author: CARLSON, Presiding Justice, KITCHENS, Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Rickey W. THOMPSON.
    No. 2011-JP-00555-SCT.
    Supreme Court of Mississippi.
    Jan. 26, 2012.

      Darlene D. Ballard, John B. Toney, attorneys for appellant.
    Jim Waide, Tupelo, attorney for appel-lee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed a Formal Complaint against Rickey W. Thompson, Justice Court Judge, District Four, Lee County, Mississippi. The multi-count complaint charged Judge Thompson with numerous instances of judicial misconduct, causing such alleged conduct to be actionable under Article 6, Section 177A of the Mississippi Constitution of 1890. Ultimately, the Commission and Judge Thompson submitted to this Court a joint motion for approval of a recommendation that Judge Thompson be publicly reprimanded, suspended from office for a period of thirty (30) days without pay, fined the sum of $2,000 and assessed costs in the amount of $100. For the reasons discussed below, we adopt the joint recommendation of the Commission and Judge Thompson.

ANALYSIS

A. Facts and Proceedings Before the Commission and General Discussion of the Charges of Judicial Misconduct

¶ 2. On August 5, 2009, the Commission filed a multicount formal complaint concerning Judge Thompson, a justice court judge in Lee County, alleging willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Twenty-six counts were contained in the formal complaint (twenty-five counts actually charged Judge Thompson with judicial misconduct); however, nine counts were redacted in the record filed with us, and eleven counts were consolidated. These eleven consolidated counts charge that Judge Thompson improperly disposed of cases involving separate charges of individuals operating a motor vehicle with no proof of liability insurance. Judge Thompson filed his answer on August 31, 2009, essentially denying the allegations of the complaint. Thereafter, on March 11, 2011, an Agreed Statement of Facts and Proposed Recommendation (Agreement) was submitted and filed by the parties regarding the allegations contained in this complaint. This Agreement addressed the six remaining counts.

¶ 3. This Court makes the “final determination of the appropriate action to be taken in each case” coming before it from the Mississippi Commission on Judicial Performance, “conduct[ing] an independent inquiry of the record” and “accord[ing] careful consideration [of] the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.” Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 176 (Miss.2011) (quoting In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743, 746 (Miss.1982)).

Count One

¶ 4. According to the agreed facts:

In the fall of 2006, Florida Rogers owned a horse, a pregnant mare, that disappeared from a pasture where he had placed the horse to graze. At that time, Rogers searched for the horse, but was unsuccessful in locating her. Thereafter, on or about May 18, 2008, Rogers spotted the mare and a colt grazing in a pasture in Lee County, Mississippi.
Rogers went to the Justice Court of Lee County, Mississippi to file a criminal affidavit against the person owning the pasture where the horses were located, but Respondent refused to allow him to do so, advising Rogers that the case was a civil case.
Although Rogers requested that the Lee County Sheriffs Department investigate the matter involving the horses, on or about July 24, 2008, Rogers received a letter from the Sheriff of Lee County, Mississippi advising him that Respondent instructed his office to take no action, as the matter was a civil matter. Rogers ultimately filed a civil replevin case in the County Court of Lee County, Mississippi and was awarded possession of the mare, the paternity of the colt being at issue.

¶ 5. Under these agreed facts, Judge Thompson involved himself in a case that was not before him. It is true that Judge Thompson may have believed that the facts amounted to a civil rather than a criminal matter, and this Court does not sanction judges for mistakes of law. Miss. Comm’n on Judicial Performance v. Martin, 921 So.2d 1258, 1268 (Miss.2005). In the Martin case, this Court dismissed the proposed sanctions of the Commission where Judge Martin erred in denying bail on two separate occasions. Id. at 1264. In that case, this Court held that:

a judge may ... 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. Miss. Comm’n on Judicial Performance v. Russell, 691 So.2d 929, 937 (Miss.1997). This Court can generally recognize examples of willful misconduct when they are presented for review. In re Anderson, 412 So.2d 743, 752 (Miss.1982) (Hawkins, J. specially concurring). The misconduct complained of need not be intentional or notorious; rather negligence, ignorance, and incompetence suffice as grounds for behavior to be classified as prejudicial to the administration of justice which brings the judicial office into disrepute and thus worthy of sanctions. In re Quick, 553 So.2d 522, 527 (Miss.1989).

Id. at 1264 (citing Miss. Comm’n on Judicial Performance v. Carr, 786 So.2d 1055, 1058-59 (Miss.2001)).

¶ 6. Contrary to the facts in Martin, Judge Thompson’s communication with the sheriffs office crossed the line into involving himself in a criminal investigation at a time when there was no case pending before him concerning the matter.

Count Two

¶ 7. According to the agreed facts:

On or about December 1, 2008, a local attorney, Frank B. Liebling, went to the Lee County Justice Court office to file a complaint against a client who ha[d] stopped payment on a check issued to Liebling for attorney fees.
Liebling did not file the complaint and no action was pending before the court. Instead, Liebling took the proposed complaint and engaged in an ex parte conversation with Respondent. As a result of the meeting, Respondent signed an order nullifying the stop order on the check in question and ordered the bank to cash the check immediately.
The bank officers, being suspicious of the order, contacted the attorneys for the bank and the next day after a conference with the bank attorneys and Liebling, Respondent rescinded the nullification order due to improper process.

¶ 8. Judge Thompson signed an order where there was no case pending and engaged in ex parte discussions in the facts of this count.

