Commission on Judicial Performance and accused judges have sound factual
17
bases, and, if so, whether the conduct which an accused judge admits actually amounts to
violation of Mississippi’s Code of Judicial Conduct.
See Miss. Comm’n on Judicial
Performance v. Sanford, 941 So. 2d 209, 217-18 (Miss. 2006) (holding that a joint
recommendation is “akin to a criminal defendant entering into a plea agreement with the
prosecution, whereby the defendant agrees to plead guilty to the offense in return for the
prosecution’s promise of a specific recommended sentence to the judge for consideration”);
URCCC 8.04 A(3) (“Before the trial court may accept a plea of guilty, the court must
determine that . . . there is a factual basis for the plea.”)
¶41.
In the present case, Judge Smith is being sanctioned for “wrongly imposing contempt
sanctions against two lawyers and a bail bondsman,” for addressing these individuals
“discourteously,” and for telling a defendant, “if you’re convicted, I’m gonna get you.” Plur.
Op. ¶¶ 2, 11. However, based on the agreed facts and the record before us, I would not
accept the Commission’s determination that Judge Smith’s conduct in these regards is
sanctionable.
¶42.
For instance, the plurality does not specify how Judge Smith was discourteous; but
according to the agreed facts, “Canons 2A and 3B(4) were violated when Respondent
addressed counsel and Mr. Sanders discourteously in court by addressing them by their last
names only or as ‘lawyer’ and not extending to those individuals the usual common courtesy
and dignity of addressing them as ‘Mister.’ ” Yet, in writing its own opinion, the plurality
has done the same thing, referring to a litigant, Richard Becton, as “Becton,” to a bail
bondsman, Marshall Sanders, as “Sanders,” to two attorneys, Robert Little and Charles
18
Graves, as “Little” and “Graves,” and to Circuit Court Judge Shirley C. Byers as “Byers.”
A random and cursory perusal of this Court’s decisions over many years reveals that we, as
well as most, if not all, other appellate courts in the United States, routinely refer to litigants,
lawyers, clerks, public officials of all kinds, and other jurists, including members of the
United States Supreme Court, by their surnames only. Likewise, I cannot discern how
referring to counsel as “lawyer” is any more of an insult than referring to the bench as
“judge.” During my long career at the Bar, I deemed it a high honor to be addressed as
“lawyer.”
¶43.
The plurality finds that “the proof-in-the-pudding in this case is that Judge Smith
agreed his ‘demeanor during the hearings was confrontational and discourteous to counsel
. . . ,’ and we take him at his word.” Plur. Op. ¶ 12 (emphasis added). Thus, despite its
protestations to the contrary, the plurality is not conducting its “own independent inquiry of
the record.” Plur. Op. n.4. Moreover, the entire statement in the agreed facts reads as
follows: “Respondent’s demeanor during the hearing was confrontational and discourteous
to counsel as evidenced by the attached transcript and included audio recording.”
(Emphasis added.) The plurality gives no indication that its decision is based on an
independent review of the transcript and recording. Finally, this statement in the agreed facts
refers only to Judge Smith’s interactions with Little and Graves and not Becton.
¶44.
Judge Smith’s other interactions with Defendant Richard Becton are easily understood
and are not at all disturbing to this justice, who practiced law in Mississippi’s criminal courts
for well over forty years. His question to Becton, “You don’t take these charges serious[ly]
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do you?” was addressed to an indictee who appeared for arraignment without an attorney.
This clearly was an effort by the judge to impress on the accused the importance of his
having counsel to attend and represent him in court on a felony charge. There can be no
dispute that Becton needed an attorney. The judge was trying to convince him of the
importance and urgency of obtaining one. It was in this context, and for this purpose, that
the judge continued, “I would suggest you call [your counsel] ’cause if you are convicted,
I’m going to get you.” Rather than an impermissible threat, I view this as a constructive and
emphatic effort on the judge’s part to impress upon Becton the gravity of his situation, and
the certainty that, if he were found guilty, the day would come when he would be brought
before Judge Smith for sentencing. Instead of tip-toeing around the serious matters at hand,
the judge, in no uncertain terms, made it plain to Becton that it was his responsibility to get
in touch with his lawyer in order to have the benefit of the lawyer’s assistance in circuit
court.
