author: EASLEY, Justice, CARLSON, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Nicki M. BOLAND.
    No. 2007-JP-00661-SCT.
    Supreme Court of Mississippi.
    Feb. 28, 2008.

      Luther T. Brantley, III, Darlene Ballard and Ayanna Batiste, attorneys for appellant.
    Alex A Alston, Jr., attorney for appel-lee.
   EASLEY, Justice,

for the Court.

¶ 1. On December 8, 2005, the Mississippi Commission on Judicial Performance (Commission) filed a formal complaint against Nicki M. Boland, Justice Court Judge for Hinds County, District One, Mississippi, alleging judicial misconduct which was actionable pursuant to Article 6, Section 177A, Mississippi Constitution of 1890, as amended. Judge Boland filed an answer to the formal complaint on February 21, 2006, denying the claims. The Commission held hearings on August 21, 2006, and November 10, 2006, in this matter and filed its Findings, Conclusions and Recommendations on February 20, 2007. Judge Boland then filed an objection to the Commission’s findings and recommendation.

¶ 2. The Commission filed Commission Findings of Fact, Conclusions of Law and Recommendation on April 24, 2007, with this Court. Specifically, the Commission found that Judge Boland’s conduct violated Canons 1, 2 A, 3 B(4), 3 B(5), and 3 C of the Code of Judicial Conduct, and that it constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Article 6, Section 177A, of the Mississippi Constitution of 1890, as amended. The Commission recommended to this Court that Judge Boland publicly be reprimanded and assessed the costs of this proceeding in the amount of $4,108.42. This Court adopts the Commission’s recommendation. However, we find that Judge Boland’s conduct violated only Canons 1, 2 A, and 3 C(l) of the Code of Judicial Conduct.

FACTS

¶ 3. On December 8, 2005, the Commission'filed a formal complaint against Judge Boland for a number of statements she allegedly made at a National Drug Court Institute training conference break-out session in Dallas, Texas, on September 16, 2005. The Commission asserted that Judge Boland’s conduct violated Canons 1, 2 A, 2 B, 3 B(2), 3 B(4), 3 B(5), and 3 C(l) of the Code of Judicial Conduct. Further, the Commission alleged that Judge Boland’s conduct violated Section 177A of the Mississippi Constitution of 1890, as amended, since her conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Judge Boland filed her answer and affirmative defenses, denying the allegations.

¶ 4. The Commission held hearings over the course of two days on August 21 and November 10, 2006. During the hearings, a number of witnesses for the Commission testified to Judge Boland’s actions. Judge Boland also testified and called a number of witnesses to testify on her behalf.

5. Shirley Jackson-Thomas, a grants manager for Hinds County, attended the conference in Dallas in 2005. Also attending from Mississippi, along with Jackson-Thomas, were: Malcom Harrison, Hinds County prosecutor; Denise Pendleton, drug court coordinator; Jennifer Riley-Collins, an attorney; Patricia Colwell Hin-son, a juvenile drug court team member; and Judge Boland. Judge Rogelio Flores from California was the group’s facilitator at the conference. In addition, Carolyn Hardin, the drug court institute director, was present at the conference.

¶ 6. Jackson-Thomas stated the group was not progressing fast enough during its break-out session, therefore they worked through lunch. Jackson-Thomas observed that Judge Boland was agitated, anxious, and probably frustrated at this point. She stated that the group was giving suggestions concerning how to structure the program when Judge Boland went into a “tirade” and ceased to be open to any of the group’s suggestions. Jackson-Thomas related that Judge Boland told the group about her involvement with the drug court. Judge Boland said she felt that she was not getting any support from other justice court judges or the board of supervisors. In addition, Jackson-Thomas testified that Judge Boland said the members of the board of supervisors were not intelligent and that some justice court judges did not have degrees. Judge Boland told them that she was going to make sure that if the justice court judges did not have law degrees, then they at least should have college degrees. Furthermore, Jackson-Thomas stated that Judge Boland told Pendleton that she needed to find another job because there was not going to be a drug court. Judge Boland told Riley-Collins: ‘You can go home because you’re not on this team anymore.” Judge Boland also stated that “[a]nd you African-Americans — all you African-Americans can go to hell.”

¶ 7. Jackson-Thomas stated that she was “shocked,” “appalled,” “embarrassed,” and “angry” as a result of Judge Boland’s outburst. Thereafter, everyone gathered their belongings and left the break-out session. As a result of the remarks made by Judge Boland, many of the Mississippi participants left the conference and flew home to Mississippi. Jackson-Thomas, however, returned to the conference the next day to pick up reimbursement forms. Later, Jackson-Thomas received an apology letter from Judge Boland; however, she testified that she felt that the letter lacked sincerity.

¶ 8. Hinson testified that when she and other group members asked questions about the drug-court process, Judge Bo-land challenged their questions. At some point, Hardin entered the room, and Judge Boland became angry. Judge Boland explained that she had worked hard on the project and felt that everyone was fighting her at every turn. Hinson stated that Judge Boland then became red-faced and yelled at Riley-Collins to “get the hell out” of the room. Hinson stated that she was “stunned” and “shocked” by Judge Bo-land’s behavior.

¶ 9. In addition, Hinson stated that Judge Boland said something to the effect that “African-Americans in Hinds County can go to hell for all I care.” After this outburst, Hinson stated that she was embarrassed and ashamed to be in the room, as she was the only other Caucasian person present. Hinson stated, “I was professionally and personally embarrassed to be a white person in a room with predominantly African-Americans because — and I did not want anyone in that room to think that anything she said spoke for me in any way, shape, or form.” Hinson received an apology letter which she believed to be argumentative, defensive, and insincere. Hinson stated that she had gone shopping with Judge Boland on the previous night. While at the mall, Judge Boland had told Hinson that she did not feel well.

¶ 10. Riley-Collins stated that when Hardin walked into the break-out session, Judge Boland told Riley-Collins, “You know, you can just get the hell out.” Shortly thereafter, Judge Boland told Riley-Collins, “Your attitude — your attitude stinks. You know, you’re not part of this process. You can just get the hell out.” Later, Riley-Collins stated that Judge Bo-land was frustrated when she said to forget about funding the program and stated, “As far as I’m concerned all African-Americans in Hinds County can go to hell.” At this point, Riley-Collins gathered her belongings and left, along with Jackson-Thomas and Harrison. Although Riley-Collins did not mention specific comments, she stated that Judge Boland also made derogatory comments about other justice court judges and the Hinds County supervisors. Judge Boland also wrote Riley-Collins an apology letter. However, Riley-Collins felt that the letter was self-centered and was insincere.

¶ 11. Malcolm Harrison, Hinds County prosecutor, stated that during the breakout session, Judge Boland began screaming and yelling and went into a ten-to-fifteen-minute tirade in which she lambasted everyone. He related that Judge Bo-land stated that she was not supported by Hinds County and individuals in the county such as the members of the board of supervisors and other justice court judges. Harrison also heard Judge Boland’s comment that all African-Americans in Hinds County could go to hell.

¶ 12. Harrison stated that he felt embarrassed by Judge Boland’s comments, as an African-American, a lawyer, and a Mississippian. When Judge Boland made her remark about African-Americans, Harrison left the room and changed his travel reservations to return to Jackson the next day.

¶ 13. Denise Pendleton, the Hinds County drug court coordinator, testified that she was a full-time employee for the drug court. She said that, during the session, Judge Boland became agitated and frustrated. At one point, Judge Bo-land told Riley-Collins that she could leave if she did not want to be part of the program. When Hardin, the National Drug Court Institute representative, entered the break-out session, Judge Boland became upset. Judge Boland asked Hardin why she was there and who had asked her to come to the session. At this point, Judge Boland had her “outburst” and stated that some of the other justice court judges “were on the same level as the people that came before her, which is a GED level.” Judge Boland also stated that the members of the Hinds County Board of Supervisors “were ignorant and lacked leadership.” Judge Boland also stated that she was going to leave and that she was “through with the drug court.” She also stated that all African-Americans in Hinds County could go to hell. Pendle-ton received an apology letter from Judge Boland. However, like the others, Pendle-ton did not believe that the letter was sincere.

¶ 14. Judge Flores and Hardin both provided testimony to the Commission via deposition. Their testimony was consistent with that of the Hinds County team members who were present when Judge Boland made her statements.

¶ 15. Testifying on Judge Boland’s behalf were: Judge Mike Parker, United States magistrate judge for the Southern District of Mississippi; Brenda Mathis, drug court director for Hinds County; Hinds County Justice Court Judge Frank Sutton; Louise Dillon, social worker for Catholic Charities; and Captain Nate Ross with the Hinds County Sheriffs Department.

¶ 16. Judge Boland testified concerning the many organizations in which she had participated over the years. In addition, she stated that, prior to arriving in Dallas, she had worked to assist Hurricane Katrina victims. She also stated that she had felt sick prior to getting on the plane to Dallas. While in Dallas, Judge Boland stated that she could not sleep and had blacked out in a dressing room of a Dallas mall on Thursday night.