Count Three

¶ 9. According to the agreed facts:

On or about June 21, 2008, Holley Kris-tian Galloway, a minor, was arrested and issued a citation for driving under the influence of alcohol, with a B.A.C. of .09. The case, State of Mississippi v. Holley K. Galloway, Docket 295, Page 430, was randomly assigned to Lee County Justice Court Judge John Sheffield and was set for trial on December 4, 2008. When the officer came into the clerk’s office to inspect the file prior to court, it was discovered that Respondent had previously non-adjudicated the minor at the request of Galloway and her father. Respondent non-adjudicated the minor in violation of Mississippi Code Annotated § 63-11-30(3).

¶ 10. The facts provided indicate an ex parte communication among Judge Thompson, Galloway, and Galloway’s father. Also, no notice was given to prosecuting authorities, and Judge Thompson unquestionably interfered in a case that was assigned to Judge Sheffield.

¶ 11. The case is distinguishable from this Court’s recent opinions in Mississippi Commission on Judicial Performance v. McGee, 71 So.3d 578, 589 (Miss.2011); and Mississippi Commission on Judicial Performance v. Little, 72 So.3d 501 (Miss.2011) In those cases, justice court judges admitted to remanding, nonadjudicating, or retiring to the files several DUI charges at the request of a county prosecutor. McGee, 71 So.3d at 582-83; Little, 72 So.3d at 502. This Court dismissed those counts with prejudice, holding that, even if the judges had improperly disposed of the DUI charges, that was only a mistake of law and not sanctionable. McGee, 71 So.3d at 584-85; Little, 72 So.3d at 504. However, unlike the DUI charges in McGee and Little, the agreed facts in Judge Thompson’s case describe other sanctionable actions: an ex parte communication with the parties, no notice to prosecuting authorities, and interfering in a case assigned to another judge.

Count Four

¶ 12. According to the agreed facts:

Robert Gary Orozen, Jr. was arrested and charged with the felonies of forgery, possession of a counterfeit check and possession of false identification in October, 2008 in State of Mississippi v. Robert Gary Orozen, Jr., Docket 571, Pages 253-254.
On or about October 28, 2008, Lee County Justice Court Judge Sadie Holland presided at the initial appearance and set bond at $250,000.00. On January 29, 2009, counsel for the defendant filed a Motion to Reduce Bond and for Preliminary Hearing. On April 7, 2009, Judge Holland denied the defendant’s request for bond reduction and a preliminary hearing was scheduled for May 27, 2009. That same date, counsel for defendant approached Respondent regarding the request for bond reduction.
The next day, April 8, 2009, Respondent reduced the defendant’s bond to $5,000.00 and he was released and transferred to the custody of another law enforcement agency.

¶ 13. The misconduct in this count is apparent. This Court consistently has sanctioned judges for interfering with the orders of another judge. See Miss. Comm’n on Judicial Performance v. Britton, 936 So.2d 898, 903-04 (Miss.2006); Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), overruled in part on other grounds by Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172 (Miss.2011); In re Bailey, 541 So.2d 1036, 1039 (Miss.1989).

Count Five

¶ 14. According to the agreed facts:

In 2009, between January and May, the defendants were issued citations for no proof of liability insurance in the following cases: State of Mississippi v. Andrew K. Watts, Docket 307, Page 231; State of Mississippi v. Ruthie E. Gunn, Docket 306, Page 236; State of Mississsippi v. Donald E. Quarles, Docket 309, Page 325; State of Mississippi v. Patrick D. Westmoreland, Docket 309, Page 275; State of Mississippi v. Carol L. Berryman, Docket 309, Page 177; State of Mississippi v. James R. Ivy, Docket 314, Page 8; State of Mississippi v. Patrick B. Covington, Docket 314, Page 49; State of Mississippi v. Mary Elizabeth Howard, Docket 309, Page 150; State of Mississippi v. Nathan D. Scroggins, Docket 313, Page 48; State of Mississippi v. Tonya M. Roper, Docket 314, Page 212; and State of Mississippi v. Erin B. Richardson, Docket 314, Page 147.
At some point prior to their court dates, each defendant went to the Lee County Justice Court and supplied proof of insurance obtained after the fact and Respondent dismissed the citation in violation of Mississippi Code Annotated § 63-15^4(5). [That statute provides that if the liability insurance was not in effect at the time the citation was issued, the cases should not have been dismissed.]

¶ 15. The agreed facts tell us that the defendants “supplied proof of insurance obtained after the fact.” The Commission should have used clearer language as to whether it was the proof of insurance, or the insurance itself, that was obtained after the fact. However, in context, it is clear that the Commission is not discussing proof obtained after the fact, where the insurance was already in effect, but rather proof of insurance which itself was obtained after the fact.

¶ 16. The question is thus whether this repeated conduct constitutes “negligence, ignorance, and incompetence [which] suffice as grounds for behavior to be classified as prejudicial to the administration of justice which brings the judicial office into disrepute and thus worthy of sanctions” under Martin, 921 So.2d at 1264, or merely a mistake of law. Eleven instances alleged in a four-month period rise above the level of a mere mistake and constitute behavior prejudicial to the administration of justice and worthy of sanctions.

Count Six

¶ 17. According to the agreed facts:

On or about June 30, 2009, officer Tim Erickson of the Lee County Sheriffs Department received a call from Respondent on his personal cellular telephone. Respondent requested that the officer go to a certain location and assist a male involved in a divorce, in obtaining personal belongings from the marital home. The officer was advised by his dispatcher that any order concerning the matter must come from the Chancery Court judge.
Nearly simultaneously, the female involved in the divorce called the Sheriffs Department to report the male removing items from the marital domicile. When the officers arrived, the male reported that Respondent had told him he could get anything that belonged to him. The only issue pending before Respondent in the justice court was a family disturbance matter involving the parties.

