Commission On Jud. Performance v. Cowart

936 So.2d 343

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Nell Y. COWART.

No. 2006-JP-00211-SCT.

Supreme Court of Mississippi.

August 17, 2006.

Luther T. Brantley, III, attorney for appellant.

Richard C. Fitzpatrick, Poplarville, attorney for appellee.

EN BANC.

EASLEY, Justice, for the Court.

STATEMENT OF THE CASE

¶ 1. On March 24, 2005, the Mississippi Commission on Judicial Performance (Commission) filed a formal complaint against Nell Y. Cowart, Justice Court Judge for the Southeast District of Pearl River County, Mississippi, alleging judicial misconduct which was actionable pursuant to Article 6, Section 177A Mississippi Constitution of 1890, as amended. The Commission later filed an amended complaint on April 5, 2005, adding additional counts. Judge Cowart filed an answer to the amended formal complaint on May 25, 2005. Counsel for the Commission and Judge Cowart entered into an Agreed Statement of Facts and Proposed Recommendation which was filed on January 5, 2006. The Commission unanimously accepted and adopted the Agreed Statement of Facts and Proposed Recommendation on January 5, 2006, and signed the documents on January 27, 2006. The Agreed Statement of Facts and Proposed Recommendation was in lieu of an evidentiary hearing on the facts.

¶ 2. The Commission's Finding of Facts and Recommendation were filed with this Court on February 7, 2006. Specifically, the Commission found that Judge Cowart's conduct violated Canons 1, 2A, 3B(1), 3B(2), 3B(4), 3B(7), 3B(8), 3C(1), and 3E(1) of the Code of Judicial Conduct of Mississippi Judges. The Commission found that Judge Cowart's behavior 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 the Mississippi Constitution of 1890, as amended.

¶ 3. On January 27, 2006, the Commission recommended to this Court that Judge Cowart be publicly reprimanded, suspended from office as Justice Court Judge, Southeast District, Pearl River County, Mississippi, for a period of thirty (30) days without pay, and assessed the costs of this proceeding in the amount of $100.00. A joint motion for approval of recommendations by the Mississippi Commission on Judicial Performance was filed with this Court. On May 24, 2006, the Mississippi Commission on Judicial Performance and Judge Cowart filed a supplementation to the record concerning the six factors this Court considers when determining the appropriateness of judicial sanctions pursuant to In re Baker, 535 So.2d 47, 54 (Miss.1988), and subsequently modified by Miss. Comm'n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004). We adopt the Commission's recommendation of public reprimand, suspension from office for a period of thirty (30) days without pay, and assessment of the costs of the proceeding in the amount of $100.00.

FACTS

¶ 4. According to the Agreed Statement of Facts and Recommendation adopted by the Commission and submitted to this Court, on or about August 31, 2004, Sherrie S. Sibley caused an affidavit to be filed in the Justice Court of Pearl River County, Mississippi, alleging telephone harassment against Sibley's ex-husband, Byron Fendley. On that date, Judge Cowart met with Sibley at the Justice Court office and requested that Sibley relate the details of the incident giving rise to the filing of the affidavit. Sibley explained to Judge Cowart the facts of the case and played telephone tape recordings. Judge Cowart then indicated that she was willing to sign a restraining order against the ex-husband, but she declined to sign a warrant due to her relationship with the ex-husband's family and the fact that she had engaged in ex parte communications with Sibley and listened to the tape recordings. Judge Cowart signed the restraining order and then telephoned another justice court judge and arranged the execution of the warrant.