¶ 17. Judge Boland stated that she said that the supervisors were ignorant of the drug court process. She admitted that she was frustrated and that she had stated, “As far as I’m concerned, the African-American community in Hinds County can go to hell.” However, Judge Boland said that she made that comment at the same time that she stated she was going to quit, and she was exhausted at the time. She also stated that what she meant by her statement was that “people that are in drug and alcohol addiction, they’re in a living hell of their own” and that if no one wanted help, then she would leave and just perform her duty as a judge only. Judge Boland stayed at the program to get certified. She said she tried to speak to the team members and to write apology letters to them.

¶ 18. Judge Parker testified that he had met Judge Boland a few years previously and that he had provided some guidance to her about the drug-court process. He also testified as to his knowledge of Judge Bo-land’s conduct. Judge Parker stated that Judge Boland had worked hard, and that she was committed to the drug court. He also stated that he never observed Judge Boland exhibit bias, prejudice, or dishonest or unethical conduct when dealing with others.

¶ 19. Brenda Mathis had worked with Judge Boland on establishing a drug court. She stated that Judge Boland was energetic, and concerned about people, that she helped people who needed treatment, and that she made positive contributions. Mathis also stated that Judge Boland’s conduct was professional and competent, and that she was very concerned about people who appeared before her on the bench. Mathis also stated that Judge Bo-land never showed any racial prejudice.

¶ 20. Judge Sutton also had worked with Judge Boland. He said that, in his dealings with Judge Boland, he had never detected any racial bias or discrimination. In addition, he said Judge Boland was honest in her dealings with him, and that she was trustworthy and professional.

¶21. Louise Dillon performed social work and therapy for Catholic Charities. She stated that Judge Boland was her client. Dillon also stated that Judge Bo-land was a person of integrity and competence, and that she exhibited no inclination toward bias or prejudice. Dillon said she knew that Judge Boland had worked with Hurricane Katrina victims and was probably physically and emotionally exhausted prior to the conference. Judge Boland told Dillon that she had made a statement in the heat of the moment that she regretted and that she was frustrated and did not express what she meant to say. Judge Boland also told Dillon that she had told the group that she was quitting and leaving. Dillon stated that Judge Boland may have been suffering from secondary traumatic stress, which is similar to post-traumatic stress except that the traumatizing event did not personally happen to the person experiencing the stress. Dillon stated that Judge Boland had been physically exhausted when she went to Dallas and may have suffered some symptoms which may have caused her to make the uncharacteristic statements. Dillon stated that, in her opinion, Judge Boland’s statements in Dallas did not reflect her true feelings.

¶ 22. Captain Ross testified that he had known Judge Boland since the time of her election. Captain Ross, had participated in Judge Boland’s drug court by serving warrants on people who did not complete their sentences. He stated that Judge Boland had spent a considerable amount of time starting the drug court. Captain Ross said he never observed Judge Boland showing bias or prejudice and that she treated all people who appeared before her on an equal basis.

DISCUSSION

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

I. REFUSING TESTIMONY OR RESTRICTING TESTIMONY OF WITNESSES.

¶ 24. Judge Boland argues that the Commission erred by restricting some witnesses’ testimony and refusing to allow other witnesses’ testimony altogether. Judge Boland contends that during cross-examination of the Commission’s witness, Jennifer Riley-Collins, the Commission restricted testimony concerning Judge Bo-land’s interest in diversity and race relations. The record reflects that Riley-Collins testified that she had never been in the courtroom while Judge Boland conducted an adjudicatory session. When questioned whether anyone had told Riley-Collins that Judge Boland had not been fair to them in the courtroom, Riley-Collins stated that she had never spoken about Judge Boland to anyone; therefore, her answer to the question was “no.” Riley-Collins also stated that she had seen Judge Boland at the Friendship Ball, an event for individuals interested in racial relations and diversity. Riley-Collins also stated that Judge Boland was part of Leadership Jackson, however, she had seen Judge Boland for only a few minutes towards the end of the program on diversity. Clearly, counsel for Judge Boland questioned Riley-Collins concerning Judge Boland’s participation in events and organizations which sponsored diversity. In addition, Judge Boland gave a lengthy account of her participation in numerous organizations and events in her community. We find this issue to be without merit.

¶25. Judge Boland also argues that the Commission limited the cross-examination testimony of Denise Pendleton. During Pendleton’s cross-examination, counsel for Judge Boland asked Pendleton about her refusal to speak to Judge Bo-land’s counsel prior to the hearing. In addition, counsel questioned Pendleton concerning whether she went before the board of supervisors for a raise. Pendle-ton previously had stated that Judge Bo-land assisted her in getting the drug-court coordinator job and a raise in salary. When asked whether Judge Boland went to the board of supervisors to get Pendle-ton her salary, the Commission stopped further questioning on this point. The Commission stated that it wanted counsel to address the complaint. The Commission stated that the manner in which Pen-dleton was hired for her job, what kind of salary she earned, and whether she refused to speak to defense counsel were irrelevant to the proceeding.

¶ 26. This Court finds that the Commission did not err by restricting the questions concerning Pendleton’s employment, salary, and refusal to speak to defense counsel prior to the hearing. These issues were addressed, and additional questioning about these restricted issues would not have pertained to Judge Boland’s hearing on her conduct. Further, Judge Boland did not demonstrate any prejudice to her from the restriction of the testimony.

¶27. Furthermore, the record reveals that, notwithstanding the Commission’s restricted questioning, Pendleton gave a significant amount of favorable testimony concerning Judge Boland. Pendleton stated that (1) she never saw Judge Boland act in a manner similar to her actions in Dallas, (2) Judge Boland was helpful to people who came before her in court, (3) Judge Boland had never showed any bias or prejudice to anyone who appeared before her, and (4) Judge Boland bent over backwards to help people who needed help in her courtroom. In addition, Pendleton stated that she knew Judge Boland was sick while in Dallas. Pendleton also stated that the drug court received funding, and it was in operation. This Court finds that Pen-dleton’s testimony was not limited solely to Judge Boland’s actions in Dallas. While the Commission limited certain aspects of Pen-dleton’s testimony, defense counsel had an adequate opportunity to question Pendle-ton about her employment, Judge Boland’s conduct in the courtroom, and her conduct at the conference.

¶28. Judge Boland also contends that the Commission erred by failing to hear the testimony of three of her witnesses. The Commission did not allow testimony from Catouche Body, deposition testimony from Charles Griffin, and testimony from John Owen. The Commission previously had heard testimony from five other witnesses concerning Judge Boland: Judge Parker, Brenda Mathis, Hinds County Justice Court Judge Frank Sutton, Louise Dillon, and Captain Nate Ross with the Hinds County Sheriffs Department.

¶ 29. The Commission considered Body, Griffin, and Owen to be additional character witnesses. The Commission considered the proffered testimony for Body, which was, in essence, that he had worked with Judge Boland as an attorney in her court, and he had never observed any racial prejudice or bias. The Commission also reviewed Griffin’s proffered deposition videotape and deemed it character testimony. The deposition testimony from Griffin revealed that he had known Judge Boland and her husband for many years; their children were friends who had spent time at one another’s homes; Judge Boland and his wife were friends; and, he, as a practicing lawyer, had never witnessed or heard Judge Boland show bias or prejudice against individuals who appeared before her in court.

¶ 30. The Commission also heard some testimony from Owen. However, the Commission stopped Owens’s testimony and ultimately determined that his testimony concerning the drug court’s operations was not the subject of the hearing, as there were no allegations against Judge Boland concerning drug-court misconduct. Further, the Commission determined that numerous other witnesses whom it classified as character witnesses had testified concerning their working relationships with Judge Boland.

¶ 31. We find that the Commission did not err by excluding these three witnesses’ testimony. Rule 7 of the Mississippi Commission on Judicial Performance states: “[t]he judge shall be limited to two (2) character witnesses who may testify at the formal hearing; he may submit the affidavits of any other character witness he deems appropriate.”

¶ 32. Here, Judge Boland had more than two character witnesses testify on her behalf. All of Judge Boland’s witnesses testified about her character. In fact, all of Judge Boland’s witnesses, with the exception of Dillon, stated that she showed no bias or prejudice in her capacity as judge. Most of her witnesses praised her hard work, competence, and dedication to the drug court and helping others. Dillon was Judge Boland’s therapist and therefore she did not observe her in her capacity as judge. However, Dillon stated that she thought that Judge Boland’s statements were out of character and may have been due to exhaustion and secondary traumatic stress.

¶ 33. Also, the Commission heard proffered testimony and deposition testimony from the potential witnesses prior to making its decision to classify these three witnesses as character witnesses. A review of the record and the attached exhibits at issue reveal that the Commission was correct in its finding that the testimony from the three witnesses amounted to character testimony. This testimony was duplicative of that of other character witnesses who testified on Judge Boland’s behalf, and it was properly excluded by the Commission.