¶ 18. The facts do not clearly state that a matter was actually pending in the chancery court, but it is implied — the couple is described as “involved in a divorce.” Judge Thompson improperly involved himself in a domestic civil matter. The facts further indicate that there was an improper ex parte communication with the male, and that Judge Thompson improperly attempted to aid the litigant by telephoning the officer.

¶ 19. The Commission discusses the Respondent’s violations in the agreed facts:

The Respondent acknowledges that Canon 1 demands that a judge should establish, maintain and enforce high standards of conduct and personally observe those standards so that the integrity and independence of the judiciary will be preserved. Respondent also recognizes that Canon 2A of the Code of Judicial Conduct requires judges to respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Respondent likewise understands that Canon 3B(2) requires judges to be faithful to the law and to maintain professional competence in it. Respondent also acknowledges that Canon 3B(7) prohibits judges from engaging in ex parte communications concerning a pending or impending matter.

¶ 20. This Court repeatedly has held that a judge should not engage in ex parte communication, most notably in Boone, 60 So.3d at 182. Judge Thompson did so under the facts alleged in Counts One, Two, Three, Four and Six.

¶ 21. Interfering with the orders of another judge has been found to constitute willful misconduct which brings the judicial office into disrepute. See Miss. Comm’n on Judicial Performance v. Britton, 936 So.2d 898, 903 (Miss.2006). Judge Thompson clearly did so in the facts of Count Four.

¶ 22. In Mississippi Commission on Judicial Performance v. Patton, 57 So.3d 626, 634 (Miss.2011), this Court found that Judge Patton had ignored the Code of Judicial Conduct and deprived citizens of their due process rights when, following ex parte contact, he signed orders in cases involving contempt without the parties being properly notified of the charge or a right to a hearing. The Court imposed a public reprimand, suspension of thirty days without pay, and costs. See also Miss. Comm’n on Judicial Performance v. Vess, 10 So.3d 486, 488 (Miss.2009) (public reprimand, fine of $2,000 and costs where judge engaged in ex parte communication and failed to provide notice to litigants); and Miss. Comm’n on Judicial Performance v. Hartzog, 646 So.2d 1319, 1322 (Miss.1994) (public reprimand where judge signed an order requiring that a prisoner be returned to the county when no case was pending before his court). Here, in Count Two, Judge Thompson signed an order presented to him by an attorney when no case was pending before the Court.

¶ 23. In Mississippi Commission on Judicial Performance v. Carr, 990 So.2d 763, 765 (Miss.2008), overruled in part on other grounds by Boone, 60 So.3d 172, Judge Carr used his position as a justice court judge to threaten a citizen with arrest at a time when no criminal charges were pending against her. Id. at 765. Judge Carr received a public reprimand, a sixty-day suspension without pay, a $2,000 fine and costs. Id. at 771. In the instant case, Judge Thompson interjected himself into two separate civil matters at a time when no case was pending before him by instructing the sheriffs department to cease investigation of a matter in Count One, and by advising a divorce litigant in Count Six.

¶ 24. Regarding Count Five, in numerous instances, either intentionally or through ignorance, a judge has failed to follow statutory dictates, thereby resulting in disciplinary sanctions. See Miss. Comm’n on Judicial Performance v. T.T., 922 So.2d 781, 785 (Miss.2006) (“Judges are required to research, read, know and apply the pertinent statutes and ease law.”); Miss. Comm’n on Judicial Performance v. Neal, 774 So.2d 414, 416-17 (Miss.2000) (respondent’s argument that he was unaware of a violation of the Code when imposing a fíne in excess of statutory authority was not accepted by this Court); Miss. Comm’n on Judicial Performance v. Sanders, 749 So.2d 1062, 1070 (Miss.1999) (“Disregard of state law, whether done intentionally or mistakenly, most certainly brings the integrity and independence of the office into question.”); Miss. Comm’n on Judicial Performance v. Jones, 735 So.2d 385, 389 (Miss.1999) (judge’s reduction of DUI violations to disorderly conduct violated law, the statutes not allowing for such reductions); and Miss. Comm’n on Judicial Performance v. Chinn, 611 So.2d 849, 853 (Miss.1992) (Justice court judges are “knowledgeable in the area in which they administer justice.”) Judge Thompson failed to follow the law in dismissing multiple cases in violation of Section 63-15-4(5), where defendants were issued citations for having no insurance and later acquired insurance. We consider this to be sanctionable conduct, considerably more severe than a mere mistake of law.

B. Discussion of Sanctions

¶ 25. The Commission recommends sanctions of a public reprimand, suspension from office for a thirty-day period, a fine of $2,000, and costs in the amount of $100. Assuming sanctions are warranted, our analysis considers the six factors established by Gibson, 883 So.2d at 1158.

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

¶ 26. The respondent is in his second term as justice court judge and has qualified for re-election. The record is silent as to the character of his service.

2. Whether there is any prior caselaw on point.

¶ 27. In addition to the cases discussed above, several other cases are relevant.

¶ 28. In Mississippi Commission on Judicial Performance v. McPhail, 874 So.2d 441, 442-43 (Miss.2004), a judge mis-dated a judgment resulting in a litigant losing his right to appeal, entered a judgment based on ex parte contact, set aside a judgment after engaging in ex parte communications, gave legal advice and injected himself ex parte into a pending domestic-abuse case before his court, and failed to render a decision in a case after taking it under advisement. This Court ordered a public reprimand, a suspension for thirty days without pay, and costs of the proceeding. Id. at 445.

