author: CARLSON, Justice,

text:
    In the Matter of the GUARDIANSHIP OF Daisy Pearl SAVELL. David C. Dunbar, Esq. and The Law Firm of Dunbarmonroe, PLLC v. Shirley Renfroe and Marguerite Jordan.
    No. 2001-CT-01208-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      David C. Dunbar, Wiley Johnson Barbour, Jackson, attorneys for appellants.

      Hez L. Hollingsworth, attorney for ap-pellees.
   CARLSON, Justice,

for the Court.

¶ 1. Daisy Pearl Saveli executed a durable power of attorney in favor of her two daughters, Shirley Renfroe and Marguerite Jordan. Renfroe and Jordan entered into a contract of employment with Attorney David C. Dunbar to pursue a personal injury claim on Saveli’s behalf. A settlement offer was eventually made on this claim. Saveli’s mental capacity diminished after the power of attorney was executed, and, at the time of the settlement offer, she was no longer of sound mind; therefore, Dunbar petitioned the Scott County Chancery Court for approval of the proposed settlement. Chancellor H. David Clark, II, approved the settlement, but reduced Dunbar’s attorney’s fees from the 40% contingency fee as provided in the contract to a 33 1/3 % contingency fee. Dunbar appealed, and we assigned this case to the Court of Appeals, which in a divided decision affirmed the judgment of the chancery court. In re Savell, 856 So.2d 378 (Miss.Ct.App.2003). Dunbar’s motion for rehearing was denied, and we granted Dunbar’s petition for writ of cer-tiorari. Finding that the chancellor abused his discretion in concluding that the terms of the contract were unreasonable, we reverse and render the judgments of both the Court of Appeals and the Scott County Chancery Court.

FACTS

¶ 2. The following factual background was recited in the Court of Appeals’ opinion.

On May 12, 1997, Daisy Pearl Saveli executed a durable power of attorney appointing her two daughters, Shirley Renfroe and Marguerite Jordan, as her attorneys-in-fact. Under the terms of the durable power of attorney, Renfroe and Jordan were granted the authority “to do, act, perform or execute any and all instruments of any type or nature that [Saveli] could do if [she] were personally present.” In addition, the instrument stated, “this power of attorney shall not be affected by the subsequent disability or incapacity of the principal, or lapse of time.” The validity of the power of attorney is not in dispute.
On August 7, 1998, Renfroe and Jordan, acting as attorneys-in-fact for Sa-veli, entered into a retainer agreement and contract of employment with the law firm of Holcomb, Dunbar, Connell, Chaf-fin and Willard, P.A., specifically retaining David C. Dunbar to pursue a personal injury claim against Shady Lawn Nursing Home on Saveli’s behalf. The employment contract provided that if suit were filed, the attorney’s fees would be forty percent of gross proceeds after the deduction of the law firm’s expenses incurred in prosecuting the claim. Dunbar subsequently left the Holcomb, Dunbar law firm and formed DunbarMon-roe, PLLC. On April 15, 2001, Renfroe and Jordan, acting as attorneys-in-fact for Saveli, executed a second retainer agreement and contract of employment with DunbarMonroe, PLLC, retaining Dunbar and authorizing him to continue with the prosecution of the personal injury, claim. The attorney’s fees provision of the subsequent contract is identical to that of the former contract.
Dunbar continued to pursue the personal injury claim on Saveli’s behalf and eventually received an offer to settle the claim. Upon being presented with the settlement offer, Renfroe and Jordan determined that the offer should be accepted. After the power of attorney was executed, but prior to extension of the settlement offer, Saveli’s mental facilities [sic] diminished rendering her incompetent to administer her affairs.
On May 22, 2001, Dunbar, acting on behalf of Shirley Renfroe, individually and as conservatrix of the Estate of Daisy Pearl Saveli, and the DunbarMon-roe Law Firm, filed a petition in the Scott County Chancery Court (1) for authority to settle a doubtful claim on behalf of the estate, (2) requesting the approval of the employment contract with Dunbar, and (3) for authority to disburse the settlement proceeds.
On May 25, 2001, the court heard the petition for authority to settle a doubtful claim. After the hearing the chancellor approved settlement of the claim, but declined to approve the employment contract of DunbarMonroe as submitted. The employment contract of Dunbar-Monroe called for attorney’s fees of 40% plus costs. However, the chancellor approved a fee of 33 1/3% plus costs.
On July 28, 2001, DunbarMonroe filed a petition requesting that the chancellor reconsider his prior order awarding attorney’s fees of 33 1/3%, and instead grant attorney’s fees of 40% as set forth in the contract. The chancellor denied that request on July 18, 2001, saying:
While Mr. Dunbar requests that the Court honor his original contract with the daughters of the ward, he failed and neglected to have that contract approved by the Court as required by Uniform Chancery Court Rules. Therefore, the contract is not binding on the Court. Instead, the Court has elected to adopt and approve its own contingent fee contract which has been utilized for several years in the Second Chancery Court District. The Verified Petition for Reconsideration of Attorney’s Fees Arising from Settlement of a Doubtful Claim should be denied.
Aggrieved by that denial, Dunbar-Monroe has appealed, asserting that under the Durable Power of Attorney Act, the chancellor was obligated to approve the employment contract as written.
On December 4, 2002, this Court, on its own motion, remanded this matter to the Chancery Court of Scott County and directed it “to conduct a hearing and to make specific findings of fact and conclusions of law concerning the appropriate amount of attorney’s fees in this case. Upon review of the issue of attorney’s fees, the chancellor shall provide a foundation for any award or denial of attorney’s fees and certify his findings to this Court.”
The parties declined to place additional evidence before the chancellor, electing instead to stand on the record as it existed.
The chancellor has now made his findings of fact and conclusions of law as requested, and certified the same to this Court.

856 So.2d at 379-81.

¶ 3. On appeal, a divided Court of Appeals held that the chancellor acted within his discretion in reducing the attorney’s fees from 40% to 33 1/3 %. The Court of Appeals held that while the parties were not mandated to do so by law, each voluntarily chose to submit the contract to the chancellor for approval. “By voluntarily submitting this matter to the chancellor for approval, the parties did so for all purposes.” Id. at 381-82 (citing Humble Oil & Refining Co. v. Rankin, 207 Miss. 402, 408, 42 So.2d 414, 417 (1949)). The Court of Appeals thus affirmed the chancery court judgment. Presiding Judge Southwick, joined by Chief Judge McMillin and Judges Irving and Chandler, dissented arguing that the contract should be enforced as negotiated. Id. at 383-88.

DISCUSSION

¶ 4. This Court’s standard of review regarding determinations of a chancellor is well-established.

This Court will reverse a chancellor only when he is manifestly wrong. Hans v. Hans, 482 So.2d 1117, 1119 (Miss.1986); Duane v. Saltaformaggio, 455 So.2d 753, 757 (Miss.1984). A chancellor’s findings will not be disturbed unless he was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Tinnin v. First United Bank of Miss., 570 So.2d 1193, 1194 (Miss.1990); Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). Where there is substantial evidence to support his findings, this Court is without the authority to disturb his conclusions, although it might have found otherwise as an original matter. In re Estate of Harris, 539 So.2d 1040, 1043 (Miss.1989). Additionally, where the chancellor has made no specific findings, we will proceed on the assumption that he resolved all such fact issues in favor of the appellee. Newsom v. Newsom, 557 So.2d 511, 514 (Miss.1990). The chancellor’s decision must be upheld unless it is found to be contrary to the weight of the evidence or if it is manifestly wrong. O.J. Stanton & Co. v. Mississippi State Highway Comm’n, 370 So.2d 909, 911 (Miss.1979).

In re Estate of Johnson, 735 So.2d 231, 236 (Miss.1999). See also Madison County v. Hopkins, 857 So.2d 43, 47 (Miss.2003); Adoption of C.L.B. v. D.G.B., 812 So.2d 980, 985 (Miss.2002). However, the chancery court’s interpretation and application of the law is reviewed under a de novo standard. Tucker v. Prisock, 791 So.2d 190, 192 (Miss.2001); In re Carney, 758 So.2d 1017, 1019 (Miss.2000).

¶ 5. Dunbar argues that the Court of Appeals failed to consider the controlling constitutional provisions found at U.S. Const. Art. 1, § 10, cl. 1, and Miss. Const. Art. 3, § 16 (1890), which prohibit the impairment of the obligation of contracts. Dunbar further asserts that the unilateral actions of the chancellor in reducing the amount of attorney’s fees set out in the contract of employment ex post facto impaired the obligations of those contracts. Finally, Dunbar contends that because there was neither evidence nor allegations of fraud, the chancellor was required to enforce the employment contract as written, and the Court of Appeals’ opinion was thus in conflict with prior decisions of this Court.

¶ 6. The Court of Appeals’ opinion stated that because Dunbar voluntarily submitted this matter to the chancellor, he did so for all purposes. Humble Oil & Ref. Co. v. Rankin, 207 Miss. at 408, 42 So.2d 414. As correctly stated in the Court of Appeals’ dissenting opinion in this case, Humble, which deals with disputed judicial procedure, does not suggest that what is not normally alterable by a court becomes alterable just because litigation is commenced. Further, the court cited Johnson v. Hinds County, 524 So.2d 947 (Miss.1988), for the proposition that where the parties have voluntarily submitted a matter for resolution to the chancellor, he has the authority to address all matters touching upon the resolution of that issue. The issue discussed in Johnson was whether the chancery court had authority to hear and adjudge any non-chancery law claims via pendent jurisdiction. Neither of these cases suggest that the chancellor has the authority to arbitrarily alter terms of a contract when neither party has raised that as an issue and theré has been no finding that the contract is in any way unenforceable.

¶ 7. This case deals with the Uniform Durable Power of Attorney Act found in Miss.Code Ann. §§ 87-3-101 through 87-3-113.

A durable power of attorney is a power of attorney by which a principal designates another his attorney in fact in writing and the writing contains the words “This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time,” or “This power of attorney shall become effective upon the disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal’s subsequent disability of incapacity, and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument.