In so doing, Judge Smith was fulfilling the duty that this Court imposes on
Mississippi’s circuit judges to be vigilant in helping accused persons understand the
importance of being represented in court by legal counsel. See Patton v. State, 34 So. 3d 563
(Miss. 2010) (reversing criminal conviction because defendant was not warned of the dangers
and disadvantages of self-representation) (citing Faretta v. California, 422 U.S. 806, 807,
95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); URCCC 8.05).
¶45.
Regarding the contempt orders, Judge Smith’s rulings are more akin to a mistake of
law rather than a willful, sanctionable abuse of contempt power. See Miss. Comm’n on
Judicial Performance v. Martin, 921 So. 2d 1258, 1263 (Miss. 2005) (denial of bond not
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sanctionable when judge’s actions were based on honest, yet mistaken, understanding of
constitutional rights). When the county prosecutor appealed his contempt convictions, the
Office of the Attorney General defended Judge Smith, which included the Attorney General’s
filing a petition for writ of certiorari with this Court after the Court of Appeals had reversed
and rendered. Graves v. State, 66 So. 3d 148, 151 (Miss. 2011) (citing Graves v. State, 66
So. 3d 158 (Miss. Ct. App. 2010)). By defending the contempt citations, the Attorney
General – the chief lawyer of this state – recognized that Judge Smith’s actions had an
arguable basis in the law. The law of contempt is not so clear that the justices of this Court
can always agree on such matters. See In re E.K., 20 So. 3d 1216 (Miss. 2009). Indeed, this
Court reviewed the Graves case “to clarify certain aspects of the law of contempt.” Graves,
66 So. 3d at 151. Simply because a judge erred in imposing contempt citations does not
warrant a finding that the judge’s conduct was sanctionable. See e.g., C.K.B. v. Harrison
County Youth Court, 36 So. 3d 1267, 1276 (Miss. 2010) (reversing contempt sanctions
against child, his mother, and his counsel for an alleged violation of the court’s directive in
other, unrelated cases); Brame v. State, 755 So. 2d 1090, 1094 (Miss. 2000) (holding that
attorney’s gross negligence did not rise to the level of willful conduct required to support a
finding of criminal contempt). Because the defense attorney was held in contempt for the
same reasons as the county prosecutor, Judge Smith’s holding the defense attorney in
contempt also fails to warrant a sanction from this Court.
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¶46.
The bail bondsman, Marshall Sanders, was held in contempt in a separate incident,
but the plurality does not explain how Judge Smith’s actions in that instance were improper.
According to the agreed findings of fact:
During the exchange with Mr. Sanders, Respondent threatened Mr. Sanders
with contempt. At one point Mr. Sanders approached a deputy in the presence
of the Respondent, placed his hands behind his back and offered to submit to
arrest. Respondent ordered Mr. Sanders jailed for a week. Mr. Sanders did
not appeal the Respondent’s order. The record does not reflect that Mr.
Sanders requested bond or an attorney. Respondent alleges that he properly
held Mr. Sanders in direct criminal contempt for talking in the courtroom.
Respondent further alleges that, in his opinion, Mr. Sanders’ demeanor,
attitude and gestures were disrespectful to the Court and warranted the use of
the Court’s contempt power.
These findings are supported by the transcript of the proceedings, but neither the record nor
the agreed findings suggests that Judge Smith willfully abused the court’s contempt power.
Accordingly, I cannot agree that Judge Smith’s mistake of law warrants sanctions. Martin,
921 So. 2d at 1263.
¶47.
Because the agreed findings have failed to set forth clearly sanctionable conduct, and
because an independent review of the record reveals none, I would dismiss the joint motion
asking us to approve the recommended sanctions. For the foregoing reasons, I respectfully
dissent.
CHANDLER, J., JOINS THIS OPINION. CARLSON, P.J., JOINS THIS
OPINION IN PART.
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