Mississippi Commission on Judicial Performance v. Brown, No. 2009-JP-02001-SCT (Miss. 6/10/2010)

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MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. JOE M. BROWN

No. 2009-JP-02001-SCT.

Supreme Court of Mississippi.

June 10, 2010.

COURT FROM WHICH APPEALED: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE, TRIAL JUDGE: HON. HENRY L. LACKEY, DATE OF JUDGMENT: 12/17/2009.

DISPOSITION: PUBLIC REPRIMAND; SUSPENSION FROM OFFICE FOR THIRTY (30) DAYS WITHOUT PAY; FINE OF $1,500; AND ASSESSMENT OF COSTS IN THE AMOUNT OF $1,955.20.

ATTORNEYS FOR APPELLANT: DARLENE D. BALLARD, AYANNA BATISTE BUTLER.

ATTORNEY FOR APPELLEE: THOMAS A. WOMBLE.

EN BANC.

CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. The Mississippi Commission on Judicial Performance filed a formal complaint charging Quitman County Second District Justice Court Judge Joe M. Brown with judicial misconduct constituting willful misconduct in office and conduct prejudicial to the administration of justice which brought the office into disrepute, thus causing such conduct to be actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution of 1890, as amended. The Commission's recommendation is now before this Court pursuant to Mississippi Commission on Judicial Performance Rule 10. Although a more detailed procedural history follows below, we state here that this Court has determined the appropriate sanction for Judge Brown is that he be publicly reprimanded, suspended from the office of justice court judge, District Two, Quitman County, for a period of thirty days without pay, fined $1,500, and assessed costs in the sum of $1,955.20.

FACTS AND PROCEEDINGS BEFORE THE COMMISSION

¶ 2. The complaint against Judge Brown stemmed from events that occurred just before noon on February 7, 2008, in the Office of the Justice Court Clerk in Quitman County. In the clerk's office that morning were the complainant in this case, former Deputy Justice Clerk S.W.;¹ Justice Court Clerk Gloria Survillion; Deputy Justice Clerk Lucille Williams; and the Respondent, Judge Brown. S.W. was working at her desk at her computer. Standing to her immediate right was Gloria Survillion. Behind S.W. at the fax machine was Judge Brown.²

¶ 3. After briefly assisting Judge Brown at the fax machine, Williams returned to her desk, which faced S.W.'s desk. According to Survillion's observation, as S.W., who was seated in her chair, leaned forward in the direction of her computer screen, her sweater raised, inadvertently exposing her lower back and posterior. Judge Brown then walked up behind S.W. and exclaimed, "Look a-here! Look a-here!" Judge Brown then licked his finger and slid it across S.W.'s exposed lower back, putting his finger "down in the top of [her] blue jeans," to just above her posterior. Startled, S.W. yelled and leapt from her chair, which rolled backward towards Judge Brown, who stepped back to avoid being hit by the chair. S.W. glared at Judge Brown, and Judge Brown then placed his hands on S.W.'s shoulders and stated, "[S.W.], I'm not going to do you that way anymore."

¶ 4. The testimony of both Williams and Survillion before the three-member Committee (appointed by the Commission) was in accord with S.W.'s testimony concerning the incident. Both of the witnesses testified that S.W. was dressed in proper work attire on that morning. Both of the women likewise testified that the back of S.W.'s chair came to her shoulders and would have shielded everyone in the office from being able to view S.W.'s posterior.

¶ 5. S.W. returned to work the Monday following the incident. She testified before the Committee that Judge Brown came into the office on Monday and apologized to her. According to S.W., while no one else was in the office, Judge Brown came to her desk, apologized and then told her that the reason why he called attention to her exposed skin in the manner in which he did was because an employee with the Mississippi Department of Corrections (MDOC), Mack Cox, had been standing at the public viewing window of the clerk's office and was staring at S.W.'s posterior. Judge Brown was said to have referred to Cox, who is an African-American, with a racial epithet. S.W. testified that, while Cox was often in the clerk's office, given the close proximity of the MDOC office, she did not recall seeing Cox in the justice court office on the morning of February 7, which was the day of the incident.

¶ 6. S.W. testified that the incident on February 7, 2008, was not the first time she had been touched inappropriately by Judge Brown. According to S.W., Judge Brown had touched her one other time while she was bent over the file cabinet. S.W. stated that on that occasion, Judge Brown had touched her on the small of her back by running his finger across her back "above [her] pants line." She admittedly never reported this previous incident.