Miss.Code Ann. § 87-3-105. The fact that incapacity does not affect the power of attorney is reiterated in § 87-3-107:

All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were competent and not disabled. Unless the instrument states a time of termination, the power is exercisable notwithstanding the lapse of time since the execution of the instrument.

Miss.Code Ann. § 87-3-107. In the case sub judice, there was a valid durable power of attorney. Renfroe and Jordan executed a valid, enforceable contingency fee contract with Dunbar. Out of an abundance of caution, Dunbar sought approval from the chancery court to settle the claim on behalf of the principal. Renfroe and Jordan did not object to the contingency fee, nor did the chancellor make a finding that the contract was unconscionable, fraudulent or otherwise improper. However, the chancellor determined that the contract required prior approval with the chancery court. Because Dunbar did not get prior approval, which he was not required to do pursuant to a durable power of attorney, the chancellor refused to enforce the contract. The chancellor also failed to analyze the reasonableness of the attorneys’ fees by application of the eight factors listed under Miss. R. Profl Cond. 1.5, although the chancellor did state later that he thought such analysis would be proper. The chancellor merely reduced the fee from 40 % to 33 1/3 % without explanation. He noted that in his experience, contingency fee contracts often ranged from 20% to 50%; however, the standard fee accepted in his court was always 33-1/3%. Upon reconsideration, the chancellor set out:

Upon hearing all evidence, both oral and documentary, the Court rendered its opinion that the proposed settlement was just, proper and in the best interest of the ward. As to attorneys fees, the Court was of the opinion that an award of one-third (33%) was appropriate.

The chancellor further discussed the procedure and guidelines with regard to guardians and cited Uniform Chancery Court Rule 6.12, which states in part:

Every petition by a fiduciary or attorney for the allowance of attorney’s fees for services rendered.... In such cases, the amount allowed as attorney’s fees will be fixed by the Chancellor at such sum as will be reasonable compensation for the service rendered and expense incurred without being bound by any contract made with any unauthorized persons. If the parties make an agreement for a contingent fee the contract or agreement of the fiduciary with the attorney must be approved by the Chancellor.

Mississippi Uniform Chancery Court Rule 6.12 (emphasis added). However, Rule 6.12 is applicable in probate matters and is inapplicable to a case involving a durable power of attorney as in the case sub judi-ce. The chancellor acknowledged that there was no guardianship, but maintained that Dunbar’s request for approval of the settlement also gave the court authority to approve the contingent fee contract. The chancellor concluded:

While Mr. Dunbar request [sic] that the Court honor his original contract with the daughters of the ward, he failed and neglected to have that contract approved by the Court as required by Uniform Chancery Court Rules. Therefore, the contract is not binding on the Court. Instead, the Court has elected to adopt and approve its own contingent fee contract which has been utilized for several years in the Second Chancery Court District.

¶ 8. While the case was pending before the Court of Appeals, that court remanded this case to the chancery court for the chancellor to make additional findings of fact and conclusions of law to justify his reduction of the contracted contingency fee. The chancellor, therefore, outlined a historical perspective of the court with regard to insuring that minor, ward or estate settlements are proper, and set out that 40% is considered a standard fee by many attorneys. The chancellor further stated that he was securing the “best deal” for the ward. The chancellor also maintained that Mrs. Saveli’s incompetence, coupled with the existence of the power of attorney and the fiduciary relationship it creates, places the contingent fee contract within the confines of Rule 6.12.

Therefore, without Chancery Court approval, Mr. Dunbar has no contact [sic]. To require Chancery Courts to honor contracts between fiduciaries and attorneys without prior approval of the Court would, in effect, invalidate, annul and rescind a vital part of Rule 6.12 of the Uniform Chancery Court Rules.

¶ 9. The practical effect of the chancellor’s refusal to enforce the terms of the contract entered into by Renfroe and Jordan was a judicial abrogation of the provisions of Miss.Code Ann. §§ 87-3-101 through 87-3-113. Revoking or invalidating the power of the attorneys-in-fact, Renfroe and Jordan, upon the disability of the principal, defeats the purpose of a durable power of attorney. An attorney in fact under a durable power of attorney is not intended to be encompassed within the “fiduciary” referred to in the Uniform Chancery Court Rules. Miss.Code Ann. § 87-3-109 sets out the relationship of the attorney in fact to a court-appointed fiduciary and says, in part:

(1) If, following execution of a durable power of attorney, a court of the principal’s domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all of the principal’s property or all of his property except specified exclusions, the attorney in fact is accountable to the fiduciary as well as to the principal. The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if he were not disabled or incapacitated.

Miss.Code Ann. § 87-3-109(1). The attorney in fact and the fiduciary are clearly set out as two separate entities. Also, the statute states “[i]f ’ a court appoints a conservator, etc., thus clearly revealing that such an appointment is not required. Upon the court’s own motion, the chancellor appointed Renfroe as guardian at the hearing on May 25, 2001, on the petition for authority to settle a doubtful claim. Further, as stated in Presiding Judge Southwiek’s dissenting opinion, the comment to the uniform power of attorney act says:

It is not the purpose of the act to encourage resort to court for a fiduciary appointment that should be largely unnecessary when an alternative regime has been provided via a durable power. UNIFORM DURABLE POWER ATTY ACT, § 3 CMT., 8A U.L.A. 322-23 (1993).

In re Guardianship of Savell, 856 So.2d at 384, (Southwick, P.J., dissenting).

¶ 10. Renfroe and Jordan contracted for the employment of Dunbar not once, but twice, both times agreeing to the contingency fee of 40 %. There was never any objection to the contingency fee or claim by Renfroe and Jordan that it was improper. This was not a contract entered into pursuant to a traditional probate matter and this was not a contract within the parameters of Uniform Chancery Court Rule 6.12. The chancellor did not make any finding that the contract or the durable power of attorney was unenforceable or improper for any reason other than that he did not agree with the amount of the fee, which he said was arguably standard.

¶ 11. We find that the chancellor’s imposition of his “general housekeeping rules” was improper. As so ably stated by Presiding Judge Southwick, “with all respect to the chancellor, he concluded that no contract was valid or reasonable unless it met his norms.” The chancellor also failed to uphold the constitutional provision which prohibits the impairment of obligations of contracts. Miss. Const. art. 3, § 16 (1890).

CONCLUSION

¶ 12. Finding that the chancellor abused his discretion in arbitrarily decreasing the amount of the contingency fee, we reverse the judgments of both the Court of Appeals and the Scott County Chancery Court, and we render judgment that the original terms of the contract are declared as enforceable.

¶ 13. THE JUDGMENTS OF THE COURT OF APPEALS AND THE SCOTT COUNTY CHANCERY COURT ARE REVERSED AND RENDERED.

SMITH, C.J., COBB, P.J., GRAVES, DICKINSON AND RANDOLPH, JJ„ CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WALLER, P.J., AND DIAZ, J., NOT PARTICIPATING.

      . The cause of action concerning Saveli’s personal injury claim accrued on or about February 18, 1997, when she fractured her hip at Shady Lawn Nursing Home.

      . The settlement reached by the parties was in the amount of $225,000.

      . Dunbar asserts that Mrs. Saveli was not incompetent at the time the contingency fee contract was entered into and that her deposition was taken thereafter in the underlying matter.


source: Caselaw Access Project

author: DICKINSON, Justice, WALLER, Presiding Justice,

license: Public Domain

text:
    Barbara Ann GUNTER and Anthony Hill v. Theresa Dawn Hill GRAY.
    No. 2002-CA-02106-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      Melissa Lee Day Gardner, Brandon, attorney for appellants.
    Sharon Patterson Thibodeaux, Jackson, attorney for appellee.
   DICKINSON, Justice,

for the Court.

¶ 1. The case before us involves the attempt by a mother to have the parental rights of a father, as to his two daughters, terminated.- The basis of the complaint is the father’s sordid, criminal conduct against the mother, a step-daughter from the mother’s previous marriage, and society in general. No allegation is made of abuse or criminal conduct by the father against either of his two daughters. We believe an initial observation is appropriate.

¶ 2. One of the features of our free society which, at times, results in undesirable consequences, is the virtually unfettered right of our citizens — qualified or not — to bear children and raise them according to the parents’ value system, with almost no guidance or assistance. Parents have the right to select the religious and moral training for their children, and they exert great influence on their children’s thinking about such matters as violence, crime, prejudice and the like.

¶ 3. Because parental rights are so important, we sharply limit the circumstances under which can be terminated by the government. This Court, and the judiciary in general, sets forth the rules and criteria for a non-custodial parent’s visitation with his or her children. We have the prerogative and, indeed, the obligation to deny a non-custodial parent any visitation rights or contact with his or her children whatsoever where, to do so, would be in the child’s best interest. However, termination of parental rights is a different matter. The extinguishment of the substantive right to be regarded by our law as the legal parent of a child is wholly within the discretion of the Legislature. The only limit to that legislative prerogative lies within the Constitutions of the United States and the state of Mississippi.

¶ 4. This case exemplifies what the majority considers to be a legislative oversight. We find it difficult to accept that the Legislature, in its wisdom, would not conclude that the parental rights of Anthony Hill should be terminated. We hasten to state that, if we were allowed by law to terminate parental rights under the facts and circumstances of this case, we would do so. However, we are bound by the oath of office to follow the law. The law provides very specific grounds for termination of parental rights. Unfortunately, Anthony’s conduct does not fit any of the grounds enumerated by the statute. We are not allowed to create law; we must follow the law given to us by the Legislature.

¶ 5. In that regard, we hereby call upon the Legislature to review the facts of this case and reexamine Miss.Code Ann. § 93-15-103. This Court would welcome an amendment to the statute which adds as grounds for termination of parental rights a series of abusive incidents involving a spouse and/or children. But unless and until the statute is amended, we must follow the statute as it currently exists.

FACTS

¶ 6. Theresa and Anthony Hill were divorced on November 5,1997 on the ground of irreconcilable differences. Two daughters, were born during the marriage. At the time of the divorce, the parties entered into an agreement outlining the custodial arrangement, child support obligations and visitation rights of the parties. Pursuant to the agreement, the parties shared joint legal custody, and Theresa had primary physical custody. Anthony was ordered to pay $350.00 per month in child support and was granted standard visitation rights.