¶ 29. In Mississippi Commission on Judicial Performance v. Cowart, 936 So.2d 343, 345-48 (Miss.2006), the judge committed impermissible ex parte contacts, presided over a case after acknowledging a conflict, assisted others in avoiding prosecution, requested that an officer dismiss a ticket, and improperly handled fine money. This Court found that the above conduct warranted a public reprimand, a thirty-day suspension without pay and the payment of costs. Id. at 351.

¶ 30. In Mississippi Commission on Judicial Performance v. Roberts, 952 So.2d 934, 935-37 (Miss.2007), the judge committed multiple violations involving improper arrests, issuing arrest warrants without legal justification, threatening defendants and lawyers and otherwise improperly using the power of his office. This Court ordered a public reprimand, suspension from office without pay for a period of thirty days, a fine of $1,500 and payment of costs. Id. at 943.

¶ 31. In Mississippi Commission on Judicial Performance v. Bradford, 18 So.3d 251, 253 (Miss.2009), the judge engaged in ex parte communications, violated Rule 2.06 of the Uniform Rules of Procedure for Justice Court, attempted to get traffic citations dismissed in cases pending before another judge, dismissed criminal cases without properly notifying the prosecutor, improperly dismissed DUI cases, and ordered the issuance of contempt warrants without proper notice of hearing. This Court ordered a public reprimand, suspension from office without pay for thirty days, and assessed costs. Id. at 258.

3. The magnitude of the offense and the harm suffered

¶ 32. By engaging in the aforementioned conduct, Judge Thompson failed to avoid impropriety, caused his impartiality to be questioned, and jeopardized the integrity and independence of the judiciary, thereby eroding public confidence in him as a judicial officer and in our state’s judiciary as a whole.

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

¶ 33. In 2006, the Commission held a hearing on a formal complaint against Judge Thompson, and it found that he had engaged in ex parte communications with a litigant, attempted to mediate the dispute and subsequently issued a criminal warrant in a civil case, resulting in a private admonishment. Thereafter, this Court ordered a public reprimand and costs in a case in which Judge Thompson had interjected himself into a case involving relatives in an attempt to prevent a warrant being issued and served. Miss. Comm’n on Judicial Performance v. Thompson, 972 So.2d 582, 590 (Miss.2008), overruled in part on other grounds by Boone, 60 So.3d 172 (Miss.2011).

5. Whether moral turpitude was involved.

¶ 34. Moral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute. Gibson, 883 So.2d at 1158. In Mississippi Commission on Judicial Performance v. Sanford, 941 So.2d 209, 217 (Miss.2006), this Court expanded the definition of moral turpitude to include a violation of “some of the basic tenets of daily living in a civil society, such as living by standards of fundamental decency and honesty by not abusing the judicial process, and by revering the law and the judicial system, and upholding the dignity and respect of the judiciary through appropriate conduct and behavior toward others.” Id. at 217. The totality of Judge Thompson’s actions did impede or interfere with the administration of justice. The Commission asserts that the misconduct rose to the level of moral turpitude, and we agree.

6.The presence or absence of mitigating factors

¶ 35. Mitigating factors are present in light of the fact that Judge Thompson has agreed that his actions were improper and has entered into an Agreed Statement with the Commission without the requirement of a hearing. The Commission considered that Judge Thompson was the sole misdemeanor drug-court judge in Lee County and that a period of suspension longer than thirty days would cause a significant disruption of the function of the drug court; thus, a $2,000 fine was recommended in lieu of additional suspension time.

¶ 36. In addition, a petition in support of Judge Thompson has been submitted to this Court, signed by numerous citizens of Lee County.

C. Discussion of Lack of Clarity and Specificity

¶ 37. The Commission’s brief is unnecessarily vague in its description of the various counts of misconduct. Likewise, the Agreed Statement of Facts no doubt could have been set out with more specificity. However, in today’s case, it has survived our scrutiny and independent inquiry into the totality of the record before us. Furthermore, we recommend that the Commission be more specific as to the violations alleged in each individual count in the future.

¶ 38. In the context of the instant case, we find that the Commission’s allegations are clear and convincing in establishing a pattern of judicial misconduct by Judge Thompson. However, we note that in other cases, such a lack of clarity and specificity might prove fatal, requiring a dismissal of the case, or, at the very least, remanding the case for further development of the facts. We recommend that in the future, the Commission err on the side of caution and include all relevant information in each count, including the specific canons which are alleged to have been violated.

CONCLUSION

¶ 39. Having considered the record before us and having applied the Gibson factors consistent with our caselaw, we find that the Agreed Statement of Facts and Proposed Recommendation jointly submitted by the Commission and Judge Thompson should be adopted in toto.

¶ 40. Judge Thompson has engaged in six counts of judicial misconduct prejudicial to the administration of justice which brought the judicial office into disrepute. We thus order that Judge Thompson be publicly reprimanded, suspended from office for thirty days, fined $2,000, and assessed costs of the proceeding in the amount of $100. The public reprimand shall be read in open court by the presiding judge of the Circuit Court of Lee County on the first day of the next term of that Court in which a jury venire is present after the issuance of this Court’s mandate in this case, with Judge Thompson present.

¶ 41. The Clerk of this Court shall send copies of this opinion and the mandate of this Court to the Chancery Clerk of Lee County, and to the Circuit Clerk of Lee County, as well as to the Lee County Justice Court Clerk, the County Administrator of Lee County, and the Lee County Board of Supervisors.