II. FIRST AMENDMENT.

¶ 34. Judge Boland maintains that her comments at the National Drug Court Institute certification seminar in Dallas were matters of public concern. In addition, Judge Boland claims the Commission erred in its findings, and her statements are protected by freedom of speech. She relies on this Court’s recent decision, Mississippi Commission on Judicial Performance v. Wilkerson, 876 So.2d 1006, 1012 (Miss.2004).

¶ 35. In Wilkerson, this Court dismissed a complaint against a justice court judge for expressing his views on gays and lesbians in a letter to a newspaper. Wilkerson, 876 So.2d at 1008. Wilkerson signed his letter as “[Brother] Connie G. Wilkerson” and not as a justice court judge. Id. The issues before this Court were whether Wilkerson’s statements were protected by the First Amendment to the United States Constitution and whether he violated Canons 2(A) and 4(A)(1). Id. at 1009-10. This Court held that Wilkerson’s statements were considered religious and political/public-issue speech. Id. at 1009. Accordingly, this Court imposed no sanctions against Wilkerson and dismissed the complaint. Id. at 1016.

¶ 36. In reaching its decision, this Court relied in part on Scott v. Flowers, 910 F.2d 201 (5th Cir.1990). Scott set forth the two-step test used to analyze First Amendment issues. Id. at 210 (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)). The Fifth Circuit Court of Appeals stated:

More recently, however, the Court has rejected that approach in favor of recognizing that public employees do not shed constitutional protection when they enter the workplace but nevertheless balancing those employees’ rights against the “interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). In Pickering, the Court enunciated the two-step inquiry to be used in evaluating claims of first amendment violations by public employees. First, the court must determine, in light of the “content, form, and context” of the speech in question, see Moore v. City of Kilgore, 877 F.2d 364, 369 (5th Cir.), cert. denied, 493 U.S. 1003, 110 S.Ct. 562, 107 L.Ed.2d 557 (1989), whether it addresses a “matter of legitimate public concern.” Pickering, 391 U.S. at 571, 88 S.Ct. at 1736. If it does not, the inquiry ends, for “when employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive insight by the judiciary in the name of the First Amendment.” Connick, 461 U.S. at 146, 103 S.Ct. at 1690.

Id. In Scott, the Fifth Circuit Court of Appeals also held:

If the court determines that the employee’s speech addresses a matter of public concern, it then must balance the employee’s first amendment rights against the governmental employer’s countervailing interest in promoting the efficient performance of its normal functions. In assessing the strength of the governmental interest, the court should consider such factors as “whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Rankin [v. McPherson], 483 U.S. [378] at 388, 107 S.Ct. [2891] at 2899[, 97 L.Ed.2d 315 (1987) ] (citing Pickering, 391 U.S. at 570-73, 88 S.Ct. at 1735-37).

Id. at 211.

¶ 37. Here, Judge Boland made a number of comments within a short period of time at a break-out session of the National Drug Court Institute certification seminar. The remarks made by Judge Boland and heard by a number of participants who testified or gave deposition testimony before the Commission were to the effect that (1) the members of Hinds County Board of Supervisors were ignorant; (2) some of the justice court judges were on the same level as those who appeared before her in court; (3) participant Jennifer Riley-Collins was told to “get the hell out” of the room; and (4) that African-Americans in Hinds County could “go to hell for all I care.”

¶ 38. We find that Judge Boland’s statements are not protected by the First Amendment. According to Scott, this Court must first consider whether the speech at issue in “light of the ‘content, form, and context’ of the speech in question” concerns a matter of legitimate public concern. Scott, 910 F.2d at 210. If the speech is not a matter of legitimate public concern, then the inquiry into the matter ends. Id. Judge Boland attended that conference in her official capacity as a justice court judge for Hinds County. During the course of the conference, progress slowed and Judge Boland became frustrated with the lack of progress. At this point, Judge Boland had an outburst that lasted approximately fifteen minutes, in which she made derogatory comments about fellow, community-elected officials, program participants, and the members of the community she served as a justice court judge.

¶ 39. While Judge Boland argues to the contrary, these remarks were disparaging insults and not matters of legitimate public concern. Judge Boland and other participants attended the conference to gain certification to operate a drug court in Hinds County. This conference was not a forum for expressing personal concerns about the alleged lack of educational background or demeanor of fellow judges or the alleged lack of intelligence of supervisors, nor was it the proper place for an alleged personal attack on a team participant, or an alleged attack on residents of Hinds County. That being said, this Court does not condone Judge Boland’s comments concerning the supervisors and other justice court judges, or her outburst against a fellow drug-court participant. However, these comments do not rise to sanctionable offenses, as they were an expression of her personal opinion. Therefore, this Court will address whether Judge Boland’s comment concerning African-Americans in Hinds County was judicial misconduct, which is actionable pursuant to Article 6, Section 177A, Mississippi Constitution of 1890, as amended.

¶ 40. Judge Boland attempts to liken her situation to this Court’s ruling in Wilkerson. However, Judge Boland’s actions are distinguishable from those in Wilkerson. In Wilkerson, the justice court judge wrote a letter to a local newspaper to express his religious views on the rights of gays and lesbians. Wilkerson, 876 So.2d at 1008. He signed his letter as a “brother” and made no reference to his elected position as a judge. Id. Without his permission, a radio show later aired a conversation Wilkerson had with a reporter concerning the letter. Id.

¶ 41. Here, Judge Boland was acting in her capacity as a justice court judge, seeking certification for a drug court for Hinds County, when she made her statement to a break-out group at the conference. The nature of her comment was an insult to individuals in the community in which she worked as a justice court judge. Her comment was not an expression of political or religious speech as in Wilkerson, nor was it an expression of commercial speech. Since Judge Boland’s comment was not made within the content, form or context of a matter of legitimate public concern, no further analysis is necessary by this Court. Accordingly, we find that Judge Boland’s comment was not protected by the First Amendment.

III. WHETHER JUDGE BO-LAND’S CONDUCT CONSTITUTES WILLFUL MISCONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION.

¶ 42. In judicial performance proceedings, this Court determines whether the conduct of the judge constitutes willful misconduct prejudicial to the administration of justice, which brings the judicial office into disrepute, pursuant to Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 43. This Court has held:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith....
Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.

Whitten, 687 So.2d at 747 (quoting In re Quick, 553 So.2d 522, 524 (Miss.1989)).

¶ 44. Based upon clear and convincing evidence, the Commission determined that Judge Boland violated Canons 1, 2 A, 3 B(4), 3 B(5), and 3 C of the Code of Judicial Conduct. In the case sub judice, Judge Boland had an outburst and made a statement which was derogatory in nature to African-Americans in Hinds County. Whether this behavior was actually willful is of no consequence. Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 875 (Miss.2000) (quoting In re Anderson, 451 So.2d 232, 234 (Miss.1984)). As this Court 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 as quoted in In re Anderson, supra, 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.

¶ 45. We find that Judge Boland’s conduct constitutes willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

IV. WHETHER JUDGE BOLAND SHOULD PUBLICLY BE REPRIMANDED AND ASSESSED ALL COSTS AS RECOMMENDED BY THE COMMISSION.

¶ 46. The Commission recommended that Judge Boland publicly be reprimanded and assessed all costs associated with this proceeding in the amount of $4,108.42.

¶47. Imposing sanctions is left solely to the discretion of this Court. Miss. Comm’n on Judicial Performance v. Jones, 735 So.2d 385, 389 (Miss.1999). The sanction, however, must fit the offense at issue. Boykin, 763 So.2d at 876. We find precedent for imposing a public reprimand and suspension from office for a period of time, and assessing the costs of these proceedings. However, Judge Bo-land was defeated in a recent election and no longer holds the office of Justice Court Judge for Hinds County, District One, Mississippi. Therefore, any imposition of a suspension from office is moot.

¶ 48. The Commission found that Judge Boland violated Canons 1, 2, 3 B(4), 3 B(5), and 3 C. Judge Boland disputes those findings in her brief.

1149. Canon 1 provides:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code should be construed and applied to further that objective.

¶ 50. Judge Boland argues that Canon 1 is hortatory in nature and an expression of the general overview of the Code of Judicial Conduct. Further, Judge Boland relies on Mississippi Commission on Judicial Performance v. Judge U.U., 875 So.2d 1083, 1089-90. In Judge U.U., this Court found that a chancellor violated Canon 3(A)(5) for failure to timely issue opinions, and imposed a private reprimand. Id. at 1096. This Court held that Judge U.U., based on the facts of that case, did not violate Canon 1, because his actions did not involve questions of independence and were not dishonorable. Id. at 1090. Judge Boland argued that in Judge U.U., this Court held that the language of Canon 1 “emphasizes failure which rise[s] to the level of impugning the independence and honor of the judiciary,” which did not occur in her case. Id. at 1089.

¶ 51. The comments to Canon 1 initially concern deference to judgments and rulings that rely upon the integrity and independence of a judge. See Canon 1 cmt. However, the comments to Canon 1 also address generally the need for judges to comply with the Code of Judicial Conduct, stating, “Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law.” See Canon 1 cmt.

¶ 52. In Judge U.U., the Court addressed a judge’s delay in writing opinions. The Court in Judge U.U. also considered the “facts and circumstances peculiar to [that] particular case.” Judge U.U., 875 So.2d at 1090. Here, the facts of Judge Boland’s case were that, in her capacity as judge, she made a derogatory, public statement concerning African-American members of her community. While the statement was insulting as opposed to a chargeable, dishonest act, the statement brought the integrity of the judiciary into question. Therefore, this case is distinguishable from Judge U.U. This Court finds that Judge Boland’s actions violated Canon 1.

¶ 53. Judge Boland also argues that she did not violate Canon 2. The basis of her assertion is that there was no evidence that she violated the law, and Canon 2 prohibits a judge from violating the law. Canon 2 A and its commentary provides:

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Commentary
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether, based on the conduct, the judge’s impartiality might be questioned by a reasonable person knowing all the circumstances.

(Emphasis added).

¶ 54. Canon 2 and its commentary clearly go beyond a judge’s potential violation of law. Canon 2 addresses a judge’s avoidance of the appearance of impropriety. The test for impropriety is whether a judge’s impartiality might be questioned by a reasonable person knowing all the circumstances. See Commentary Canon 2. In Judge U. U., this Court found that there was no violation of Canon 2, even though the judge “clearly exhibited a lack of diligence and timeliness in the disposition of the subject cases,” however “the facts as revealed in the record before us do not involve moral turpitude or bias so as to constitute a violation of this specific canon.” Judge U.U., 875 So.2d at 1090. Here, Judge Boland’s statement concerning the African-Americans within her community might be questioned by a reasonable person knowing all the circumstances, and thus, it meets the test for impropriety.

¶ 55. Judge Boland also contends that she did not violate Canons 3(B)(4) and 3(B)(5), since her comment was not made at an adjudicative proceeding. The record is clear that Judge Boland made her comment at a break-out session of the National Drug Court Institute in Dallas. The overview or caption of Canon 3(B) refers to “adjudicative responsibilities.” See Canon 3(B). Canon 3 B(4) provides:

Judges shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacities, and shall require similar conduct of lawyers, and of their staffs, court officials, and others subject to their direction and control.

Canon 3 B(5) provides:

A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge’s direction and control to do so. A judge shall refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment and shall require the same standard of conduct of others subject to the judge’s direction and control.

The comments that directly follow Canons 3(B)(1)-(4) and the comments directly following Canon 3(B)5 are written in terms of “proceedings.” We agree with Judge Boland’s position that she did not violate Canons 3(B)(4) and (5). While Judge Bo-land’s comment was made in her capacity as a judge, the comment was not made at an adjudicative proceeding. Therefore, the Commission erred by finding that Judge Boland violated Canon 3(B)(4) and (5).

¶ 56. Lastly, Judge Boland argues that she did not violate Canon 3(C). More specifically, Judge Boland contends that: (1) no one addressed the provisions of Canon 3 at the hearing; (2) the Commission never specified which subsection of Canon 3(C) that she allegedly violated; (3) she has never violated any of the subsections; and (4) Canon 3(C) is simply irrelevant. Canon 3 C provides:

(1) A judge shall diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and shall cooperate with other judges and court officials in the administration of court business.
(2) A judge shall require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.
(3) A judge with supervisory authority for the judicial performance of other judges shall take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.
(4) A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.
(5) A judge shall not appoint a major donor to the judge’s election campaign to a position if the judge knows or learns by means of a timely motion that the major donor has contributed to the judge’s election campaign unless
(a) the position is substantially uncompensated;
(b) the person has been selected in rotation from a list of qualified and available persons compiled without regard to their having made political contributions; or
(c)the judge or another presiding or administrative judge affirmatively finds that no other person is willing, competent and able to accept the position.

¶ 57. Judge Boland is correct in her assertion that the Commission did not specify which of the subsections of Canon 3(C) that she allegedly violated. A review of the record reveals that the only subsection of Canon 3(C) at issue before this Court is subsection (1). Judge Boland volunteered to attend the drug court training in Dallas. She attended the conference in her official capacity as a judge. While at the conference, she made a derogatory comment. The statement placed Judge Boland’s impartiality at issue. In addition, her actions lacked professional courtesy and cooperation with others in the administration of court business. Accordingly, we find that Judge Boland violated Canon 3(C)(1).

¶ 58. In determining the appropriate sanction for each case before this Court, we review mitigating factors pursuant to this Court’s holding in In re Baker, 535 So.2d 47, 54 (Miss.1988). In Mississippi Commission on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), this Court modified Baker to apply generally to the determination of all sanctions in judicial misconduct proceedings rather than merely to. apply to the question of public reprimand. We now examine the appropriateness of sanctions here based on the following factors:

(1) The length and character of the judge’s public service.

¶ 59. Judge Boland held her position from January 2004 until her recent defeat. The Commission’s and Judge Boland’s briefs, Judge Boland’s testimony, and other witnesses testimony contained information concerning the judge’s abundant public service. Judge Boland has worked on a large number of projects within the Hinds County community and has assisted or implemented a number improvements within the Hinds County court system.

(2)Whether there is any prior case law on point.

¶ 60. Judge Boland argues that there is no precedent for giving a public reprimand for her statements. This is incorrect. In Mississippi Judicial Performance Commission v. Walker, 565 So.2d 1117, 1126 (Miss.1990), this Court imposed a public reprimand for one offense. In Walker, a circuit court judge jailed a litigant for more than twenty-four hours without bond because of an alleged slur against the judge. Id. at 1125. In In re Anderson, 451 So.2d 232, 234 (Miss.1984), this Court also imposed a public reprimand where a judge failed on three occasions to issue writs of garnishments. These cases demonstrate that a public reprimand is appropriate whether viewed as one occurrence or many occurrences of the same offense.

¶ 61. Furthermore, this Court has created precedent for imposing a thirty-day suspension, in addition to a public reprimand and costs, for a judge with no prior pattern of inappropriate conduct. Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 216 (Miss.2006). In Sanford, the judge requested that an officer arrive late to court so that first-offense, driving-under-the-influence charges could be dismissed against a party. Id. at 210. Despite no evidence of a pattern of inappropriate conduct, this Court imposed a public reprimand, thirty-day suspension, and assessment of costs. Id. at 218. This Court held that “we now disagree that a public reprimand, alone, is the appropriate sanction for a judge who engages in such egregious conduct which undermines our system of justice.” Id. at 217. While Judge Boland made a derogatory comment as opposed to dismissing charges against a defendant, her actions also were egregious and undermined our system of justice.

(3) The magnitude of the offense and the harm suffered.

¶ 62. Judge Boland, in her official capacity as a judge, made a derogatory and offensive comment in a drug court seminar. This action involved Mississippi team members and national drug court representatives. All of the witnesses who attended the conference and testified before the Commission stated that they were shocked, appalled, and embarrassed by Judge Boland’s statement.

(4) Whether the misconduct is an isolated incident or evidences a pattern of conduct.

¶ 63. The Commission and Judge Bo-land acknowledged that she had no prior disciplinary history. Therefore, Judge Bo-land has no pattern of conduct to consider.

(5) Whether “moral turpitude” was involved.

¶ 64. In Mississippi Commission on Judicial Performance v. Justice Court Judge T.T., 922 So.2d 781, 786 n. 4 (Miss.2006), this Court defined moral turpitude to include “actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” More recently, in Mississippi Commission on Judicial Performance v. Sanford, 941 So.2d 209, 217 (Miss.2006), this Court expanded the meaning of moral turpitude to include respecting and upholding the dignity of the judiciary through appropriate conduct and behavior towards others. Here, Judge Boland’s statement was inappropriate, and her conduct and behavior were contrary to the dignity of the judiciary.

(6) The presence or absence of mitigating or aggravating circumstances.

¶ 65. Aggravating circumstances are present in this case. Judge Boland made derogatory statements toward members of her constituency which adversely affected a multitude of individuals, including court staff and parties appearing before her. Mitigating circumstances are present in that Judge Boland was exhausted and fatigued at the time of her statements.

¶ 66. We find that Judge Boland shall be publicly reprimanded and assessed all costs associated with this proceeding, amounting to $4,108.42. Judge Boland no longer holds the position of Justice Court Judge, District One, Hinds County, Mississippi, and, therefore, the additional imposition of a suspension from office for a period of time is moot.

CONCLUSION

¶ 67. We find that the conduct of Nicki M. Boland, Justice Court Judge, District One, Hinds County, Mississippi, constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 68. For the reasons stated, we accept the recommendation of the Commission for the issuance of a public reprimand and assessment of costs. We do not impose an additional suspension period, as Judge Bo-land is no longer in office and the issue is moot. We order that a public reprimand and assessment of the costs in the amount of $4,108.42 shall be imposed against Judge Boland. This public reprimand shall be read in open court, when the venire panel meets, on the first day of the next term of the Circuit Court of Hinds County, with Judge Boland present.

¶ 69. JUDGE NICKI M. BOLAND, JUSTICE COURT JUDGE FOR HINDS COUNTY, DISTRICT ONE, SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT WHEN THE VENIRE PANEL MEETS BY THE PRESIDING JUDGE OF THE HINDS COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL AND IS ASSESSED COSTS IN THE AMOUNT OF $4,108.42.

DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. CARLSON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY GRAVES, J. SMITH, C.J., and WALLER AND DIAZ, P.JJ., NOT PARTICIPATING.

CARLSON, Justice,

Specially Concurring:

¶ 70. While I fully concur in today’s majority opinion, I write separately to briefly state that in addition to the reasons set forth by the majority to conclude that Issue II has no merit, I would also rely on the reasoning set forth in the dissent in Mississippi Commission on Judicial Performance v. Wilkerson, 876 So.2d 1006, 1017-26 (Miss.2004) (Carlson, J., dissenting, joined by Graves, J.).

GRAVES, J., JOINS THIS OPINION IN PART.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Marina Y. Asanov HUNT, Appellant v. Alexander N. ASANOV, Appellee.
    No. 2007-CA-00192-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2008.

      Dewitt T. Hicks, Jr., Columbus, attorney for appellant.
    Alexander N. Asanov, appellee, pro se.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Marina Y. Asanov Hunt (Hunt) appeals the decision of the Chancery Court of Oktibbeha County, arguing that the chancery court erred in (1) reducing the child support obligations of Dr. Alexander N. Asanov (Dr. Asanov), (2) failing to hold Dr. Asanov in contempt for failure to pay back child support, and (3) distributing certain marital property. Hunt seeks a reversal of the chancery court’s judgment and a judgment rendered ordering Dr. Asanov to pay delinquent child support and awarding her fifty percent or more ownership interest in the parties’ company. Finding no error in the judgment of the chancery court, we affirm.

UNDERLYING FACTS AND PROCEDURAL HISTORY

¶2. This Court has reviewed this case once before. See Asanov v. Hunt, 914 So.2d 769 (Miss.Ct.App.2005). There, Dr. Asanov appealed issues concerning the validity of the parties’ foreign divorce decree, the failure to hold Hunt in contempt, the division of marital property, and child custody. Hunt cross-appealed, seeking a determination on child support. Hunt additionally sought a ruling from this Court imposing sanctions upon Dr. Asanov for filing a frivolous appeal. We affirmed the chancellor’s: (1) recognition of the parties’ Russian divorce decree, (2) declination to hold Hunt in contempt, (3) dismissal of Dr. Asanov’s attempt to divide the marital property, and (4) grant of sole physical and legal child custody. However, we found that there was no judgment regarding child support and dismissed this point of Hunt’s cross-appeal as not being properly before the Court. Further, we declined to impose sanctions on Dr. Asanov, finding that his appeal was not frivolous.

¶ 3. Since the final decision entered by this Court, the parties have returned to the chancery court seeking adjudication regarding child support, contempt, and equitable division of a company owned by the parties. The chancery court found that Dr. Asanov did not owe an arrearage in his child support obligations and declined to hold Dr. Asanov in contempt. The parties’ company, BioElectroSpec, Inc., was divided by the chancellor, granting Hunt a twenty-five percent interest and presenting Dr. Asanov the option of purchasing Hunt’s interest for a specified amount.

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN FAILING TO FIND THAT DR. ASANOV OWED DELINQUENT CHILD SUPPORT AND DECLINING TO HOLD DR. ASANOV IN CONTEMPT FOR FAILURE TO PAY CHILD SUPPORT OBLIGATIONS.

¶ 4. Under the initial Russian child support order dated June 24, 2000, Dr. Asanov was obligated to pay one-third of any income received. On February 13, 2001, Hunt sought to enroll and enforce the Russian child support order in the Chancery Court of Oktibbeha County. However, the chancery court instead issued a bench opinion on November 27, 2001, obligating Dr. Asanov to pay $625 per month in child support for the parties’ two minor children. This support order was to become effective on December 1, 2001. But then a few days later, on December 6, 2001, the chancery court issued an order nunc pro tunc recognizing and enrolling the initial Russian child support order. No issue was made on appeal of the orders, and Dr. Asanov began paying $625 per month for child support. On March 11, 2002, upon Dr. Asanov’s motion, his child support obligations were modified; and Dr. Asanov again was ordered to pay $625 per month.

¶ 5. In 2004, the parties returned to the chancery court regarding several different matters, including a motion filed by Hunt seeking to have Dr. Asanov held in contempt for failure to pay his child support obligations as outlined in the Russian child support order. At that time, the chancery court refused to rule on Hunt’s motion of contempt. The issue of child support was later cross-appealed by Hunt; however, this Court refused to consider the issue for lack of a final judgment. Asanov, 914 So.2d at 774(¶ 28).

¶ 6. After we handed down our opinion in the first appeal of this matter in 2005, the parties then returned to the chancery court seeking final adjudication on the issue of child support. Hunt sought a determination of the amount Dr. Asanov owed in delinquent child support according to the Russian child support order and sought to have Dr. Asanov held in contempt for failure to pay his obligation. However, the chancellor found that Dr. Asanov paid, and actually overpaid, his owed child support in accordance with the chancery court order of $625 per month. Finding that Dr. Asanov had properly paid the amounts owed for child support, the chancellor denied Hunt’s motion to hold Dr. Asanov in contempt.

¶ 7. Hunt argues that while the chancellor found that Dr. Asanov fully paid his child support obligations in the amount of $16,250, under the Russian decree Dr. As-anov should have paid approximately $70,000 in child support. Hunt asserts that the chancellor’s departure from the Russian child support order was an erroneous downward modification of Dr. Asa-nov’s child support obligations. Hunt also argues that the chancellor’s decision was inappropriate under the clean hands doctrine because Dr. Asanov was in arrearage under the original Russian child support order when he sought relief. She argues that because the chancery court erroneously modified Dr. Asanov’s child support obligations, she is entitled to back child support and her attorney’s fees incurred in bringing her motion for contempt.

¶ 8. The law of Mississippi is well settled that the clean hands doctrine prevents a parent from receiving a modification of a child support order when that parent is guilty of willful contempt of the order mandating the support. Bailey v. Bailey, 724 So.2d 335, 337(¶ 6) (Miss.1998) (citing Calcote v. Calcote, 583 So.2d 197, 199-200 (Miss.1991)). Most important to our consideration of whether Dr. Asanov was in contempt centers upon determining whether his violation of the order was “willful” so as to preclude relief in his child support obligations.

¶ 9. Contempt matters are committed to the substantial discretion of the chancellor. Lahmann v. Hallmon, 722 So.2d 614, 620(¶ 19) (Miss.1998) (citing Shelton v. Shelton, 653 So.2d 283, 286 (Miss.1995)). In a contempt action for failure to pay child support, the party seeking the support makes a prima facie case by introducing evidence that the party required to pay the support has failed to do so. Lahmann, 722 So.2d at 620(¶ 19) (citing Guthrie v. Guthrie, 537 So.2d 886, 888 (Miss.1989)). At this point, the burden shifts to the paying party to show an inability to pay or other defense. Lahmann, 722 So.2d at 620(¶ 19). One may defend a contempt proceeding with the defense that the court order was unclear. Ellis v. Ellis, 840 So.2d 806, 811(¶ 18) (Miss.Ct.App.2003) (citing Davis v. Davis, 829 So.2d 712, 714(119) (Miss.Ct.App.2002)). It follows that if the order was unclear, then Dr. Asanov cannot be held in willful contempt for failure to comply.

¶ 10. Our review in this case finds that Dr. Asanov’s failure to pay under the Russian child support order cannot be characterized as contumacious. Within a period of approximately one week, two separate child support orders were issued by the chancery court. One order was issued enrolling the Russian child support order nunc pro tunc, but it failed to specify a dollar amount owed. The other order specified a dollar amount owed and a date when the payments should commence. When the parties sought a clarification or reconciliation of these two orders, the chancery court refused to rule. Both Hunt and Dr. Asanov were then left to guess which order controlled the child support obligations of Dr. Asanov.

¶ 11. Before a party may be held in contempt for failure to comply with a judgment, “ ‘the judgment must be complete within itself ... leaving open no matter or description or designation out of which contention may arise as to meaning.’ ” Davis, 829 So.2d at 714(¶ 9) (quoting Wing v. Wing, 549 So.2d 944, 947 (Miss.1989)). When Dr. Asanov began paying monthly child support payments of $625, which was the amount ordered under the first child support decree, he continued to pay this amount and no appeal was taken. It is entirely reasonable to infer that Dr. Asanov was under the impression that he was in compliance with the court order of child support. Finding such, we cannot find that Dr. Asanov’s conduct was sufficiently knowing so that it should be labeled contumacious, as he did not commit a willful or deliberate violation of the prior judgments or decrees. Therefore, Dr. Asanov did not come into the chancery-court seeking a downward modification of his child support obligations with unclean hands. We find Hunt’s issues on this matter to be without merit and decline relief thereon.

II. WHETHER THE CHANCELLOR ERRED IN DISTRIBUTING CERTAIN MARITAL PROPERTY, NAMELY A CORPORATION OWNED BY THE PARTIES.

¶ 12. In the order adjudicating the parties’ marital property division, the chancellor found that BioElectroSpec, Inc., was an asset acquired during the marriage; thus, it became marital property subject to equitable division. The Ferguson factors were applied, and the chancellor presented Dr. Asanov the option of either formally transferring to Hunt a twenty-five percent interest in the parties’ corporation or purchase Hunt’s twenty-five percent interest for $12,500. Dr. Asanov was instructed by the chancellor to choose either option within thirty days of the date of the order and was encouraged to select the latter option to eliminate possible future discord with Hunt. Hunt asserts that, to this day, Dr. Asanov has failed to comply with the order and has failed to either formally transfer an interest in the corporation to her or to purchase her interest for the specified amount. Hunt further asserts that the chancellor committed manifest error in analyzing the Ferguson factors and making the distribution of BioElectroSpec, arguing that she should have been awarded a distribution of at least fifty percent of the corporation. On appeal she seeks the reversal of the property division and an award rendered in her favor for a fifty percent interest in BioE-lectroSpec.

¶ 13. The “ ‘chancery court has authority, where equity demands, to order a fair division of property accumulated through the joint contributions and efforts of the parties.’ ” Owen v. Owen, 928 So.2d 156, 160(¶ 10) (Miss.2006) (quoting Savelle v. Savelle, 650 So.2d 476, 479 (Miss.1995)). We will not disturb the findings of a chancellor unless the findings were manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. R.K. v. J.K., 946 So.2d 764, 772(¶ 17) (Miss.2007).

¶ 14. Assets acquired during a marriage are considered marital property and are subject to equitable division unless it can be shown that such acquisition of assets is attributable to one of the parties’ separate estates before the marriage. Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). Equitable distribution does not mean equal distribution. Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss.1994). In making a division of marital property, the chancery court is not required to divide the property equally, but rather the chancery court considers several factors under the precedent of Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994) in formulating such an award. Ferguson directs the chancery court to consider the following guidelines, where applicable, when attempting to effect an equitable division of marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Owen, 928 So.2d at 161(¶ 13) (quoting Ferguson, 639 So.2d at 928).

¶ 15. The chancery court addressed each Ferguson factor in its order, finding no proof regarding the value of the business or its assets, nor the potential tax consequences resulting from the company’s division. The court found that BioE-lectroSpec is a successor corporation derived from a company, Aqua-M, Limited, which was created in Russia by Hunt and Dr. Asanov during their marriage. While Aqua-M was in existence, Hunt owned thirty-two and one-half percent of the company. Once the parties moved to the United States, BioElectroSpec was incorporated, and according to Hunt, BioElec-troSpec assumed all of the assets of Aqua-M. Both Hunt and Dr. Asanov are listed as the initial incorporators and directors of BioElectroSpec. During the parties’ marriage, Hunt served as the company’s bookkeeper and accountant, and she asserts on appeal that she contributed her industrial engineering skills to the production of the BioElectroSpec technology until the date of their separation in 1999. Dr. Asanov provided technical and scientific contributions to the corporation. While Hunt was found to have spent more quality time on family duties, neither party was favored in the chancery court’s review of direct or indirect economic contributions to BioElec-troSpec.

¶ 16. Considering the testimony and evidence the chancery court had before it when making the distribution of BioE-lectroSpec, we cannot say that the chancery court erred in awarding Hunt twenty-five percent of the corporation. Each of the Ferguson factors were considered in making the equitable distribution of BioElectroSpec, and absent manifest or clear error, we must uphold the chancellor’s decision. We cannot say the chancellor abused his discretion, and we affirm the chancellor’s judgment, accordingly.

¶ 17. THE JUDGMENT OF THE CHANCERY COURT OF OKTIBBEHA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Hunt also moves this Court to sanction Dr. Asanov for his use of disrespectful language in his brief. Finding Hunt’s motion is well taken, we hereby strike the offensive portions of Dr. Asanov’s brief.

      . The facts and procedural history of this case are contained in this Court's former opinion and will not be restated here except as necessary for understanding of this decision.

      . In her brief to this Court, Hunt also seeks an injunction prohibiting Dr. Asanov from transferring the assets of BioElectroSpec into a newly formed corporation, TIRE Technologies, Inc., before adjudication of such equitable division. However, this issue was not brought in the chancery court; thus, it is not properly before this Court. Therefore, we decline to address any arguments regarding such a request.


text:
    Nigel O’Neil DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00224-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2008.
    Nigel O’Neil Davis, appellant, pro se.
    Office of the Attorney General by Stephanie B. Wood, attorney for appellee.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Nigel O’Neil Davis moved for post-conviction relief in the Circuit Court of Calhoun County based upon the amendment of the statute under which he was sentenced for uttering forgery; however, his motion was denied. On appeal, he claims that the sentencing statute, Mississippi Code Annotated section 97-21-33 (Rev.2006), is ambiguous. Davis contends that he should have been sentenced for a misdemeanor because the amounts forged were under $500. Davis argues that because the statute under which he was sentenced was amended in 2003, his crime is classified as a misdemeanor; and the most he should be sentenced to serve is not more than six months in the county jail and to pay a fine. Finding no error in the decision of the trial court, we affirm the denial of Davis’s motion for post-conviction relief.

UNDERLYING FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2002, Davis was indicted under Mississippi Code Annotated section 97-21-33 (Rev.1994) for two counts of uttering a forgery, based upon his forgery of two cheeks, each in the amount of $253.81. Davis pleaded guilty to two counts of uttering a forgery on August 9, 2004, and later was sentenced to serve one year for each count in the custody of the Mississippi Department of Corrections, fined $1,000, and ordered to pay restitution. However, between the time of his indictment and the sentencing, the Mississippi Legislature amended Mississippi Code Annotated section 97-21-33.

¶ 3. During the time the indictment was handed down, Mississippi Code Annotated section 97-21-33, as it read in 2002, allowed the judge discretion to sentence Davis to serve a maximum term of six months and/or pay a fine of $1,000, if his conviction of forgery had been in an amount under $100. Davis, however, was indicted for two separate counts of forgery in amounts exceeding $100. Thus, at the time of indictment, the trial judge was mandatorily required to sentence Davis to serve a term of not less than two years nor more than fifteen years in the penitentiary. But, by the time Davis entered his guilty plea and was sentenced in 2004, the statute had been amended.

¶ 4. The 2003 amendment to Mississippi Code Annotated section 97-21-33 lessened the mandatory maximum sentence for forgery crimes in amounts $500 and more, added provisions regarding the assessment of fines, and changed the terms under which a trial judge may utilize discretionary sentencing power. The amendment granted the trial judge discretion to sentence a person convicted of forgery to serve a maximum term of six months in the county jail and/or pay a fine up to $1,000, if the amount forged was less than $500. Because the amounts Davis forged were less than the threshold $500, individually, the trial judge had the discretion to impose the lesser sentence. But, instead, Davis was sentenced to serve one year and fined $1,000 for each count.

¶ 5. This Court has been faced with a similar situation to the case at hand. Recently, in Tate v. State, 961 So.2d 763, 765(¶ 4) (Miss.Ct.App.2007), the appellant asserted, essentially, the same argument regarding the amendment to Mississippi Code Annotated section 97-21-33. This Court held that although the amount of the check uttering forgery totaled less than $500, Tate was not entitled to a misdemeanor sentence. Id. at 766-67(¶ 11). Rather, the trial court’s imposition of a felony sentence was within its discretion and fell within the guidelines set forth in the forgery statute. Id.

¶ 6. In this case, the trial judge had the discretion to impose the lesser penalty under Mississippi Code Annotated section 97-21-33; however, he was not required to impose such a sentence. While the statute does allow for a more lenient sentence for forgeries of lesser amounts, the statute also “allows the trial judge to sentence an individual convicted of uttering a forgery to the maximum [sentence].” Davis v. State, 758 So.2d 463, 467(¶ 11) (Miss.Ct.App.2000). Therefore, we find that the trial judge’s sentencing Davis for each count to serve one year and assessment of a $1,000 fine did not exceed the statutory guideline and was not in error. Accordingly, the denial of the motion for post-conviction relief is affirmed.

¶ 7. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY DENYING MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Mississippi Code Annotated section 97-21-33, prior to the 2003 amendment, read as follows:
      Persons convicted of forgery shall be punished by imprisonment in the penitentiary for a term of not less than two (2) years nor more than fifteen (15) years, provided, however, that when the amount of value involved is less than one hundred dollars ($100.00) in lieu of the punishment above provided for, the person convicted may be punished by imprisonment in the county jail for a term of not more than twelve (12) months, within the discretion of the court.

      . Section 97-21-33, subsequent to the 2003 amendment, currently provides:
      Persons convicted of forgery shall be punished by imprisonment in the Penitentiary for a term of not less than two (2) years nor more than ten (10) years, or by a fine of not more than Ten Thousand Dollars ($10,-000.00), or both; provided, however, that when the amount of value involved is less than Five Hundred Dollars ($500.00) in lieu of the punishment above provided for, the person convicted may be punished by imprisonment in the county jail for a term of not more than six (6) months, or by a fine of not more than One Thousand Dollars ($1,000.00), or both, within the discretion of the court.


author: KING, C.J.,

text:
    Leroy CAMPBELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-02090-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2008.
    Leroy Campbell, appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., and ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. Leroy Campbell appeals the Harrison County Circuit Court’s denial of his motion titled “Nunc Pro Tunc.” The motion requested the trial court correct the computation of his credit for time served prior to sentencing. This Court finds that, since Campbell has completed his sentence, this issue is moot.

FACTS

¶ 2. On November 5, 2004, Campbell was arrested and charged with embezzlement. He posted bond on November 23, 2004, and left Mississippi traveling to Louisiana. He was indicted for the crime of embezzlement by a Harrison County grand jury on April 11, 2005. On August 15, 2005, an arrest warrant was issued for Campbell.

¶ 3. He was arrested by police in Louisiana on October 17, 2005. The following day he signed a waiver of extradition freely volunteering to return to Mississippi to respond to the criminal charges. For some reason that is not apparent from the record, Campbell was not extradited from Louisiana until November 17, 2005.

¶ 4. Upon extradition, Campbell pleaded guilty to embezzlement and was sentenced to serve two years, day-for-day, in the custody of the Mississippi Department of Corrections (MDOC). In addition, the trial court granted Campbell credit for time served. Campbell was placed in the custody of MDOC immediately after sentencing.

¶ 5. On August 16, 2006, Campbell filed a motion titled “Nunc Pro Tunc” that claimed he was given the incorrect amount of credit for time served. The trial court denied the motion finding that the sentencing order did grant him credit for time served. On October 23, 2006, Campbell filed a motion titled “Amended Nunc Pro Tunc Motion.” It stated that while the trial court did provide credit for time served, the amount was calculated incorrectly because it failed to include the time he had spent in custody in Louisiana awaiting extradition to Mississippi after he had waived extradition. The trial court once again denied the relief sought, and Campbell instituted this appeal.

ANALYSIS

¶ 6. While Campbell never specifically requested post-conviction relief, the essence of his motion states that he is serving an illegal sentence. He specifically argues that MDOC wrongly denied him credit for time served while awaiting extradition from Louisiana. The appellate courts have previously addressed such claims. Holland v. State, 418 So.2d 73, 74 (Miss.1982); Taylor v. State, 726 So.2d 227, 227-28 (¶¶ 3-8) (Miss.Ct.App.1998). However, more recently this Court has stated that computation of credit for time served is left to MDOC, and that the proper redress is first through MDOC’s administrative system. Melton v. State, 930 So.2d 452, 455-56 (¶¶ 13-14) (Miss.Ct.App.2006); Thomas v. State, 910 So.2d 1147, 1152(¶ 15) (Miss.Ct.App.2005).

¶ 7. Rather than determine whether this matter falls under the post-conviction relief statutes or administrative remedies, we note that on September 30, 2007, Campbell was released from the custody of MDOC, having served his two-year sentence. Since Campbell has completed his sentence and is no longer in custody for this crime, the issue has become moot and this appeal is dismissed. Rankins v. State, 937 So.2d 45, 45(¶ 2) (Miss.Ct.App.2006).

¶ 8. THE APPEAL FROM THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: PER CURIAM. SEE, Justice

text:
    SERRA CHEVROLET, INC. v. Theresa REYLANDER.
    1050278.
    Supreme Court of Alabama.
    June 15, 2007.
    Cecil H. Macoy, Jr., and Susan E. McPherson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellant.
    Submitted on appellant’s brief only.
   PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.

SEE and BOLIN, JJ., dissent.

SEE, Justice

(dissenting).

This Court affirms without an opinion the trial court’s denial of a motion to compel arbitration filed by Serra Chevrolet, Inc., the defendant below. I respectfully dissent.

On May 15, 2003, Theresa Reylander and her boyfriend visited an automobile dealership operated by Serra Chevrolet to purchase a used automobile for Reylander. Aaron Hardy, one of Serra Chevrolet’s salespersons, offered them assistance. Reylander and her boyfriend returned the next day to buy one of the cars they had looked at the previous day, on the condition that Serra Chevrolet would repair the radio antenna, touch up some scratches in the paint, and repair the rear spoiler. That evening, Reylander signed a purchase agreement, which contained an arbitration provision; that provision stated, in pertinent part:

“The undersigned Purchaser and Seller ... agree as follows:
“(1) That the motor vehicle described in this sale document has been heretofore traveling in interstate commerce and has an impact upon interstate commerce.
“(2) That in the event of any dis-putéis) between the parties hereto or in the event of any dispute(s) arising out of or related to this contract, (including but not limited to the terms of the agreement, the condition of the motor vehicle sold, the conformity of the motor vehicle sold to the contract, the representations, promises, undertakings or covenants made by Seller, Inc. in connection with the sale of the motor vehicle, or otherwise dealing with the motor vehicle ...) that Seller, and the purchaser agree to submit such dispute(s) to binding arbitration, pursuant to the provisions of 9 U.S.C. 1, et seq. and according to the commercial rules of the American Arbitration Association then existing in Alabama.
“(3) That in the event any dispute arises between purchaser and seller, its officers, agents and employees, the said dispute will be submitted to binding arbitration pursuant to 9 U.S.C. 1, et seq. and according to the commercial rules of the American Arbitration Association then existing in Alabama.”

Reylander alleges in her complaint that “[wjhile completing the paperwork, [Hardy] engaged a coworker in an inappropriate conversation of a sexual nature in front of [Reylander] and her boyfriend.”

Reylander returned to Serra Chevrolet on May 19 and May 20, 2003, to have the repairs to the automobile she had purchased completed. Reylander rode with Hardy to Roebuck Honda to have the radio fixed and to the body shop to have the scratches in the paint fixed. While they were in the car together, Hardy allegedly made a number of unwanted comments of a sexual nature to Reylander and repeatedly touched Reylander in a sexual manner. Reylander sued Hardy, alleging assault and battery, invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional distress, and false imprisonment. She also named Serra Chevrolet as a defendant, alleging the negligent hiring and supervision of Hardy and vicarious liability for Hardy’s actions. Serra Chevrolet moved to compel arbitration of the claims pursuant to the arbitration provision in the purchase agreement Reylander had signed. The trial court denied Serra Chevrolet’s motion, stating that “intentional torts of this nature as a matter of public policy should not be subject to the arbitration clause in this case.”

This case is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“the FAA”). Section 2 of the FAA provides:

“A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

9 U.S.C. § 2. “The FAA ‘provides for “the enforcement of arbitration agreements within the full reach of the Commerce Clause.” ’ ” Wolff Motor Co. v. White, 869 So.2d 1129, 1132 (Ala.2003) (quoting Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003), and Perry v. Thomas, 482 U.S. 483, 490, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987)). In finding a nexus with interstate commerce, we look to the transaction, not the specific action that is the basis of the claim. In Potts v. Baptist Health System, Inc., 853 So.2d 194, 202 (Ala.2002), Caroline Potts, a nurse, sued her employers, Baptist Health System, Inc., and Walker Regional Medical Center (“Walker”), and others, alleging various intentional torts, including “defamation, intentional infliction of emotional distress, invasion of privacy, and wrongful termination.” 853 So.2d at 195. Potts had entered into an arbitration agreement with Walker. This Court held that “the FAA applie[d]” to the arbitration agreement between Potts and Walker, not because the defendants established a nexus between Potts’s intentional-tort claims and interstate commerce, but because of the relationship between the underlying transaction' — -her continued employment — and interstate commerce. 853 So.2d at 202.

“It is well established that Congress can regulate three broad categories of activity pursuant to its commerce power: (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce or persons or things in interstate commerce; and (3) those general activities having a substantial effect on interstate commerce.”

Wolff Motor Co., 869 So.2d at 1132. “The automobile, if anything, is the paradigm of modern interstate commercial activity in the United States.... ‘[C]ars are themselves instrumentalities of commerce.’ ” United States v. McCoy, 323 F.3d 1114, 1129 (9th Cir.2003) (quoting United States v. Oliver, 60 F.3d 547, 550 (9th Cir.1995)). “[T]he purchase of a used automobile from an automobile dealer [is] a transaction that involve[s] interstate commerce.” , Dan Wachtel Ford, Lincoln, Mercury, Inc. v. Modas, 891 So.2d 287, 292 (Ala.2004). The arbitration provision in the purchase agreement between Reylander and Serra Chevrolet covers the sale of a used automobile.