¶ 5. A notice was allegedly mailed from the Justice Court Clerk's office to Sibley notifying her that the case had been set for hearing on October 7, 2004, at 9:00 a.m. Thereafter, Sibley contacted the Justice Court office advising that she had not received a written Notice of Hearing and stated she was told that a written notice would be sent and that the date of the hearing had been set for October 8, 2004. Having received no written notice, Sibley reported to the Justice Court on October 8, 2004, only to find that Judge Cowart had heard the case on the previous day and dismissed the charges due to Sibley's absence in court. The clerk then telephoned Judge Cowart, and Sibley spoke by phone with Judge Cowart about the court dates. Judge Cowart indicated that the case had been dismissed and that there was nothing Sibley could do to have it reinstated. Thereafter, the prosecutor, Cheryl D. Johnson, filed a Motion to Set Aside Order and Reset for Hearing and Motion for Recusal of Judge citing the failure to provide proper notice to Sibley, Judge Cowart's admitted conflict of interest, and lack of prejudice to the ex-husband. All of the relief requested was denied by Judge Cowart.

¶ 6. On or about November 18, 2004, Shelia P. Varnado was issued traffic citations for no proof of liability insurance and disregard for a traffic device. Thereafter, Judge Cowart approached a justice court employee and asked her to contact the deputy sheriff who issued the tickets and ask him to "help on the tickets." The employee did contact the deputy who refused to dismiss the citations, and Judge Cowart was so advised. Varnado was notified on January 5, 2005, that due to her failure to appear she would have ten days to pay the fines or her driver's license would be suspended.

¶ 7. On February 2, 2005, Judge Cowart again approached the employee and told her that she wanted to pay Varnado's fines. Judge Cowart claims that the money was provided to her by Varnado's father. Judge Cowart submitted the funds to the Justice Court Clerk who receipted them as payment for the Varnado fines. Later that day, Judge Cowart called the clerk's office and asked for the deputy's telephone number. The deputy later called the clerk's office and asked that the tickets be "pulled."

¶ 8. On February 3, 2005, Judge Cowart called the clerk's office and told the clerk that she had spoken with the officer who advised her that he had agreed at the first request that the tickets be pulled. The ticket was dismissed, and Judge Cowart then requested the tickets be pulled and the money refunded. The clerk stated that nothing could be done since the funds for the fines had been received by the clerk's office and receipted. At Judge Cowart's insistence, the clerk pulled the tickets, printed withdrawals, and put them in Judge Cowart's box for her signature.

¶ 9. Thereafter, on February 7, 2005, Judge Cowart entered orders remanding the charges to the files indicating that there was a misunderstanding between the court and the issuing officer, as the officer had recommended that such action be taken.

¶ 10. On November 30, 2003, Cynthia R. Gascon was ticketed by the Mississippi Highway Patrol for speeding. On April 23, 2004, Judge Cowart remanded the charge to the file without requiring Gascon to appear in court and without contacting the issuing officer.

¶ 11. On June 3, 2004, Arthur Miciello, Jr. was issued a violation by the Mississippi Highway Patrol for speeding and an expired car tag. On July 22, 2004, Judge Cowart remanded the charges to the file without requiring Miciello to state his plea and without contacting the issuing officer.

¶ 12. When the issuing officer inquired as to the status of the above charges, Judge Cowart caused them to be reactivated and placed on the docket for hearing.

DISCUSSION

¶ 13. The standard of review for judicial misconduct proceedings is de novo. Miss. Comm'n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000) (citing Miss. Comm'n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993)). The Commission's findings, based on clear and convincing evidence, are given "great deference." Id. This Court however, is obligated to conduct an independent inquiry. Miss. Comm'n on Judicial Performance v. Neal, 774 So.2d 414, 416 (Miss.2000). Even though the Commission's findings are considered, this Court is not bound by the findings, and additional sanctions may be imposed. Miss. Comm'n on Judicial Performance v. Whitten, 687 So.2d 744, 746 (Miss.1997).

I. WHETHER JUDGE COWART'S CONDUCT CONSTITUTES WILLFUL MISCONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION?

¶ 14. In judicial performance proceedings, this Court determines whether the conduct of the Judge constitutes willful misconduct 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.

¶ 15. This Court has held:

Willful misconduct in office is the 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. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of 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 his 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. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner...