MS Jud Perf Comm vs. Frank A. Russell
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 96-CC-00507-SCT
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
v.
FRANK A. RUSSELL
ON PETITION FOR WRIT OF EXTRAORDINARY RELIEF
DATE OF JUDGMENT:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
05/10/96
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
LUTHER T. BRANTLEY, III
JIM WAIDE
CIVIL - JUDICIAL PERFORMANCE
GRANTED - 12/3/98
EN BANC.
SMITH, JUSTICE, FOR THE COURT:
¶1. This case comes before the Court as a result of this Court's decision in Mississippi Commission on
Judicial Performance v. Russell, 691 So.2d 929 (Miss. 1997). The Commission requests by petition
for extraordinary relief that this Court determine what charges may be included as costs to be charged to
Judge Frank A. Russell as a result of these proceedings. After consideration of the Commission's request
and the response of Judge Russell we find that the Petition for Writ of Extraordinary Relief should be
granted, and the costs as determined and assessed by the Commission are endorsed by this Court.
I.
¶2. This Court's decision in Mississippi Commission on Judicial Performance v. Russell was handed
down on February 6, 1997. The effect of this Court's decision was delayed until the disposition of Judge
Russell's Motion for Rehearing. By order of April 15, 1997, this Court finalized the sanction of $1500.00
and a public reprimand. The order included the specific directive: "All costs are assessed against Frank
Russell." This Court's mandate of May 5, 1997, stated: "Russell is taxed with all costs of this appeal." The
costs subsequently submitted by the Commission included $100.00 for the Supreme Court Fee; $2,559.50
for Transcripts; and $887.74 for Travel Expenses for Committee Members, for a total of $3,547.24. Judge
Russell paid the $100 court fee but subsequently informed the Commission that he disputed any of the other
expenses as being properly assessed as costs.
¶3. By letter dated July 21, 1997, the Commission attempted to have this Court's mandate enrolled as a
judgement in the Hinds County Circuit Court. In response Judge Russell filed a Motion to Strike Enrollment
of Judgment in the circuit court. By order dated June 26, 1998, the circuit court took the matter under
advisement, finding that there had been no judicial determination of the specific amount of costs to be
awarded against Judge Russell, and that any judicial determination would have to be made by this Court.
On July 15, 1998, the Commission filed its Petition for Extraordinary Relief with this Court, asking that a
determination be made concerning the propriety of the costs as alleged. Judge Russell has filed his
response.
II.
¶4. Rule 10(E) of the Rules of the Commission on Judicial Performance states:
E. Decision. Based upon a review of the entire record, the Supreme Court shall prepare and publish
a written opinion and judgment directing such disciplinary action, if any, as it finds just and proper.
The Supreme Court may accept, reject, or modify, in whole or in part, the findings and
recommendation of the Commission. In the event that more than one (1) recommendation for
discipline of the judge is filed, the Supreme Court may render a single decision or impose a single
sanction with respect to all recommendations.
This Court has consistently assessed the costs of a formal hearing before the Commission on Judicial
Performance to the judge who is the object of the hearing. See Mississippi Comm'n on Judicial
Performance v. Whitten, 687 So.2d 744 (Miss. 1997); Mississippi Comm'n on Judicial
Performance v. Franklin, 704 So.2d 89 (Miss. 1997); Mississippi Comm'n on Judicial
Performance v. Sanders, 708 So.2d 866 (Miss. 1998); and Mississippi Comm'n on Judicial
Performance v. Guest, 717 So.2d 325 (Miss. 1998). In each of these cases the Chairman of the
Commission included as part of the record a Certificate of Costs, including such items as the Supreme
Court fee, transcript costs, travel expenses for Commission members, witness fees and fees for serving
subpoenas. Also, in each case the Commission made a recommendation of sanctions to this Court, and has
further recommended that the judge in question be assessed costs. In Franklin and Sanders this Court's
mandate stated that the judge in question was "taxed with all costs of this appeal." This is a misnomer, as
this Court's final disposition of a case originating before the Commission is not an appeal. In Guest, this
Court specified in its mandate the amount of the costs assessed to Judge Guest as being $839.65. While we
did not specify the amount of costs assessed to Judge Russell in our mandate in this case, a Certificate of
Costs in the amount of $3,547.24 from the Chairman of the Commission was included in the record of this
case; the Commission, in addition to its recommendation for sanctions, asked for an assessment of costs
against Judge Russell. We find that an assessment of such costs is within the discretion of this Court, is in
keeping with the 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 the incurring
of the costs. The Petition for Writ of Extraordinary Relief filed by the Mississippi Commission on Judicial
Performance is granted. Judge Frank A. Russell is assessed costs in the amount of $3,547.24, as certified
by the Chairman of the Commission.
¶5. PETITION FOR WRIT OF EXTRAORDINARY RELIEF GRANTED. FRANK A.
RUSSELL IS ASSESSED THE COSTS IN THE AMOUNT OF $3,547.24.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS AND WALLER, JJ., CONCUR.
McRAE, ROBERTS AND MILLS, JJ., NOT PARTICIPATING.
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