¶ 7. The relationship between Theresa and Anthony quickly began to deteriorate. On August 12, 1998, the trial court dismissed competing contempt actions, but ordered a modification of the Final Judgment by designating a specific place for the exchange of the minor children for visitation purposes. The trial judge also ordered Anthony to cease his alleged harassment of Theresa and to submit to psychiatric evaluation and treatment.

¶ 8. On December 2, 1999, the trial court again dismissed competing contempt actions, but lowered Anthony’s child support obligation, and entered a judgment against him for child support arrearage.

¶ 9. During the period of time between the divorce and the trial on the merits in the case sub judice, Theresa filed criminal charges against Anthony on several occasions. On November 20, 1997, Anthony was found guilty of one count of simple assault against Theresa and one count of assault on Theresa’s daughter from a previous marriage. A subsequent charge of simple assault was remanded to the files on December 9, 1997.

¶ 10. On April 19, 1998, Anthony was convicted of one count of simple assault against Theresa and on July 20, 1998, he was found guilty of stalking Theresa. Additionally, prior to Theresa’s remarriage, Anthony was convicted of trespassing on the property of her then-boyfriend on two separate occasions.

¶ 11. In March, 1999, Anthony was found guilty of telephone harassment and was sentenced to two years in the custody of the Mississippi Department of Corrections. However, the sentence was suspended, and he was placed on supervised probation. As a condition of his probation, Anthony was ordered to have no contact with either Theresa or her new husband, except as in the manner and at the times permitted by the chancery court. Throughout this time, Anthony continued to exercise Ms visitation with his daughters on a regular and routine basis.

¶ 12. During February, 2000, Anthony violated his probation by telephoning Theresa, and on March 17, 2000, the trial court found Anthony guilty of a new charge of telephone harassment and revoked his suspended sentence and remanded him to the custody of the Mississippi Department of Corrections for two years.

¶ 13. Anthony and his mother, Barbara Ann Gunter, filed their petition requesting the Court to grant “grandparents visitation rights” to Barbara.

¶ 14. Theresa generally denied the allegations of Anthony’s petition, and filed a counter-petition, requesting that Anthony’s parental rights be terminated.

¶ 15. On January 20, 2001, the trial court appointed Kate S. Eidt as Guardian Ad Litem for the children, and instructed her to conduct and independent investigation. On June 11, 2001, Eidt issued her report finding that a “genuine and strong bond” existed between Anthony and his daughters. Eidt also found that a relationship existed between the minor children and Barbara, and that Barbara would be in a position to assist and foster the relationship between Anthony and his daughters during his incarceration.

¶ 16. On November 26, 2002, the trial court entered a judgment granting Theresa’s counter-petition to terminate Anthony’s parental rights and denying Barbara’s petition for grandparent’s visitation rights. It is from this judgment that Anthony and Barbara appeal.

DISCUSSION

¶ 17. On appeal, Anthony and Barbara raise three issues:

I. Whether the trial court erred in terminating the natural father’s parental rights.
II. Whether the trial court erred in denying grandparent visitation.
III. Whether the trial court failed to issue findings of fact sufficient to support its ruling and failed to provide a reason for not adopting the recommendation of the Guardian Ad Litem.

¶ 18. On an appeal of termination of parental rights, the standard of review is limited. S.N.C. v. J.R.D., 755 So.2d 1077, 1080 (Miss.2000). “The chancellor’s findings of facts are viewed under the manifest error/substantial credible evidence test.” Id. (citations omitted). This Court “ask[s] not how we would have decided the case ab initio but whether there be credible proof from which a rational trier of fact may have found abandonment by clear and convincing evidence.” Id. (citation omitted).

¶ 19. The reasons for which parental rights may be terminated are controlled by the Legislature. The courts have no right, authority or power to add to those reasons. Miss.Code Ann. § 93-15-103 states in pertinent part:

(3) Grounds for termination of parental rights shall be based on one or more of the following factors:
(a) A parent has deserted without means of identification or abandoned a child as defined in Section 97-5-1, or
(b) A parent has made no contact with a child under the age of three (3) for six (6) months or a child three (3) years of age or older for a period of one (1) year; or
(c)A parent has been responsible for a series of abusive incidents concerning one or more children; or
(f) When there is an extreme and deep-seated antipathy by the child toward the parent or when there is some other substantial erosion of the relationship between the parent and child which was caused at least in part by the parent’s serious neglect, abuse, prolonged and unreasonable absence, unreasonable failure to visit or communicate, or prolonged imprisonment; or
(g) When a parent has been convicted of any of the following offenses against his natural or adopted child: (i) rape of a child under the provisions of Section 97-3-65, (ii) sexual battery of a child under the provisions of Section 97-3-95(c), (iii) touching a child for lustful purposes under the provisions of Section 97-5-23, (iv) exploitation of a child under the provisions of Section 97-5-31, (v) felonious abuse or battery of a child under the provisions of Section 97-5-39(2), or (vi) carnal knowledge of a step or adopted child or a child of a cohabi-tating partner under the provisions of Section 97-5-41....

In its judgment entered, on November 26, 2002, the trial court held:

The Court finds that Mississippi law requires that the Court find by clear and convincing evidence that a party whose rights are sought to be terminated should be terminated. The Court further finds that the evidence in this case is not only clear and convincing, but overwhelming. Therefore, the Court finds, by clear and convincing evidence that the Petitioner, ANTHONY STEVE HILL, has failed and refused to pay his child support obligation, has failed to maintain a policy of medical insurance coverage in his minor children, and has failed to attempt to communicate with his minor children in one and one-half years, and therefore, the parental rights of the Petitioner, ANTHONY STEVE HILL, should be, and hereby are, terminated as to the minor children.

¶ 20. Anthony was incarcerated in February 2000, and the hearing regarding parental rights and grandparent visitation took place on November 5, 2001. The chancellor stated that Anthony had “failed to attempt to communicate with his minor children in one and one-half years.”

¶ 21. Anthony contends that he did not abandon his children. This Court has defined abandonment as “any conduct by a parent which evinces a settled purpose to forego all duties and relinquish all parental claims to the child.” S.N.C., 755 So.2d at 1081. “The test is an objective one: whether under the totality of the circumstances ... the natural parent has manifested [his] severance of all ties with the child.” Id.

¶ 22. The record demonstrates that Anthony has not been the ideal husband, ex-husband or parent. However, it fails to show that Anthony has abandoned the children. Through testimony, it was clearly demonstrated that Anthony exercised his visitation regularly and routinely until the time of his incarceration.

¶ 23. As to Anthony’s relationship with the children, the Guardian Ad Litem stated:

While I believe that it will be difficult, more likely impossible, to allow Teresa [sic] and Steve [Anthony] to ever have contact with each other in the future, I do find that there exists a genuine and strong bond between the girls for their Dad. They readily express their love for him and thus there exists a loving relationship between the three of them. Furthermore, this relationship has been verified by every person that I have interviewed, including Teresa [sic] Gray.

¶ 24. As part of Anthony’s sentence, he was prohibited from making any contact with Theresa or her husband without court approval. Anthony contends that any attempts to contact the children, i.e., telephone calls or messages, would have resulted in contact with Theresa, thereby placing him at risk of additional charges and penalties. However, Theresa contends that Anthony was never ordered to refrain from communicating with his children. Theresa contends that any attempt at sending letters, birthday cards, Christmas presents or contacting the children by telephone would not have required that he contact Theresa.

¶ 25. The Guardian Ad Litem reported that, following Anthony’s imprisonment, Theresa did not allow the girls to visit with Gunter. Therefore, we find that Anthony’s only realistic means of contacting the children would have been at Theresa’s home, which placed Anthony at risk of contact with Theresa.

¶ 26. In recommending that Gunter be granted visitation rights during Anthony’s incarceration, the Guardian Ad Litem stated:

Mrs. Gunter suggested that if she were afforded to [sic] opportunity to have weekend visitation with the girls, then [Anthony] could call her and allow him to speak with the girls which would be a reasonable way to re-open communication between the girls and their father as long as there was no mention of their mother or her husband. The girls could also write to him and he could respond to them, but only at his mother’s address and again as long as there was no mention of their mother or her husband.

¶ 27. It appears that the Guardian Ad Litem recognized the communication problems between Anthony and his children because of the potential contact with Theresa. However, the chancellor stated from the bench:

Well, I’ll have to say this. Every single witness’ testimony I’ve heard has been overwhelming to the effect that Mr. Hill has totally failed to carry out his obligations to his children. He’s refused to pay any child support. We heard that on the tape. He said he wasn’t going to. He’s obviously in contempt of court. But he also, according to the testimony that’s been presented, has failed to try to communicate with them in any way since a year and a half ago. He’s done nothing. It would appear to me — and this is just speculation on my part — that perhaps the driving force behind this may be his mother who was seeking grandparent visitation.
But the law requires that the Court find by clear and convincing evidence that a party whose rights are sought to ne terminated should be terminated. In this case I think it was not only clear and convincing, but it was overwhelming. And this Court is obligated to look out for the best interests of the children. And I’m going to do my duty and declare his parental rights terminated.

¶ 28. The chancellor made no mention regarding communication with the children other than Anthony had not communicated with them for a year and a half. In prohibiting Anthony from having any contact with Theresa, the chancellor made no provision for Anthony to contact his children under the circumstances. There was testimony that Anthony communicated and exercised his visitation rights up until the time of his incarceration. Furthermore, there was an effort on Anthony’s part to have his mother granted visitation rights in which he would have been able to have contact with his children while she had them. Therefore, this Court finds that Anthony did not abandon his children once he was incarcerated.

¶ 29. Theresa points out that this Court has held that “[imprisonment, and the resulting conditions, can be rightfully considered as a significant factor when determining whether rights may be terminated.” Vance v. Lincoln County Dept. of Pub. Welfare, 582 So.2d 414, 418 (Miss.1991). In Vance, the parent argued that the trial “court erred in terminating her parental rights based solely on her incarceration.” This Court concluded: “It is clear that the chancellor in this case considered [the parent’s] potentially lengthy incarceration as one, albiet[albeit] major, factor in his findings of substantial erosion. This issue is without merit.” Id. While Theresa’s observations concerning Vance are correct, her case is substantially different. In Vance, there was evidence that the relationship between the mother and her children had substantially eroded, and further evidence of indifference in the children’s attitude toward their mother. Furthermore, the mother in Vance was sentenced to (54) years for murder and 30 years for armed robbery. These facts are quite different from this case.

¶ 30. Theresa raises the fact that Anthony was convicted of simple assault against her minor daughter from a previous marriage. His step-daughter testified at trial regarding abuse:

Q. Okay_, let me ask you. From time to time when he got violent, would he ever get violent at you?
A. Occasionally, yes.
Q. Okay. And what did that amount to, please?
A. If I had done something wrong, he would hit me. I mean spank me.
Q. Like spanking or something, like fuss and swat your butt.
A. Uh-huh. He’s never been abusive, like hitting me.
Q. Tracy, when Mr. Folse was questioning you, you said that he never hit you. Are you saying he never hit you in punishment? „
A. Whenever I did something bad. This is prior to all the abuse that happened.
Q. All right. So there were later instances when he actually struck you.
A. He struck me on my face. But he was trying to hit my mom, but he had missed, because I was trying to pull him off my mom.

¶ 31. This testimony clearly sets forth that Theresa failed to prove by clear and convincing evidence that Anthony engaged in a series of abuse against Tracy. Furthermore, there were allegation of Anthony touching or attempting to touch Tracy in an inappropriate manner. If this is true, then charges should have been brought and, if proven, Anthony, should have been dealt with appropriately. However, no charges were filed against Anthony. Even if charges had been brought, and Anthony had been convicted, the statute in effect at the time would not have allowed termination of parental rights for Anthony’s behavior toward a step-daughter, and the statute covered only natural and adopted children.

¶ 32. Theresa argues that Anthony’s violence toward others meets the requirements of § 93-15-103(3)(c). She states that a parent who “has been responsible for a series of abusive incidents concerning one or more children” supports the termination of his rights because the abusiveness, violent rages and uncontrolled temper affected the children. There was testimony that during his rages, the children were frightened, scared, cry and yell for him to stop. There was also testimony, however, that the abuse was never directed towards Anthony’s children.

¶ 33. It is very tragic and disturbing that these children have been exposed to abuse directed toward their mother. However, as stated earlier, it is within the exclusive prerogative of the Legislature to determine the circumstances which merit termination of parental rights. Anthony’s conduct does not meet the “series of abusive incidents” as required by § 93-15-103(3).

¶ 34. Theresa testified that her specific reason for requesting a termination of Anthony’s parental rights was:

I cannot feel comfortable with [our daughters] seeing this man. I am terrified of what he may do later on or now. His drinking, his abusiveness towards woman, his rage, his hatred. I don’t want them to witness that. I want them to grow up normal. I want them to be okay. And I don’t think they can be okay visiting with this man. I don’t want them to be psychologically scarred. And I especially don’t want them to be given beers, cigarettes or fondled.

¶ 35. We think Theresa’s words are commendable and full of wisdom. However, fear of what Anthony may do later is not grounds for termination of parental rights pursuant to § 93-15-103. We hasten to again point out that the matter before us involves the question of whether parental rights may be terminated. We do not here address in any manner the question of whether, and under what conditions, Anthony may visit with the children.

¶ 36. We find that Theresa did not present clear and convincing evidence which would justify termination of parental rights as provided by § 93-15-103.

¶ 37. Since this Court holds that the trial court erred in terminating the parental rights, the issue of grandparent visitation is moot. Therefore, we will not address that issue; however, a discussion regarding the Guardian Ad Litem’s report and recommendation is warranted.

II. Whether the trial court failed to issue findings of fact sufficient to support its ruling and failed to provide a reason for not adopting the recommendation of the Guardian Ad Litem.

¶ 38. Anthony points out that the trial court failed to make a finding on the record of the reasons for not adopting the recommendation of the Guardian Ad Li-tem. Theresa contends that the guardian ad litem’s view is only additional information to aid the chancellor in making the decision on the merits of the matter in dispute, a decision which ultimately lies with the chancellor. Theresa further contends that the chancellor, as fact-finder, should consider the evidence presented by the guardian ad litem, as well as all other relevant evidence. While this may be correct, this Court has held:

[T]he proper function or role of a guardian ad litem as one who ‘investigates, makes recommendations to a court, or enters reports’ and is ‘a representative of the court appointed to assist it in properly protecting the interests of an incompetent person.’

S.N.C., 755 So.2d at 1082 (citations omitted). Furthermore, this Court held:

that a chancellor shall include at least a summary review of the qualifications and recommendations of the guardian as litem in the court’s findings of fact and conclusions of law. Further, we hold that when a chancellor’s ruling is contrary to the recommendation of a statutorily required guardian ad litem, the reasons for not adopting the guardian as litem’s recommendation shall be stated by the court in the findings of fact and conclusions of law.

Id. (emphasis added). Miss.Code Ann. § 93-15-107 (Supp.2003) states in pertinent part: “A guardian ad litem shall be appointed to protect the interest of the child in the termination of parental rights.” Therefore, since the appointment of the guardian ad litem was mandatory in the case sub judice, the chancellor erred by failing to state the reasons for not adopting the guardian as litem’s recommendation.

CONCLUSION

¶ 39. The chancellor erred in terminating Anthony’s parental rights and in failing to state the reasons for not adopting the guardian ad litem’s recommendation. Therefore, we reverse the chancellor’s judgment, and we remand this case for further proceedings consistent with this opinion.

¶ 40. REVERSED AND REMANDED.

SMITH, C.J., COBB, P.J., AND GRAVES, J., CONCUR. WALLER, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. JOINED BY CARLSON AND RANDOLPH, JJ., DIAZ AND EASLEY, JJ., NOT PARTICIPATING.

WALLER, Presiding Justice,

Dissenting:

¶ 41. I respectfully dissent from the majority’s finding that termination of Anthony’s parental rights is not appropriate. Anthony’s intentionally destructive and criminal conduct convinces me that the learned chancellor’s finding that Anthony was an unfit father was correct.

¶ 42. The record shows that Anthony is guilty of two separate counts of simple assault against his ex-wife Theresa; one count of simple assault against Theresa’s minor daughter; one count of stalking Theresa, two separate counts of trespass, and two separate counts of telephone harassment against Theresa. Anthony was physically and mentally abusive towards Theresa and “during his rages, the children were frightened, scared, [and cried and yelled] for him to stop.” But the majority minimizes this behavior because “the abuse was never directed towards Anthony’s children.”

¶ 43. However, Anthony’s uncontrolled rages and habitual criminal conduct toward the children’s mother has created an atmosphere in which the children cannot help but be negatively affected. Whether Anthony has physically abused the children should be irrelevant where the children cannot be shielded from his emotional abuse. He has shown no signs of remorse for his behavior, and even though he has presumably completed court-ordered therapy, his relentless battle against authorities and his ex-wife have continued.

¶ 44. Finally, the record shows that Anthony has “refused” to pay court-ordered child support. The only evidence which reflects positively on Anthony is that he seems to have a loving relationship with his two daughters. However, this evidence is vastly overshadowed by his criminal and destructive conduct.

¶ 45. The evidence clearly supports the chancellor’s termination of Anthony’s parental rights. Accordingly, I would affirm the chancellor’s judgment.

CARLSON AND RANDOLPH, JJ., JOIN THIS OPINION.

      .Indeed, we consider raising our children to be a fundamental right, entitled to great protection. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944).

      . Where the abuse of the spouse took place in the presence of the child.

      . The parent's children, step-children, or other children.

      . The version of this statute in effect at the time of the events of this case was enacted in 1998. Laws, 1998, ch. 516, Section 10.

      . Abandonment under Miss.Code Ann. § 97-5-1 makes it a crime to leave a child on the street, or elsewhere, with the intent to abandon it.

      . The statute has since been amended to include as grounds for termination of parental rights the conviction for certain enumerated sexual behavior against any child.


author: GRAVES, Justice, DICKINSON, Justice, SMITH, Chief Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Solomon C. OSBORNE.
    No. 2003-JP-00057-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      Luther T. Brantley, III, Darlene Ballard, Jackson, attorneys for appellant.
    Leonard McClellan, Jackson, attorneys for appellee.
   GRAVES, Justice,

for the Court.

¶ 1. This judicial performance case involves the alleged judicial misconduct of Leflore County Court Judge Solomon C. Osborne. On August 8, 2001, Judge Osborne was appointed to fill an unexpired term of County Court Judge for Leflore County. He was later elected to a full term. Judge Osborne admits that between October, 2001 and January, 2002, he filed on behalf of clients five complaints in chancery courts, one complaint in circuit court, and two petitions in bankruptcy court. The state court filings occurred in the following counties: Sunflower, Bolivar, Leflore, and Montgomery. The federal bankruptcy petitions were filed in the United States Bankruptcy Court for the Northern District of Mississippi.

¶ 2. On January 9, 2003, the Mississippi Commission on Judicial Performance filed a formal complaint against Judge Osborne. The complaint alleged that Judge Osborne continued to practice law after his appointment to the bench, thereby violating Miss. Code Ann. §§ 9-1-25 and 9-9-9, as well as Canons 1, 2A, 2B, 3A and 4G of the Mississippi Code of Judicial Conduct. The complaint also asserted that Judge Osborne’s conduct constituted willful misconduct and conduct prejudicial to the administration of justice in violation of Miss. Const. art 6, § 177A. The Commission filed a petition for interim suspension, and this Court granted the petition.

¶ 3. The Commission’s attorney urged the Commission to remove Judge Osborne from office. After a hearing, the Commission rendered its Findings of Facts, Analysis and Recommendations and found that Judge Osborne’s conduct did not warrant the harsh sanction of removal from office. Specifically, the Commission recommended that this Court take the following actions in this matter: publicly reprimand Judge Osborne, rescind his temporary suspension, reinstate Mm to office, and order him to pay costs of the proceeding. This Court agrees with and adopts the Commission’s findings and recommendations.

STANDARD OF REVIEW

¶ 4. This Court reviews disciplinary matters de novo. Miss. Comm’n on Judicial Performance v. Teel, 863 So.2d 973, 975 (Miss.2004). While it is true that this Court is the trier of fact in judicial misconduct proceedings and may impose additional sanctions, it nonetheless gives great weight to the findings of the Commission which has had the opportunity to observe the demeanor of the witnesses. In re Garner, 466 So.2d 884, 885 (Miss.1985).

DISCUSSION

I. Whether Judge Osborne’s conduct constitutes “practicing law” as prohibited by Mississippi Code Annotated, Sections 9-1-25 and 9-9-9.

¶ 5. Miss.Code Ann. § 9-1-25 states in pertinent part:

It shall not be lawful for any judge of the Supreme Court, Court of Appeals or a judge of the circuit court, or a chancellor to exercise the profession or employment of an attorney or counselor at law, or to be engaged in the practice of laws; and any person offending against this prohibition shall be guilty of a high misdemeanor and be removed from office; but this shall not prohibit a chancellor or circuit judge or a judge of the Court of Appeals from practicing in any of the courts for a period of six (6) months from the time such judges or chancellors assume office so far as to enable them to bring a conclusion to cases actually pending when they were appointed or elected in which such chancellor or judge was then employed.

(emphasis added). Miss.Code Ann. § 9-9-9 (Rev.2002) extends the prohibition against practicing law to county judges in stating:

The county judge shall not practice law in any of the courts of the county wherein he holds court, but this prohibition shall not prohibit the judges of the county courts from practicing in any of the courts so far as to enable them to bring to a conclusion cases actually pending when they were appointed or elected, in which such county judges were then employed as provided in section 9-1-25, Mississippi Code of 1972, for judges of the circuit court and chancellors.

A county court judge is allowed six months to bring his practice to a conclusion. See id. § 9-1-25.

¶ 6. As the Commission correctly notes, this Court has never interpreted Miss. Code Ann. § 9-9-9 pertaining to the “winding down” period in which judges are allowed six months from the time they assume office to bring a conclusion to cases actually pending when they were appointed or elected. The Commission argues that the term “cases actually pending” is intended to reflect a matter in which a pleading has been filed before the Court and for which no final determination has yet been made. The Commission further avers that the language of Miss.Code Ann. § 9-1-25 sufficiently and clearly defines what members of the bench are permitted to do to conclude their law practice within the permissible statutory period either by resolution of the matter via negotiation, submission of a final order, or by withdrawal of counsel.

¶ 7. In the case at bar, Judge Osborne filed neiv actions, either complaints or petitions, within the six month “winding down” period. Judge Osborne claims that he relied on the language of Miss.Code Ann. § 9-9-9, and the term “pending cases” is not limited to cases pending in court. Rather, pending cases could also mean cases awaiting conclusion in a lawyer’s office. While it is true that the term “pending cases” is somewhat ambiguous, it is clear that filing new actions in no way constitutes concluding cases actually pending. This Court finds that the actions of filing new complaints or petitions by Judge Osborne constitutes “practicing law” under § 9-1-25.

II. Whether Judge Osborne’s conduct constituted conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

¶ 8. Pursuant to . the Mississippi Constitution, the Court may “remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for ... conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” Miss. Const. art. 6, § 177A. As the Court has stated, the conduct need not be in bad faith-rather, it may be the result of negligence or ignorance. Miss. Comm’n on Judicial Performance v. Justice Court Judge S.S., 834 So.2d 31, 34-35 (Miss.) That is, the Court has held:

While the conduct of Respondent, in our opinion, amounted to willful misconduct in office and conduct prejudicial to the administration of justice, bringing the judicial office into disrepute, we recognize ... that a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. The result is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions.

Id. (quoting Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 875 (Miss.2000)) (internal citations omitted).

¶ 9. While the Commission’s counsel argued that Judge Osborne’s conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, the Commission found only that it amounted to prejudicial conduct. This Court agrees with the Commission’s findings that Judge Osborne’s conduct only amounted to prejudicial conduct and not willful conduct which brings the judicial office into disrepute. Judge Osborne did not willfully abuse the privilege of his office in filing the new complaints. He simply misinterpreted the statute allowing a judge six months to wind down his practice. However, as this Court has previously held, regardless of whether a judge’s misconduct arises from bad faith or ignorance, sanctions must be imposed.

III. Whether Judge Osborne’s conduct warrants removal from office.

¶ 10. Under this Court’s established jurisprudence, in a judicial misconduct proceeding, “[t]he sanction imposed should be consistent with other like cases.” Miss. Comm’n on Judicial Performance v. Willard, 788 So.2d 736, 745 (Miss.2001). The sanction should also fit the offense. Miss. Comm’n on Judicial Performance v. Warren, 791 So.2d 194, 197 (Miss.2001).

¶ 11. The Commission’s attorney suggests that because Judge Osborne filed eight complaints during the six months after he was elected to office, removal from office somehow “fits the offense.” We disagree. Removal is an extreme and draconian measure, and does this sanction fit this offense. This sanction should only be employed as a last resort.

¶ 12. In Mississippi Comm’n on Judicial Performance v. Jenkins, 725 So.2d 162, 169 (Miss 1998), this Court defined willful misconduct in office as:

the improper or wrongful use of power in 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 he office, what ever motive.

The Commission found that Judge Osborne’s actions did not rise to the level of willful misconduct which would result in removal from the bench. Specifically, the Commission found that:

§ 9-9-9 does not address the penalty phase as found in § 9-1-25. More specifically, the statute does not provide for the removal of office as a violation of penalty. Judge Osborne should be governed under § 9-9-9 and as such, removal from office should not be the only option.

The Commission further commented on the legislative intent of § 9-9-9 in stating:

Surely the legislature could not have intended § 9-9-9 of the Mississippi Code Annotated to yield such harsh results in the absence of any aggravating circumstances. ... Having considered that [Judge Osborne] has not been subject to any prior disciplinary proceedings before this Body, the Mississippi Commission on Judicial Performance Panel recommends to the Mississippi Supreme Court that Judge Solomon Osborne be:
1. Publicly Reprimanded;
2. Temporary Suspension to be Rescinded and Judge Osborne Reinstated into Office; and
3. Assessed the Costs of this Proceeding.

(emphasis added).

¶ 13. Judge Osborne relied on the language of Miss.Code Ann. § 9-9-9 when he filed the complaints in the six months after he was appointed to office. Judge Osborne claims that he relied on this language, and in his view, the term “pending cases” is not limited to cases pending in court. Rather, pending cases could also mean cases awaiting conclusion in a lawyer’s office. Because of the ambiguity of the statute’s language Judge Osborne acted out of ignorance or misinterpretation of the statute. This does not constitute “willful misconduct” that warrants removal from office.

¶ 14. Furthermore, the record reveals that Judge Osborne did, in fact, attempt to “wind down” his practice. Judge Osborne informed all of his clients by letter that he would no longer be able to represent them due to his appointment as a County Court Judge and advised his clients to retain new counsel in order to complete their case. These actions further demonstrate that Judge Osborne did not file the complaints in bad faith or in an attempt to abuse his power of his judicial office. He took affirmative steps to properly inform his clients that he would not be able to continue his representation in their case. Therefore, this Court finds that Judge Osborne’s actions were not willful and do not warrant removal from office.

¶ 15. This is a case of first impression, and as such there are no other “like cases” to the case at bar where removal from office is a suggested sanction for this type of offense. The only other “like cases” where a judge is removed from office involves criminal conduct or an extreme and obvious case of abuse of the power of the judicial office. Here, Judge Osborne filed complaints in the six months after he was appointed to office. This is a far cry from felony criminal conduct or an abuse of power of the judicial office.

¶ 16. In Mississippi Comm’n on Judicial Performance v. Willard, 788 So.2d at 745, where this Court held that “the sanction imposed should be consistent with other like cases,” Judge Willard was removed from office because during a two — year period there were 31 counts - of alleged misconduct against him. The allegations included improperly accepting payment or partial payment of fines payable to the justice court, improperly dismissing a DUI charge on his own motion, improperly engaging in ex parte communications and improperly dismissing traffic citations for four defendants who did not appear in court, improperly utilizing a criminal process to collect a civil debt, improperly issuing an arrest warrant for someone who did not actual owe any fines, inter alia. Clearly, Judge Osborne’s actions are not comparable to the actions in the aforementioned case and do not warrant a removal from office.

¶ 17. In Mississippi Comm’n on Judicial Performance v. Warren, where this Court held that the “sanction should fit the offense,” it was ruled that the judge’s conduct of engaging in ex parte communications and dismissing speeding tickets based on those communications without notice to the ticketing officer and without a hearing constituted willful misconduct in office and conduct prejudicial to the administration of justice. The appropriate sanction in that case was a public reprimand, along with a fine of $765. Warren is a case where the judge clearly abused his judicial office, and this Court held that the proper sanction to fit this offense is a public reprimand and a fine. Here, Judge Osborne was not abusing the power of the judicial office. He was merely following his interpretation of the statute. Both of the judge’s sanctions in the aforementioned cases are based on judicial conduct that is far more egregious than Judge Osborne’s conduct in the present ease. As such, Judge Osborne should not be removed from office.

CONCLUSION

¶ 18. We adopt the Commission’s findings and recommendations.

¶ 19. LEFLORE COUNTY COURT JUDGE SOLOMON C. OSBORNE SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE AT THE NEXT TERM OF THE LEFLORE COUNTY CIRCUIT COURT. THE INTERIM SUSPENSION OF JUDGE OSBORNE IS LIFTED, AND JUDGE OSBORNE IS REINSTATED, EFFECTIVE JULY 1, 2004. JUDGE OSBORNE IS TAXED WITH THE COSTS OF THIS PROCEEDING IN THE AMOUNT OF $1,150.06.

WALLER, P.J., AND EASLEY, J., CONCUR. COBB, P.J. CONCURS IN RESULT ONLY. DICKINSON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY WALLER AND COBB, P.JJ.; EASLEY AND RANDOLPH, JJ„ JOIN IN PART. SMITH, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY CARLSON AND RANDOLPH, JJ. DIAZ, J., NOT PARTICIPATING.

DICKINSON, Justice,

Specially Concurring:

¶ 20. In my view, Justice Graves has said all that is necessary concerning this matter, except that he does not comment on the constitutionality of Miss.Code Ann. § 9-1-25. I am compelled to do so.

¶ 21. This case provides an example of the confusion and difficulty which result when one branch of our state government infringes upon the obligations and powers of another. Our executive, legislative and judicial branches have no source of power, other than that granted by our state Constitution. Article 6, Section 144, provides, “The judicial power of the state shall be vested in a Supreme Court....”

¶ 22. This clear grant of power over the judiciary to the Supreme Court has few exceptions, all of which are provided within the Constitution, itself. Any exception originating from any other source would, on its face, be invalid and unconstitutional.

¶ 23. Examples of some of the constitutional exceptions to the Supreme Court’s responsibility for, and power over, the judiciary, include the following:

1. Article 6, Section 149, sets the term of office for a Supreme Court Justice at eight years, but specifically grants to the legislature the power and obligation to determine the dates on which those eight-year terms begin and end;
2. Article 6, Section 152, grants to the legislature the power and obligation to divide the state into circuit court, and chancery court, districts, and to establish criteria by which the number of judges in those districts are determined;
3. Article 6, Section 163, grants to the legislature the obligation to provide for the due certification of cases transferred to or from chancery court or circuit court.

Section 9-1-25.

¶ 24. Section 9-1-25 makes it “unlawful” and a “high misdemeanor” for a judge to practice law. I have difficulty in the first instance determining the category of the statute. Is it a criminal statute? (it includes the terms, “unlawful” and “high misdemeanor”); Is it a disciplinary statute? (it certainly provides for discipline of the lawyer/judge); Is it a qualification/disqualification statute? (the judge is qualified if he or she doesn’t violate the statute, and disqualified if he or she does).

Is it a Criminal Statute?

¶25. If the statute is criminal, then Judge Osborne can certainly not be disciplined absent conviction of the criminal offense. There has been no charge, arrest, indictment, prosecution or trial of a criminal offense. And even if each of these had occurred, the legislature clearly cannot make unlawful the actions of a lawyer or judge which are exercised pursuant to power conferred upon another branch of government. If it had such power, then the legislature would have the ability, for instance, to make it “unlawful” and a “high misdemeanor” for the Governor to serve in office after obtaining a divorce. The legislature obviously has no such power or ability. Nowhere does the Constitution grant to the legislature the power to set forth the terms upon which the Governor or a judge may serve, or be removed from office. Such power cannot be created indirectly by use of the legitimate legislative power to determine substantive criminal offenses.

Is it a Disciplinary Statute?

¶ 26. The statute certainly seems to provide for the discipline of Judge Osborne, since it states that, if Judge Osborne practiced law past the statute’s six-month “grace period,” he shall be removed from office — the most severe discipline a judge can receive for misconduct.

¶ 27. Lawyers are disciplined pursuant to the Rules of Discipline for the State Bar. Rule 1., thereunder, provides, “The Supreme Court of Mississippi has exclusive and inherent jurisdiction of matters pertaining to attorney discipline.... ” Furthermore, Miss.Code Ann. § 73-3-301 provides that attorneys practicing in this state “are subject to the exclusive and inherent disciplinary jurisdiction of the supreme court of Mississippi.... ”

¶ 28. Judges are disciplined pursuant to Article 6, Section 177A of the Mississippi Constitution, which provides that, “upon 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.... ” Furthermore, the imposition of sanctions for judicial misconduct is a matter left solely to the discretion of the Supreme Court. Mississippi Com’n of Judicial Performance v. Russell, 691 So.2d 929 (Miss.1997). Contrary to this Court’s holding in Russell, and contrary to the Constitution, Section 9-1-25 mandates removal from office. There is no discretion for this Court to exercise. Thus, the statute cannot be a statute of discipline.

Is it a Qualification or Disqualification Statute?

¶ 29. There is no claim here that, when he took office, Judge Osborne was not qualified. Therefore, his qualifications do not seem to be in issue. However, the statute seems to provide that, for its violation, the judge became unqualified. Article 6, Section 165 of our Constitution provides for disqualification of judges. There are no provisions found therein, or anywhere else, which confer upon the legislature the power to add to the Constitutional provision any matters which would serve to disqualify a judge.

¶ 30. There are no other categories. Upon careful reflection, I can reach no other conclusion but that the statute addresses matters which are within the exclusive jurisdiction of the Supreme Court. For this reason, I respectfully concur in part, and in the result of the majority opinion.

WALLER AND COBB, P.JJ., JOIN THIS OPINION. EASLEY AND RANDOLPH, JJ„ JOIN IN PART.

SMITH, Chief Justice,

Concurring in Part and Dissenting in Part:

¶ 31. Because I conclude that Judge Solomon C. Osborne’s conduct at issue was willful and prejudicial to the administration of justice and the sole sanction is his removal from office, I respectfully concur in part and dissent in part.

I. Prohibition on the practice of law

¶ 32. As the majority correctly notes, this Court reviews disciplinary matters de novo. Miss. Comm’n On Judicial Performance v. Teel, 863 So.2d 973, 975 (Miss.2004). However, the Court is not bound by the factual findings and recommendations of the Commission. Id. That is, we may impose additional sanctions. Id.

¶ 33. Miss.Code Ann. § 9-9-9 (Rev. 2002) states as follows:

The county judge shall not practice law in any of the courts of the county wherein he holds court, but this prohibition shall not prohibit the judges of the county courts from practicing in any of the courts so far as to enable them to bring to a conclusion cases actually pending when they were appointed or elected, in which such county judges were then employed as provided in section 9-1-25, Mississippi Code of 1972, for judges of the circuit court and chancellors.

(emphasis added). A county court judge is allowed six months to bring his practice to a conclusion. See id. § 9-1-25.

¶ 34. I agree with the majority that Judge Osborne has engaged in the practice of law after appointment as county judge. In my opinion, he is in violation of Miss. Code Ann. §§ 9-1-25 and 9-9-9, as well as Canons 1, 2A, 2B, 3A and 4G of the Mississippi Code of Judicial Conduct. His conduct constituted willful misconduct and conduct prejudicial to the administration of justice in violation of Miss. Const. art 6, § 177A. However, I disagree with the majority as to the appropriate sanction for Judge Osborne.

¶ 35. As the Commission and majority point out, this Court has never interpreted Section 9-9-9. The first determination in construing a statute is whether it is ambiguous. Allred v. Yarborough, 843 So.2d 727, 729 (Miss.2003) (quoting City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992)). This Court, “[w]hen called upon to apply statutes to specific factual situations, ... applies] the statutes literally according to their plain meaning, and there is no occasion to resort to rules of statutory interpretation where the language used by the legislature is plain, unambiguous and conveys a clear and definite meaning.” Davis v. Pub. Employees’ Ret. Sys., 750 So.2d 1225, 1233 (Miss.1999). The Court “will not impute an unjust or unwise purpose to the legislature when any other reasonable construction can save it from such imputation.” Allred, 843 So.2d at 728-29. “[T]he ultimate goal of this Court in interpreting a statute is to discern and give effect to the legislative intent,” regardless of whether the statute is ambiguous or not. Id. at 729.

¶ 36. Section 9-9-9 is not ambiguous. Under the plain language of the statute, county judges are prohibited from practicing law. The Legislature supplied but one exception to this prohibition — the “winding down” period of six months. Under the ordinary meaning of this statute, the winding down period has two components. First, it applies only to “cases actually pending” when a county judge was appointed or elected. To benefit from this exception, the judge must have first been employed in the case at the time he was elected or appointed and second, the case should have been filed with a court.

¶ 37. I can envision no rational, good faith interpretation of the term, “bring to a conclusion cases actually pending,” which would allow the filing of a new complaint. To the contrary, the filing of a complaint begins a case. Rule 3 of the Mississippi Rules of Civil Procedure, provides that “[a] civil action is commenced by filing a complaint with the court.” The comment to Rule 3 provides, “The first step in a civil action is the filing of the complaint with the clerk or judge.” Thus, Judge Osborne’s assertion that he filed complaints to “bring to a conclusion” some of his cases, works to only compound his wrongful conduct.

¶ 38. The plain and ordinary meaning of the phrase “cases actually pending” denotes a controversy or dispute in which a complaint or petition has been filed with a court. This is a reasonable interpretation, and construing this provision in any other way would be to impute an unwise purpose to the Legislature. Until an action is initiated in court by the filing of a complaint or petition, there is no case actually pending. Thus, the cases at issue here were not actually pending until Judge Osborne filed the petitions or complaints after he took judicial office.

¶ 39. Moreover, Judge Osborne does not benefit from the winding down provision. It escapes me how filing complaints or petitions after he was appointed could be deemed winding down Judge Osborne’s law practice. To the contrary, after being appointed as a judge, filing a complaint or petition with a court creates a “case actually pending.” Thus, logically, it is difficult for me to see how filing petitions and complaints could simultaneously be the beginning of cases and the winding down of Judge Osborne’s practice. Judge Osborne should have been initially sending these clients to other counsel rather than filing new litigation. It is little wonder that this issue is one of first impression. The statute and canons are so obvious, apparently, no prior judge has attempted what Judge Osborne has done in filing cases after being appointed to the position of a judge. Again, I must emphasize the clear language of the already cited Miss.Code Ann. Sec. 9-9-9 (Rev.2002) unequivocally states that county judges, during the wind down period, are not prohibited “from practicing in any of the courts so far as to enable them to bring to a conclusion cases actually pending when they were appointed or elected .... ” (emphasis added). Some might argue that a “case actually pending” is one that a lawyer has in his or her office awaiting resolution. But how could any reasonable person interpret this statute in any way other than “cases actually pending” means “court eases actually pending?”

II. Disrepute of judicial office

¶ 40. Pursuant to the Mississippi Constitution, the Court may “remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for ... conduct prejudicial to the administration of justice which brings the judicial office into disrepute.” Miss. Const. art. 6, § 177A. As the Court has stated, the conduct need not be in bad faith — rather, it may be the result of negligence or ignorance. Miss. Comm’n on Judicial Performance v. Justice Court Judge S.S., 834 So.2d 31, 34-35 (Miss.2003). That is, the Court has held:

While the conduct of Respondent, in our opinion, amounted to willful misconduct in office and conduct prejudicial to the administration of justice, bringing the judicial office into disrepute, we recognize ... that a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. The result is the same regardless of whether bad faith or negligence and ignorance are involved and warrants sanctions.

Id. (quoting Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 875 (Miss.2000)) (internal citations omitted).

¶ 41. The Commission argues that Judge Osborne’s conduct was prejudicial to the administration of justice and that it brings the judicial office into disrepute. Judge Osborne argues generally that he was ethically required to conclude the matters for which his legal services had been retained.

¶ 42. I would find that Judge Osborne clearly committed conduct that was prejudicial to the administration of justice, thereby bringing the judicial office into disrepute. The Legislature has determined that a sitting county court judge shall refrain from practicing law, except to the extent he is concluding his practice within six months of assuming the bench. Judge Osborne repeatedly violated this prohibition, filing new lawsuits and actions after he took office. Such actions most certainly bring the judicial office into disrepute because they create the appearance of impropriety.

III. Propriety of removal

¶ 43. Under this Court’s established jurisprudence, in a judicial misconduct proceeding, “[t]he sanction imposed should be consistent with other like cases.” Miss. Comm’n on Judicial Performance v. Willard, 788 So.2d 736, 745 (Miss.2001). The sanction should also fit the offense. Miss. Comm’n on Judicial Performance v. Warren, 791 So.2d 194, 197 (Miss.2001).

¶ 44. This is a case of first impression— as such, there are no “like cases” in Mississippi. The Commission’s attorneys argued for Judge Osborne’s removal. The Commission instead found and recommended to this Court that a public reprimand “fits the offense” Judge Osborne committed and is, therefore, the appropriate penalty. I disagree with the Commission and instead agree with the Commission’s attorneys.

¶ 45. Despite the fact that we have no judicial authority to guide our disposition of this matter, the most important form of governmental proclamation, made by elected legislative representatives of the People, mandates the appropriate path in this case: Judge Osborne must be removed from office. It is true that this Court is the trier of fact in judicial misconduct cases and reviews de novo the Commission’s recommendations. But here, the Legislature has mandated that we remove Judge Osborne from office. As the majority freely admits, we must read Sections 9-9-9 and 9-1-25 together in this case. The majority determines that, based on Section 9-1-25, Judge Osborne had six months to wind down his practice. Thus, the majority relies on Section 9-1-25 for the duration of the allowable winding down period. However, in the next breath, the majority refers to removal from office as “an extreme and draconian measure,” a measure which “in no way ... fit[s] this offense.” But the Legislature stated in Section 9-1-25 that “any person offending against this prohibition shall be guilty of a high misdemeanor and be removed from office.'” (emphasis added). Whether this is a draconian measure or not, it is the law, and we are not in a position to ignore it.

¶ 46. It is not the province of this Court to amend or enact legislation. Absent some finding of constitutional infirmity, the Court is bound to apply statutes as they are written. Separation of powers is a fundamental and core principle in our form of government. Concluding that Judge Osborne should be sanctioned in any manner less severe than removal from office would be an usurpation of our esteemed Legislature’s power. As we are all aware, this Court applies and interprets the laws that the Legislature sees fit to pass and the Governor chooses to sign— the Court does not, however, write the laws of this State. Moreover, the Court does not pass on the wisdom of duly-enacted statutes — it simply applies and interprets those laws. Further, the Court does not usurp, seize or otherwise assume the power of either coequal branch of our State government — rather, the Court cooperates with them to ensure that justice will prevail in each and every case that is tried in the State of Mississippi. Justice is best served by the fair, even-handed application of statutes in the form that the Legislature wrote them. The Legislature has set the punishment for county judges that violate Section 9-9-9, and the Court is bound to apply that sanction.

¶ 47. When one considers the similarities between the county, circuit, and chancery courts, it is a bit surprising that the majority treats county courts differently in the context of Section 9-1-25. Judges of these courts are all elected by the People to four-year terms. See Miss.Code Ann. §§ 9 -7-1, & -5-1 (Rev.2002). They must be practicing lawyers for five years, at least twenty-six years old, and citizens of this State for at least five years. Miss. Const. art. 6, § 154; Miss.Code Ann. § 9-9-5 (Rev.2002). Chancellors, as well as county and circuit court judges, are members of the Conference of Mississippi Judges. As I have already noted, Miss. Code Ann. § 9-1-25 applies to county, circuit, and chancery court judges. It provides a six-month winding down period after a judge takes the bench. If he or she violates that provision, the statute mandates removal from office.

¶ 48. Section 9-1-25 clearly applies to each of these courts. But the majority, in complete conflict with separation of powers and elementary statutory construction principles, chooses to read out the legislatively mandated sanction applicable to a county judge for violating Section 9-9-9. There could be very little argument that Judge Osborne could not avoid removal for his actions if he were a circuit or chancery court judge. Such an argument strains credibility. The question becomes, then, why does the majority treat a county court judge differently? I can discern no statutory, precedential, or public policy basis that supports the majority’s obvious preferential treatment in non-removal of a county court judge in this context.

¶ 49. In the case of In re Collins, 524 So.2d 553, 554 (Miss.1987), a county court judge conducted hearings “off the record,” used county inmate labor for personal purposes, concealed a DUI conviction and fined certain defendants in excess of statutory máximums. Id. at 557. Five members of the Commission recommended a public reprimand, but one member dissented and recommended removal. Id. This Court removed Collins. I find that Judge Osborne’s conduct of practicing law while a county court judge is more serious than the violations in Collins. I also note that Judge Osborne repeatedly violated this prohibition and clearly developed a pattern of conduct in continuing to file new cases in state and federal court, and continued to receive pleadings and correspondence on behalf of clients after becoming a county judge. Collins had at least one prior informal appearance before the Commission. Id. at 553-54. Here, although Judge Osborne has no prior Commission appearances, (he could not as he was not a member of the judiciary until this appointment), he has at least one prior Mississippi Bar Complaint Tribunal Cause where he was publicly reprimanded for unethical behavior. See Mississippi Bar Complaint Tribunal Cause No. 96-B-1194. Judge Osborne has not “acknowledged” his wrongdoing here. All Judge Osborne has admitted is that he filed eight cases “winding down” his law practice. He denies any wrongdoing, denies he violated any statute, canon or the Constitution, and denies that he should be sanctioned. In contrast to Judge Osborne, a perfect example of a judge who admitted all allegations, accepted full responsibility and actually joined in the recommended sanctions for such conduct is Judge Darwin Maples. Notwithstanding my analogy of this case with Collins and Maples, at the end of the day, the cold hard fact is that the majority readily acknowledges that Miss. Code Ann. § § 9— 9-9 and 9-1-25 must be read in pari mate-ria. I wholeheartedly agree. And when, I read these two statutes together, I come to the conclusion based on the unequivocal and unambiguous language in these two statutes, that if a judge offends these statutes, that judge “shall be guilty of a high misdemeanor and be removed from office.” Miss.Code. Ann. § 9-1-25 (Rev.2002) (emphasis added). The majority acknowledges that these statutes have been violated; therefore, the majority’s assertion that this Court somehow has discretion in the appropriate sanction once these statutes have been violated is contrary to the clear statutory language. Our course of action should be clear. Like it or not, Judge Osborne must be removed from office.

¶ 50. Therefore, under the general authority of this Court in disciplinary matters, and Miss. Const. Art. 6 § 177A, I would remove Solomon C. Osborne from office as County Judge for Leflore County.

¶ 51. For these reasons, I respectfully concur in part and dissent in part.

CARLSON AND RANDOLPH, JJ., JOIN THIS OPINION.

      . It is quite interesting to consider that, because of his violation of Miss.Code Ann. 9-1-25, we are visiting a punishment (public reprimand) upon Judge Osborne which the statute does not authorize.

      . Supreme Court Justices and Court of Appeals Judges are also members of this organization, and I have absolutely no doubt that this Court would remove such a judge from office if he or she violated the prohibition on practicing law.

      . Judge Maples made a full admission in that case. In fact, he admitted all the allegations in the Commission’s formal complaint. These allegations included that Maples: released a number of criminal defendants in unusual or irregular manners following the imposition of sentence; entered orders relative to the housing and custody of criminal defendants without notice or authority; ordered that the records of criminal defendants be expunged without notice or authority, and; set aside judgment in bond cases without notice or authority. This Court concluded:
      The Respondent submitted his resignation effective July 20, 1991, and resigned his judicial office on that date. In execution of this agreed Statement of Facts and Recommendations, the Respondent agrees that he will not serve in a judicial office, file to run for future judicial office, or file a certificate with the Supreme Court for designation as a senior Judge.

        In re Maples, 611So.2d 211, 211 (Miss.1992).


author: RANDOLPH, Justice,

text:
    UNIVERSITY OF MISSISSIPPI MEDICAL CENTER v. Debra Jenkins ROBINSON.
    No. 2003-IA-00152-SCT.
    Supreme Court of Mississippi.
    July 1, 2004.

      Whitman B. Johnson, III, Jackson, Marjorie Selby Busching, attorneys for appellant.
    Antwayn Lavell Patrick, Oxford, Hiawatha Northington, Katrina M. Bibb Gibbs, Clinton, attorneys for appellee.
   RANDOLPH, Justice,

for the Court.