¶ 42. LEE COUNTY JUSTICE COURT JUDGE RICKEY W. THOMPSON SHALL BE SUSPENDED FROM OFFICE FOR A PERIOD OF THIRTY (30) DAYS WITHOUT PAY, EFFECTIVE ON THE DATE OF ISSUANCE OF THIS COURT’S MANDATE, PUBLICLY REPRIMANDED, FINED $2,000 AND ASSESSED COSTS OF $100. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE LEE COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT IN WHICH A JURY VE-NIRE IS PRESENT AFTER THE ISSUANCE OF THIS COURT’S MANDATE, WITH JUDGE THOMPSON IN ATTENDANCE.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, PIERCE AND KING, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION. CHANDLER, J., NOT PARTICIPATING.

KITCHENS, Justice,

dissenting:

¶ 43. While I agree that the conduct described in Counts Two and Four warrants sanctions, I cannot, with any confidence, agree that Counts One, Three, Five, and Six provide sufficient and clear facts that would enable this Court to make “a final determination of the appropriate action to be taken” based on “an independent inquiry of the record.” Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 176 (Miss.2011) (quoting In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743, 746 (Miss.1982)). In the present case, this Court’s only source of factual information is the agreed statement of facts from the Commission and Judge Thompson. And, when the agreed statement of facts has not clearly articulated misconduct, this Court has taken two different courses of action: (1) remanding the case to the Commission for further factual development (Mississippi Commission on Judicial Performance v. Brown, 37 So.3d 14, 18 n. 4 (Miss.2010)); or (2) dismissing the charges with prejudice (Mississippi Commission on Judicial Performance v. McGee, 71 So.3d 578 (Miss.2011)). Based on the ambiguity in four of the six counts, I would remand the case to the Commission for further development.

Count One

¶ 44. As to Count One, it is unclear from the agreed facts which of Judge Thompson’s actions violated the Mississippi Code of Judicial Conduct; but the majority finds Judge Thompson’s supposed communication with the sheriffs office amounted to “involving] himself in a criminal investigation at a time when there was no case pending before him involving the matter.” Maj. Op. ¶ 6. However, the quoted language comes from the brief filed by the Commission, which was not signed by Judge Thompson or his counsel. In addition, Thompson does not admit in the agreed facts that he actually did communicate with the sheriffs office, rather, he simply acknowledges that “Rogers received a letter from the Sheriff of Lee County, Mississippi advising him that Respondent instructed his office to take no action, as the matter was a civil matter.”

¶ 45. Even if Judge Thompson did communicate with the sheriffs office, the record before us does not establish that a criminal “investigation” or “case” even existed. We are not told whether the sheriffs office thought an investigation of Rogers’s claim was warranted, and there is nothing in the agreed facts to tell us that the sheriffs office even suspected that a crime had been committed. Rogers apparently was attempting to have the owner of the land charged with theft of livestock, a felony under Mississippi Code Section 97-17-53 (Rev. 2006); thus, Judge Thompson’s “refusing] to allow” Rogers to file a criminal affidavit would not have precluded the State from proceeding with an investigation and, possibly, with an indictment. See Miss.Code Ann. § 99-33-1(2) (Rev. 2007) (granting justice courts jurisdiction, concurrent with circuit courts, over misdemeanor criminal charges).

¶ 46. Notably, the matter ultimately was handled through a civil action, and the agreed facts do not reveal that the State ever attempted to pursue a criminal indictment. Therefore, it does not appear that Judge Thompson made a “mistake of law” in “advising Rogers that the case was a civil case.” Maj. Op. ¶ 5. Indeed, judges are constitutionally 'prohibited from issuing arrest warrants in the absence of a belief that probable cause exists. U.S. Const, amend. IV; Miss. Const, art. 3, § 23. Thus, the agreed facts indicate that Judge Thompson was simply performing his constitutional duty by “advising Rogers that the case was a civil case” in which a criminal charge would not have been appropriate.

¶47. Without any information regarding the alleged communication between Judge Thompson and the sheriff, or whether there was in fact an ongoing criminal investigation, Count One does not set forth any sanctionable conduct. This Court’s sanctioning Judge Thompson for a “communication with the [sjheriff s office,” sets a dangerous precedent, for there often are legitimate, necessary ex parte communications between justice court judges and law enforcement officials (e.g., concerning arrest warrants, search warrants, setting of bail). Our justice court judges frequently are in contact with law enforcement officials, more so than the judges of any other court, and sanctioning Judge Thompson for nothing more than a “communication” with the sheriffs department could produce counterproductive results at the grassroots level of our state’s criminal justice system. This Court should recognize that there is a difference between impermissible ex parte communications with judges concerning their adjudication of cases and the necessary, legitimate interaction that must occur between them and other functionaries in the system.

Count Three

¶ 48. In discussing Count Three, the majority distinguishes Judge Thompson’s actions from those addressed in two recent cases, McGee, 71 So.3d 578, and Mississippi Commission on Judicial Performance v. Little, 72 So.3d 501 (Miss.2011), by explaining that Judge Thompson engaged in ex parte communication with the parties, gave no notice to prosecuting authorities, and that he interfered with a case assigned to another judge. I do not find the agreed facts to be so clear. We are told that “Respondent had previously nonadjudicat-ed the minor,” but we are not told whether the nonadjudication was for the July 21, 2008, DUI charge or for some other infraction. We also are told that the DUI case was originally assigned to another justice court judge, but it is not clear whether the case was still assigned to another judge when Judge Thompson nonadjudicated the charge. Next, we are told that “[wjhen the officer came into the clerk’s office to inspect the file prior to court, it was discovered that Respondent had previously nonadjudicated the minor.... ” This suggests that no notice was given to the prosecuting authorities; but, similarly, this is not entirely clear from the facts presented to us. Finally, Judge Thompson nonadju-dicated the charge “at the request of Galloway and her father.” This implies that an improper ex parte communication took place, but the request may also have been in the form of a properly noticed motion. There simply are too many gaps in the agreed facts to warrant sanctions; this Court has not been provided a sufficiently clear and complete statement of the relevant facts and circumstances.

Count Five

¶ 49. The agreed facts in Count Five say that the defendants “supplied proof of insurance obtained after the fact.” Unlike the majority, I decline to speculate whether “obtained after the fact” refers to the proof of insurance document or to insurance coverage itself. If the proof of insurance was obtained after the citation, but coverage existed when the citation was issued, Judge Thompson was correct to dismiss the cases. Miss.Code Ann. § 63-15-4(5) (Rev. 2007).

¶ 50. Yet, even if insurance coverage was obtained after the citation was issued, there is nothing to indicate that Judge Thompson’s dismissing the cases was anything more than a mistake of law on his part. The majority imputes knowledge to Judge Thompson based on eleven instances over a four-month period. Maj. Op. ¶ 6. But, repeating a mistake would not make the conduct willful unless and until Judge Thompson had been disabused of his misunderstanding. A person — even a judge— can repeat the same mistake an infinite number of times without knowing it to be a mistake. Again, the agreed facts, as written, do not describe sanctionable misconduct.

Count Six

¶ 51. As to Count Six, the majority finds that Judge Thompson “interjected himself into [a] separate civil matter[ ] ... when no case was pending before him ... by advising a divorce litigant.” Maj. Op. ¶ 23. But, the facts do not clearly disclose that a filed matter actually was pending in the chancery court. We are told only that a male person was “involved in a divorce” and that “[t]he officer was advised by his dispatcher that any order concerning the matter must come from the Chancery Court judge.” On the other hand, the parties were before Judge Thompson on “a family disturbance matter.” Given the generic description of the type of case before Judge Thompson, and given that it is not apparent whether a matter had been filed and was then an active case in chancery court, I cannot say with confidence that Judge Thompson “improperly involved himself in a domestic civil matter ... when there was no case pending before him.” Maj. Op. ¶¶ 18, 23.

¶ 52. The facts do suggest that there may have been an improper ex parte communication with the man involved, and that Judge Thompson may have attempted, improperly, to aid the litigant by personally telephoning the officer; but, once again, the agreed facts are ambiguous. Despite the majority’s finding to the contrary, Judge Thompson did not admit in the agreed facts that he had “advis[ed] a divorce litigant.” Maj. Op. ¶ 23. Moreover, there are numerous scenarios in which a justice court judge legitimately can be involved in domestic matters pending in chancery court, such as those arising under our statutes on domestic violence, burglary, assault, kidnapping, child neglect, murder, and others.

Duty to Report Attorney Misconduct

¶ 53. Finally, although I agree that Counts Two and Four provide a sufficient factual basis for sanctions against Judge Thompson, our ruling should not be limited to the judge. In both situations, members of the Mississippi Bar played active roles in the misconduct. Our Rules of Professional Conduct tell us that, “[i]t is professional misconduct for a lawyer to ... knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” Miss. R. of Profl Conduct 8.4(f). In addition,

A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

Miss. R. of Profl Conduct 8.3(a). In the present case, Counts Two and Four involved lawyers’ asking a nonlawyer judge to engage in conduct that this Court has adjudicated sanctionable. Thus, as a matter of law, these lawyers seem to have violated Rule 8.4(f), and as members of the Bar, we justices are duty-bound to report this apparent professional misconduct. Miss. R. of Profl Conduct 8.3.

¶ 54. Moreover, at least five members of the Mississippi Commission on Judicial Performance also are lawyers, and, it follows that they too are required to report lawyers’ misconduct. Miss. Const, art. 6, § 177A. While a report may have occurred, we are not informed whether the Bar has been notified of the Commission’s findings in the present case. In future judicial performance matters, where it is apparent that attorneys have actively participated in the alleged misconduct, the Commission should take steps to “inform the appropriate professional authority,” and also should notify this Court whether such report has been made.

Conclusion

¶ 55. In criminal cases, resolved by agreement between the prosecution and the defendant, the trial judge must confirm that there is, indeed, a factual basis for a guilty plea. URCCC 8.04 A(3). Likewise, before meting out sanctions in a judicial performance matter, this Court must be assured that the agreed facts set forth a distinct basis for sanctions warranted by clear violations of Mississippi’s Code of Judicial Conduct. Because misconduct is apparent in only two of the six counts, I would remand the case to the Commission for further development.

      . A strained reading of the agreed facts may suggest that Judge Thompson violated Mississippi Code Section 99-33-2(3), which criminalizes a justice court judge's failure to forward criminal affidavits and other supporting documents to the court clerk. Yet, nothing in the record indicates that the Commission thought a violation of this statute had occurred.

      . The Commission found that Judge Thompson had "non-adjudicated the minor in violation of the provisions of Mississippi Code [Section] 63-11-30(3).” But, as in McGee, 71 So.3d 578, and Little, 72 So.3d 501, Judge Thompson's disposition of the case may have been based on a good faith interpretation of the law, especially given the confusing language of the statutes in question. Mississippi Code Section 63-11-30(3) is referred to as the "Zero Tolerance for Minors” law, but it does not apply if the accused's blood alcohol content (BAC) is more than .08%. Because Galloway's BAC was .09%, subsection (2) would apply. The "Zero Tolerance for Minors” law allows for nonadjudication of a charge, but subsection (2) is silent on that subject. Thus, Mississippi Code Section 63-11-30 does not prohibit a judge's nonadjudicating a minor charged with driving under the influence with a BAC of more than .08%.
      Mississippi Code Section 99-15-26, which permits dismissal of certain criminal charges upon the accused’s completion of conditions imposed by the court, does not apply to any charge "under the Mississippi Implied Consent Law.” Miss.Code Ann. § 99 — 15—26(l)(c) (Rev. 2007). However, the procedure contemplated by Section 99-15-26 is not the same as the nonadjudication alternative described in the "Zero Tolerance for Minors” law. Indeed, Section 99-15-26 does not use the term nonadjudication. But see McGee, 71 So.3d at 585 (noting that Mississippi Code Section 99-15-26(l)(c) (Supp.2010) prohibits the nonadjudication of charges under the Mississippi Implied Consent Law).

      . The Commission's brief alleges that the "defendants were issued citations for having no insurance and they later acquired insurance.” Judge Thompson did not sign the brief, and we do not consider facts outside the agreed statement of facts. Miss. Comm'n on Judicial Performance v. Dearman, 66 So.3d 112, 115 (Miss.2011) ("Although Judge Dearman is allowed to submit a brief, this Court will not consider exhibits or factual allegations and assertions that were not presented below.”) (citing M.C.J.P. Rule 10D)).


source: Caselaw Access Project

author: KING, Justice, for the Court:

license: Public Domain

text:
    CITY OF BELZONI, Mississippi, et al. v. Shirley JOHNSON.
    No. 2010-CA-01879-SCT.
    Supreme Court of Mississippi.
    Feb. 16, 2012.

      Stephanie Nicole Morris, Thomas Morris, Sr., attorneys for appellants.
    Steven Craig, Panter Ronald, Earl Stutzman, Jr., attorneys for appellee.
    Before WALLER, C.J., KITCHENS and KING, JJ.
   KING, Justice, for the Court:

¶ 1. Pursuant to 42 United States Code Sections 2000e-5 and 1983, Shirley Johnson brought suit against the City of Belzo-ni; Mickey Foxworth, individually and in his capacity as City of Belzoni Police Chief; and David James, City of Belzoni police officer. Johnson claimed she was sexually harassed at work by James for approximately a year. Johnson reported the harassment to her supervisor, Fox-worth, but claimed insufficient action was taken to remedy the situation. This matter proceeded to trial, and the jury returned a unanimous verdict of $150,000-$50,000 against each of the defendants, in favor of Johnson. Aggrieved, the defendants filed a motion for judgment notwithstanding the verdict, or in the alternative, a new trial. The motion was denied and the defendants appealed. Finding that the sufficiency and weight of the evidence support the jury’s verdict, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 7, 2004, Johnson was hired by the City of Belzoni Police Department as a patrol officer policing school grounds. When she joined the police department, she was the only female police officer on the force. She remained the only female on the force for approximately six months. Johnson claims that, once she began work, James began to sexually harass her. Pursuant to the City of Belzoni Police Department Policy on “Harassment in the Workplace,” Johnson reported the harassment to her supervisor, Foxworth. Johnson and Foxworth also reported the situation to Mayor Wardell Walton, who, as mayor, is responsible for the enforcement of all city policies. In August 2005, Johnson accepted a full-time management position at Double Quick in Belzoni, but she continued to work for the Belzoni Police Department on a part-time basis.

¶ 3. On September 21, 2005, Johnson filed her charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC conducted an investigation and issued a determination letter, stating:

The investigation showed that [Johnson] was subjected to sexual harassment by a co-worker and that she lodged two complaints to the proper authority. The [City of Belzoni-Police Department] failed to take the complaints seriously or take positive action necessary to put the co-worker’s inappropriate behavior in check and ensure that further harassment would not occur.

¶ 4. On June 19, 2006, the EEOC issued a right-to-sue letter, and on September 15, 2006, Johnson filed suit in the Humphrey’s County Circuit Court claiming that she had been subjected to gender discrimination, including sexual harassment, in her workplace in violation of 42 United States Code Sections 2000e-5 and 1988. On April 27, 2010, the defendants filed a motion for summary judgment. On June 14, 2010, the court denied the motion and on June 16, 2010, the matter proceeded to trial. Johnson was the first witness to testify. According to Johnson, James repeatedly had asked her for a date when she began working for the police department. Johnson testified that after she refused to date James, he had directed profanity and sexual innuendos at her. Specifically, Johnson testified that James said, “I didn’t want a date no way. I just want to [expletive] you.” Johnson testified that she reported the harassment to Foxworth, and he agreed to talk to James regarding his behavior.

¶ 5. Johnson testified that the harassment continued, and James made comments nearly every day at work and, usually, in front of other officers. Johnson testified that she usually would encounter James before the beginning of her shift, upon her arrival at the station to clock in, before reporting to her assigned school. According to Johnson, “[E]ach morning that I would go to work, he had some type of remark that he had to say, talking about me under my clothes and how he wanted to [expletive] me and how Jesus told him he was going to get this and all of that, while the other guys sit out there and laugh.” Johnson testified that, approximately two months after she first reported James’s behavior to Foxworth, she reported the continued harassment to Foxworth.

¶ 6. When the school year ended in May, Johnson testified that her schedule changed, and she worked different, rotating, patrol shifts. Johnson testified that, once she began working the different shifts, James had made comments directly related to her work as a police officer. Johnson specifically indicated that, on one occasion, James had refused to contact Johnson for back-up support, and instead had contacted the sheriffs department because he “needed manpower, and not female power.” Johnson testified that she reported the incident to Foxworth, her third complaint against James.