The question presented to this Court is whether the arbitration provision encompasses Reylander’s claims against Serra Chevrolet alleging the negligent hiring and negligent supervision of Hardy and seeking to hold Serra Chevrolet vicariously liable for the alleged intentional torts of Hardy. The arbitration provision, by its express terms, covers “any dispute(s) between the parties hereto.” More specifically, it also covers “any dispute(s) arising out of or related to this contract.” Even this narrower

“language of the arbitration provision in this case is not ambiguous. Under the plain language of the provision, [Reylan-der] agreed to arbitrate all disputes ‘arising from or relating to’ the contract. ‘This Court has held [that] where a contract signed by the parties contains a valid arbitration clause that applies to claims “arising out of or relating to” the contract, that clause has a broader application than an arbitration clause that refers only to claims “arising from” the agreement.’ ”

Green Tree Fin. Corp. of Alabama v. Vintson, 753 So.2d 497, 505 (Ala.1999).

The arbitration provision in the agreement between Reylander and Serra Chevrolet makes no exception for negligent hiring, negligent supervision, or claims asserting vicarious liability for intentional torts — this last being the basis upon which the trial court denied Serra Chevrolet’s motion to compel arbitration of all three claims against it. Moreover, “ ‘[t]he federal policy favoring arbitration is so strong that, as a matter of law, “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration Parkway Dodge, Inc. v. Hawkins, 854 So.2d 1129, 1132 (Ala.2003) (quoting Ameriquest Mortgage Co. v. Bentley, 851 So.2d 458, 463 (Ala.2002), quoting in turn Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). Thus, Reylander’s claims fall squarely within the purview of this “broadly worded agreement.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Kilgore, 751 So.2d 8, 11 (Ala.1999).

In Green Tree Financial Corp. v. Vintson, the Vintsons asserted intentional-tort claims, and they argued that the arbitration clause they had signed did not encompass such claims. This Court held that

“[a]ll of the Vintsons’ claims — that Green Tree fraudulently induced them to purchase a mobile home, that it violated the Alabama Mini-Code, and that it breached its agreement to pay off several preexisting debts — arise from or relate to the installment contract. In fact, the Vintsons concede as much in their brief, when they state that their complaint was based on ‘fraud relating to this transaction.’ Accordingly, the plain language of the arbitration provision encompasses the Vintsons’ claims.”

753 So.2d at 505. Similarly, in this case, Reylander’s claims against Serra Chevrolet alleging negligent hiring and negligent supervision and seeking to hold Serra Chevrolet vicariously liable for Hardy’s actions relate to the purchase agreement. In Green Tree Financial the Vintsons conceded that their action was related to the transaction as to which they had signed the arbitration clause; similarly, Reylander asserts in her complaint that Serra Chevrolet “owed a duty to its employees and customers to ensure that its employees, agents and servants were adequately trained, educated and supervised so as not to act in an inappropriate manner with other employees or customers.” By referring to herself as a customer, Reylander concedes that her claims against Serra Chevrolet are related to her purchase of an automobile from Serra Chevrolet. See also Potts v. Baptist Health Sys., Inc., 853 So.2d at 202 (holding that the arbitration agreement was enforceable in cases invoking intentional-tort claims brought by a nurse against her hospital-employer).

The dispute

“aris[es] out of or [is] related to [the] contract, (including but not limited to the terms of the agreement, the condition of the motor vehicle sold, the conformity of the motor vehicle sold to the contract, the representations, promises, undertakings or covenants made by Seller, Inc. in connection with the sale of the motor vehicle, or otherwise dealing with the motor vehicle ...).”

Hardy was driving Reylander to have the automobile she had purchased repaired in accordance with the terms of the purchase agreement when he allegedly harassed her sexually. Reylander’s claims against Serra Chevrolet thus “arise directly out of her purchase transaction with [Serra Chevrolet].” Dan Wachtel Ford, Lincoln, Mercury, Inc., 891 So.2d at 293. Serra Chevrolet’s agreement to have the automobile repaired “was part of the negotiations involved in the purchase and financing of the [automobile]. Thus the language used in the arbitration agreement[ ] is broad enough to encompass [Reylander’s] claims.” Ex parte Bill Heard Chevrolet, Inc., 927 So.2d 792, 802 (Ala.2005). This case is governed by our analysis in Green Tree Financial, and the arbitration provision in this case covers Reylander’s claims against Serra Chevrolet alleging negligent hiring and negligent supervision and asserting vicarious liability.

In the trial court, Reylander cited Fountain Finance, Inc. v. Hines, 788 So.2d 155, 158 (Ala.2000), in which Lavonne Hines and others sued Fountain Finance, Inc., and Jim Skinner Ford, Inc., alleging “various intentional torts, all arising out of an apparently serious altercation on the Hines property ‘in the early morning hours’ of July 7, 1999.” 788 So.2d at 158. Fountain Finance and Jim Skinner Ford moved to compel arbitration pursuant to an arbitration agreement Hines allegedly had signed when she purchased a car from Jim Skinner Ford. The purchase contract was later assigned to Fountain Finance. Although the arbitration agreement was a broad one, it applied only to disputes “resulting from or arising out of the sale transaction.” 788 So.2d at 160 (See, J., concurring in part and dissenting in part). Fountain Finance and Jim Skinner Ford did not show that the altercation that occurred on the Hineses’ property had anything to do with the purchase of the car; thus, “they failed to satisfy their burden of proof on the question whether the arbitration agreement covered the plaintiffs’ claims.” 788 So.2d at 159. Where the arbitration agreement requires a nexus, it “cannot be ‘enforced to require arbitration of a claim alleging an intentional tort that in no way relates to the underlying transaction that gave rise to the arbitration agreement.’ Green Tree Fin. Corp. v. Shoemaker, 775 So.2d 149, 151 n. 3 (Ala.2000).” Fountain Finance, Inc., 788 So.2d at 158. The case before us, unlike Fountain Finance, expressly involves claims that clearly fall within the unambiguous language of the arbitration provision.

The present case involves an arbitration provision that is “broad enough” to encompass Reylander’s claims against Serra Chevrolet, including the intentional-tort claims, and “[wjhether an arbitration provision encompasses a party’s claims is a matter of contract interpretation. That interpretation is guided by the intent of the parties, which, absent ambiguity in the arbitration provision, is evidenced by the plain language of the provision.” Ex parte Discount Foods, Inc., 789 So.2d 842, 844 (Ala.2001). We are compelled when interpreting arbitration agreements to apply the same rules of contract interpretation that we apply to all other contract provisions. The Supreme Court of the United States tells us that “Congress precluded States from singling out arbitration provisions for suspect status, requiring instead that such provisions be placed ‘upon the same footing as other contracts.’ ” Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 511, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974)). Moreover, ‘““any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration Parkway Dodge, 854 So.2d at 1132. The arbitration provision in this case covers “any dispute” between Reylander and Serra Chevrolet “arising out of or related to this contract.”

I would reverse the trial court’s denial of Serra Chevrolet’s motion to compel arbitration. Therefore, I dissent.

BOLIN, J., concurs.

      . Although Fountain Finance and Jim Skinner Ford stated that the claims arose out of a repossession of the automobile the purchase of which was the subject of the arbitration agreement, this Court noted that " '[m]otions and arguments of counsel are not evidence' " and that the only evidence of record was an affidavit that "conspicuously fail[ed] to address the factual basis out of which the plaintiffs’ claims arise.” 788 So.2d at 159.

      . Note 3 in Green Tree Financial Corp. v. Shoemaker says: "At best, this case and Vintson have severely limited the holding in Ex

        parte Discount Foods[, Inc., 789 So.2d 842 (Ala.2001) ]. Ex parte Discount Foods can now stand only for the proposition that an arbitration clause should not be enforced to require arbitration of a claim alleging an intentional tort that is in no way related to the underlying transaction that gave rise to the arbitration agreement.” In Ex parte Discount Foods, Inc., 789 So.2d 842, 845-46 (Ala.2001), this Court specifically "disapprove^] ” the principle "that intentional torts unrelated to the underlying transaction that gave rise to the arbitration agreement can never be encompassed in a broad arbitration provision.” We held that a "broad enough” arbitration provision may encompass "even those claims based on allegations of wrongful intentional conduct that does not relate to the contract containing the arbitration provision.” 789 So.2d at 846 (footnote omitted).

      . As this Court recently stated:
      “The freedom of parties to contract is an important public policy written into the state constitution and adopted by the people of Alabama. It is a significant liberty interest that is expressly protected in the constitution. This Court has recognized that ' "the state constitution protects contractual obligations from impairment by the legislature or the judiciary, and the right of freedom of contract is a cherished one that courts are bound to protect.” ' Ex parte Life Ins. Co. of Georgia, 810 So.2d 744, 751 (Ala.2001) (quoting Sutton v. Epperson, 631 So.2d 832, 835 (Ala.1993)).
      " 'Even under what may seem to be the most compelling circumstances, [courts] may not "refine away the terms of the contract that are expressed with sufficient clarity to convey the intent and meaning of the parties.” Kinnon v. Universal Underwriters Ins. Co., 418 So.2d [887,] 888 [(Ala.1982)]. "It is not a function of the courts to make new contracts for the parties, or raise doubts where none exist.” Commercial Union Ins. Co. v. Rose's Stores, 411 So.2d 122, 124 (Ala.1982).'”

        Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1055 n. 1 (Ala.2007) (quoting Johnson v. Cervera, 508 So.2d 257, 259 (Ala.1987)).