¶ 1. A suit was filed in 2002 regarding injuries suffered by a child during a medical procedure in July of 1995. The University of Mississippi Medical Center (UMC) argues that at the time of the injury the controlling version of the Mississippi Tort Claims Act (MTCA) provided a strict one year statute of limitations and that the failure to file the claim prior to the running of such rendered the claim barred. Debra Jenkins Robinson, the mother of the child, contends that a subsequent amendment to the MTCA tolled the running of the statute of limitations. UMC counters arguing that any subsequent amendment to the MTCA which revives a barred claim is unconstitutional.

¶ 2. Per Article 4, § 97 of the Mississippi Constitution, we hold that the March 2002 amendment to § 11-46-11(4) is unconstitutional. We reverse and render.

FACTS

¶ 3. In July of 1995 Debra Robinson took her six-week-old son Kenny to the University of Mississippi Medical Center in Jackson, Mississippi, because she suspected he had a bowel obstruction. He did, and an emergency colostomy was performed. While the procedure went well, Kenny suffered chemical burns on his left arm from where he was intravenously administered a large dosage of calcium chloride. Two separate doctors recorded in his medical chart the presence of burns on his arm. One remarked that the damaged skin was actually “sloughing” off the arm. The burns have resulted in scars and an alleged reduction of use in the arm.

¶ 4. In 1993 the Legislature enacted the Mississippi Tort Claims Act, which codifies the immunity of the state and state employees in certain situations. See Miss. Code Ann. § 11-46-1 (“The term ‘employee’ shall also include any physician ... or other health care practitioner employed by the University of Mississippi Medical Center”). The MTCA has a one-year statute of limitations. Miss.Code Ann. § 11 — 16-11 (Rev.2002).

¶ 5. Counsel for Robinson requested medical records from UMC in January of 1996 and again in both April and May of 1996. Nevertheless, no suit was filed until January of 2002. At that point the one-year statute of limitations had clearly run, and the claim was barred. However, in March of 2002, the Legislature amended § 11-46-11(4) of the MTCA. As will be discussed, Robinson contends that the amended MTCA cleared any confusion regarding the applicability of the minors savings clause. Miss.Code Ann. § 11-46-11(4). Relying on Article 4, § 97 of the Mississippi Constitution, UMC contends that the 2002 amendment to § 11-46-11 is unconstitutional.

¶ 6. The trial court denied UMC’s motion for summary judgment. This Court granted UMC permission to bring this interlocutory appeal on the issue of the constitutionality of the § 11-46-11. See M.R.A.P. 5. As required by M.R.A.P. 44(a) and M.R.C.P. 24(d), counsel for UMC certified that he served a copy of UMC’s brief on the Attorney General. No response was filed on behalf of the State.

ANALYSIS

I. The Constitutionality of the Several Amendments to § 11-46-11.

¶ 7. At the outset, we recount the relevant amendments to the MTCA. The MTCA was enacted in 1993 to create a limited waiver of sovereign immunity of the state and its political subdivisions. Marcum v. Hancock County Sch. Dist., 741 So.2d 234, 236 (Miss.1999). As first enacted, the MTCA provided a strict one-year statute of limitations. Id. In Marcum, this Court considered whether the general savings clause applies to the MTCA and held “that § 11-46-11’s one (1) year statute of limitations is not tolled by [the general] minor savings clause.” Id. at 236-38 (emphasis added). “The MTCA clearly mandates that a one (1) year statute of limitations be applied to any actions brought under the Act.” Id. See also Stockstill v. State, 854 So.2d 1017, 1021 (Miss.2003); Hays v. Lafayette County Sch. Dist., 759 So.2d 1144, 1147-48 (Miss.1999).

¶ 8. Robinson contends that as a result of the holding in Marcum, the Legislature amended § 11^46-11 to include a savings clause. In April of 2000, subsection (4) was added to § 11-46-11. Subsection (4) provided:

From and after May 15, 2000, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

S.B. 2974, 2000 Miss. Laws ch. 315. The practical result of this amendment is that as of May 15, 2000, any injured party under disability of infancy or unsoundness of mind whose remedy is not yet barred by the statute of limitations may avail themselves of the savings clause. Because it was prospective in nature, this amendment created no constitutional issues. Indeed, this amendment only enhanced or extended the rights of actions still existing. It did not include any retroactive language nor did the language indicate that the Legislature sought to revive any barred claims.

¶ 9. In 2002, the Legislature again amended § 11-46-11 by changing the effective date of subsection (4). This final version, and that which is presently before the Court, provides:

(4) From and after April 1, 1993, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

Miss.Code Ann. § 11-46-11 (Rev.2002). It is this second amendment which today we find unconstitutional under Miss. Const. § 97.

¶ 10. Statutory interpretation is a matter of law which we review in its entirety. Wallace v. Town of Raleigh, 815 So.2d 1203, 1206 (Miss.2002). We presume a statute is constitutional unless the challenging party is able to prove unconstitutionality beyond a reasonable doubt. Id. See also Miss. Power Co. v. Goudy, 459 So.2d 257, 263 (Miss.1984). All doubt must be resolved in favor of the validity of a statute. Loden v. Miss. Pub. Serv. Comm’n, 279 So.2d 636, 640 (Miss.1973). It is our duty to adopt a construction of the statutes which purges the legislative purpose of any constitutional invalidity, absurdity, or unjust inequality. Fortune v. Lee County Bd. of Sup’rs, 725 So.2d 747, 752 (Miss.1998); Cole v. Nat'l Life Ins. Co., 549 So.2d 1301, 1305 (Miss.1989). Our primary objective when construing statutes is to adopt that interpretation which will meet the true meaning of the Legislature. Stockstill, 854 So.2d at 1023.

¶ 11. As originally enacted, § 11-46-11 required that Robinson’s claim be filed within one year of the date of the tortious conduct. Unfortunately, because no claim was filed by the end of July 1996, Robinson’s claim was time barred. “The effect of the attachment of the bar of the statute of limitations appears well-established in Mississippi.” Cole, 549 So.2d at 1305. This bar is a vested right which cannot be revived. Id. (citations omitted); see also Miss.Code Ann. § 15-1-3 (Rev. 2003) (“The completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy.”). The running of the statute of limitations is the point where one’s right to pursue a remedy is extinguished and another’s vested right in the bar rises.

¶ 12. Article 4, § 97 of the Mississippi Constitution provides: “The legislature shall have no power to revive any remedy which may have become barred by lapse of time, or by any statute of limitations of this state.” The principle espoused in § 97 of the 1890 constitution is firmly grounded under Mississippi law. See Woodman v. Fulton, 47 Miss. 682, 684 (1873) (“that the bar created by the statute of limitations ... once vested, cannot be taken away by legislative action.”). In Davis v. Minor, 2 Miss. 183 (1835), Chief Justice Sharkey declared for the Court that “it is clear that the moment the remedy was gone, by the running of the statute, the right was gone also ... and [a party] could not be deprived of the privilege ... by subsequent legislation.” Id. at 189. There are compelling reasons for our constitution to forbid resurrecting a barred claim:

It is reasonable and just, and, indeed, altogether important, that some period of time by legislative enactment should be fixed, beyond which debts and property cannot be recovered; otherwise the debtors or owners would never be free from liability to useless litigation, and courts of justice would be thronged with suitors, seeking, either ignorantly or fraudulently, to possess themselves of that which in justice they should not claim to recover.

Id. at 190.

¶ 13. This Court recognized the adoption of the MTCA’s savings clause in dicta. See Stockstill, 854 So.2d at 1022. However, this question of unconstitutionality was not brought before us then. “[W]here an amended statute remedially lengthens a statute of limitations, [we] will apply the amendment to existing causes.” Hollingsworth v. City of Laurel, 808 So.2d 950, 954 (Miss.2002) (citations omitted). Of course to do so requires that the amendment or statute be constitutional. Fortune, 725 So.2d at 752-53.

¶ 14. In the case sub judice, by the time the Legislature first amended § 11-46-11 to include a ¡minor savings clause, Robinson’s claim was barred, and thus could not be revived. Though the Legislature enjoys a great deal of authority under the Mississippi Constitution, its second attempt to amend § 11-46-11(4) is specifically prohibited by § 97.

¶ 15. Moreover, the facts of the instant case do not support creating an exception to Miss. Const. § 97 as Robinson now requests. The compelling argument to create a policy exception to protect minors is handicapped by the fact that no suit was filed until January of 2002. Robinson began pursuing a claim several months before the running of the statute of limitations, but failed to give notice of claim or file a timely suit. Her argument on appeal is not persuasive because her claim could have been timely prosecuted.

¶ 16. Further, the injury was obvious, and Robinson had retained counsel by January 1996. At that time, and again in both April and May of 1996, counsel for Robinson requested medical records on behalf of the child. Thus, Robinson knew that a putative cause of action existed.

¶ 17. Certainly public policy dictates that where possible this Court should apply the law in a way that favors protecting minors. Likewise, in this instance, it clear that the Legislature realized that the MTCA lacked a minor savings clause and intended to remedy this. Nevertheless, public policy and legislative intent must give way to specific constitutional principles. This Court “will enforce a statute whose retroactivity is expressed with the “clearest and most positive expression” so long as the statute is not unconstitutional.” Fortune, 725 So.2d at 753 (dictum).

CONCLUSION

¶ 18. Robinson’s claim was barred by the applicable statute of limitations prior to the codification of a minors savings clause in the MTCA.

¶ 19. The March 2002 amendment to § 11-46-11(4) is unconstitutional to the extent that it makes the savings clause applicable to all claims since April 1, 1993. However, the savings clause as first enacted in April of 2000 is valid and enforceable. Those claims in existence on May 15, 2000, are subject to the savings clause.

¶ 20. The Legislature is invited to amend § 11-46-11 in accordance with this opinion. Until such is done, the application of the savings clause will differ from that which is provided in the code.

¶21. Accordingly, the circuit court erred in denying UMC’s motion for summary judgment. We reverse the circuit court’s judgment, and we render judgment here for UMC finally dismissing Robinson’s complaint and this action with prejudice as barred by the applicable statute of limitations.

¶ 22. REVERSED AND RENDERED.

SMITH, C.J., WALLER AND COBB, P. JJ., CARLSON AND DICKINSON, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.