¶ 7. S.W. and Survillion reported the February 7 incident to Butch Scipper, Quitman County Chancery Clerk and County Administrator. Scipper and Board of Supervisors President Brooks Earnest met with Judge Brown regarding the allegations. Scipper testified that during this meeting, Judge Brown stated that he "punched" S.W. below the shoulder blade to alert her to the fact that her blouse had come up in the back and was exposing her underwear. According to Scipper, Judge Brown stated that his concern for S.W.'s indecency was due to Mack Cox having been present at the public window of the clerk's office and that Cox was "looking down her pants." According to Scipper, during the course of this discussion, Judge Brown used a racial slur in reference to Cox. This fact was disputed by Brooks Earnest, who testified that Judge Brown did not use any derogatory racial term during this meeting.

¶ 8. Judge Brown testified that on February 7, S.W. was not at her desk, but instead, she was bent down over the file cabinet, filing papers.³ Judge Brown testified that S.W.'s "rear end" was exposed while she was bent over at the filing cabinet. According to Judge Brown he said to Lucille Williams, "Lucille, look at this." He then touched S.W. under her shoulder blade. He explained that he was trying to call to S.W.'s attention that her lower posterior was exposed, so that S.W. would pull down her blouse in the back. Judge Brown testified that Mack Cox was present and was staring at S.W.'s exposed backside, but Judge Brown denied using any racially derogatory terms when discussing the incident with S.W. or with Scipper and Brooks. As previously mentioned, the eyewitnesses, Williams and Survillion, disputed this testimony. Furthermore, both women testified that Cox was not present in the office that morning, and even if Cox had been present at the public viewing window, he would not have seen S.W.'s posterior because the back of S.W.'s chair covered her back to her shoulders and would have obscured his view.

¶ 9. Proceedings began with S.W. filing a complaint with the Commission. Following a hearing, the Commission found as follows:

Respondent [Brown's] testimony is not credible. At the time of the incident, there were four people in the office; Survillion, Williams, [S.W.] and Respondent. Although Mack Cox may have been in the office earlier in the day, he was clearly not in the office at the time Respondent touched [S.W.]. Survillion, Williams and [S.W.] all testified to the same events. The uncorroborated testimony of Respondent differed greatly. As noted above, even had Mack Cox been in the public area of the office at that time, he could not have seen [S.W.]'s back from where Respondent stated that Cox was standing. The back of S.W.'s chair came up to her shoulders.

Further, Respondent's testimony that he touched [S.W.]'s bare skin on her back, "just below her shoulder blade" can only be physically possible if the bottom of S.W.'s shirt was at or above the bottom of her shoulder blade. Clearly, based upon the testimony of Survillion, Williams and [S.W.], that did not happen . . . .

As to the allegation that Judge Brown used a racially derogatory term, the Commission noted in its findings of fact that both S.W. and Scipper had testified that Judge Brown, in two separate conversations with each of them, had used this term in reference to Cox when giving his explanation for alerting S.W. to her exposed backside. Moreover, the Commission noted testimony from Jimmy Miller, Quitman County Prosecutor, that Judge Brown had used this same derogatory term in an unrelated, private conversation with him. The Commission further noted in its findings of fact, however, that Miller had never heard Judge Brown use this term in the courtroom, nor did Miller believe any of Judge Brown's decisions to have been formed based on racial bias.

¶ 10. In addition to testifying on his own behalf, Judge Brown called three witnesses. One witness was Miller, who testified that, in his official capacity as county prosecutor, he had never known Judge Brown to render a decision based on "racial animus, prejudice, [or] bias." Charles Johnson, a former constable, testified that he had been in Judge Brown's courtroom on many occasions during his sixteen years of service and that he believed Judge Brown to be a fair judge and had never heard Judge Brown use a racial slur. Sheridan Boyd, a former member of the Board of Supervisors, testified that Judge Brown had never received any complaints before this incident, nor had she ever heard Judge Brown use a racial slur. Moreover, Board of Supervisors President Brooks Earnest's testimony disputed Scipper's testimony in that Earnest said he had never heard Judge Brown use a racial slur during their meeting with Judge Brown. Earnest testified that Scipper did not care for Judge Brown and had not for years. Earnest speculated that the discrepancy between his testimony and Scipper's testimony could be explained by the fact that Scipper could have confused what had been reported to him by Justice Court Clerk Survillion as opposed to what had been reported to him in his meeting with Judge Brown.

¶ 11....