¶ 7. Johnson testified that the harassment was an ongoing issue. According to Johnson, she reported the harassment to Mayor Walton as well. Johnson testified that, on two separate occasions, she informed Mayor Walton that she was not treated fairly at the police department because she was female. According to Johnson, Foxworth was present during one of those occasions. Johnson testified that she informed Mayor Walton of unfair practices in the scheduling of officers and of the harassment she had suffered.

¶ 8. Johnson indicated that she was unaware of any action Foxworth or Mayor Walton took in response to her reports. Johnson testified that James’s behavior offended and humiliated her and caused her to suffer chest pains and headaches, making it difficult to sleep. According to Johnson, she decided to take a management position at Double Quick to escape the work environment at the police department. Johnson said:

By his statements and the way David James treated me, it made me feel as if I was just a piece of meat, when I go to work, I felt like I might have been two feet tall. I just felt I couldn’t do my job anymore — seems like he just took everything away from me.... I mean my confidence, my self respect.... [I]t’s just hard to work there. And I don’t know if he had my back when I was working on a shift with him or not. I don’t know if they really have my back.... Because there have been times I called for back-up, I don’t get any.

¶ 9. Johnson testified that she continued to work part-time for the police department, but only on certain days, to avoid working with James. Even working part-time, Johnson testified that the harassment continued. Johnson explained that in August 2005, she and James had an altercation over badge numbers. According to Johnson, badge numbers could signify seniority, and Foxworth had recently changed the officers’ badge numbers. Due to the change, Johnson’s badge number reflected seniority over James. Johnson testified that James became angry and began shouting at her. According to Johnson, she responded that the number was insignificant and James said, “[Expletive ], you going to watch how you talk to me.” Johnson testified that she understood his comment to be derogatory to her as a female, “by me being a female, he thought I wasn’t no police and I couldn’t do nothing.”

¶ 10. Foxworth testified and corroborated that Johnson had reported James for harassment, but only on two occasions. Foxworth testified that when Johnson first reported the harassment to him, she did not want any disciplinary action taken. According to Foxworth, Johnson asked him to talk to James regarding his behavior. Foxworth testified that he met with James, who denied the allegations. As for Johnson’s second report of harassment, Foxworth testified that he followed procedure.

¶ 11. According to the “Harassment in the Workplace” policy of the Belzoni Police Department, each supervisor has certain responsibilities regarding the prevention of harassment. The responsibilities include: monitoring the unit work environment on a daily basis for signs that harassment may be occurring, counseling all employees on the types of behavior prohibited and the department procedures for reporting complaints of harassment, stopping any observed acts that may be considered harassment, and taking immediate action to limit the work contact between two employees when there has been a complaint of harassment, pending investigation. Furthermore, according to the policy, once a supervisor is informed of harassment in the workplace, the supervisor is responsible for assisting the employee in documenting a formal complaint, investigating the complaint and preventing future harassment.

¶ 12. Foxworth testified that he had investigated the accusation by speaking with other officers and patrolling when both officers were working, and in doing so, found no proof that the harassment had occurred. Foxworth stated that sexual harassment was discussed at periodic meetings at the station, but he also acknowledged that many of his officers did not like to work with female officers. In an attempt to resolve the situation, Fox-worth testified that he had placed James and Johnson on different shifts so they would work together less frequently. Fox-worth explained that he could not keep them completely separated because of the size of the police department. Foxworth admitted that no formal complaint was documented.

¶ 13. Mayor Walton testified that Johnson had informed him that she was not being treated equally or fairly while at work for the police department. According to Mayor Walton, Johnson first approached him regarding the situation directly after the election, and he explained to her that he would follow up with her. Mayor Walton testified that Johnson later had returned with Foxworth and had explained that she was being treated unfairly at work. Mayor Walton testified that he had instructed Foxworth to investigate the situation. Mayor Walton testified that, because of the results of Foxworth’s investigation, no action was taken by the City of Belzoni.

¶ 14. James testified that he never had asked Johnson on a date or harassed her in any way. James explained that he had a girlfriend during the time the alleged events took place. James testified that he and Johnson were friends, and that he had attended parties and cook-outs at Johnson’s home before and after Johnson had made the allegations. James stated that he “treated her like one of the guys.” According to James, when Foxworth had confronted him about the harassment allegations, he had denied that any harassment had ever occurred. Even so, James testified that he and Johnson were both written up and then scheduled for different shifts because of the allegations. According to James, he and Johnson had maintained their friendship after the meeting with Foxworth.

¶ 15. James also testified that, once Johnson was working part-time, he and Johnson had argued over their badge numbers and seniority. According to James, Johnson had overheard James speaking to another officer regarding the change in badge numbers; Johnson had became aggravated and had started yelling obscenities at him; and James had responded by yelling obscenities at her. James testified that they were both written up for the incident.

¶ 16. Fellow officers Truron Grayson, Ronnie Buchanan, Lester Jones, and Loto-sha Seals also testified. The officers admitted that there were occasions when graphic language was used in conversation and innuendos were used pertaining to sexual activity. Each of the officers testified that Johnson was a participant in the conversations, and that she had never seemed offended. The officers testified that they were unaware of any problem between Johnson and James. Jones testified that he thought Johnson and James were friends because Johnson would invite Jones and James to dinner on a regular basis.

¶ 17. Only Officer Seals agreed with Johnson’s claim of gender discrimination within the police department. Officer Seals testified that “the female officers were, in fact, treated differently than the male officers.” Officer Seals explained that the male police officers were given patrol cars and provided with bullet-proof vests, while the female officers were not. Officer Seals stated that discrimination existed, but it was not sexual in nature, and it was reported to Foxworth.

¶ 18. The jury returned a $150,000 verdict in favor of Johnson. On June 28, 2010, the defendants filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. On November 3, 2010, the defendants’ motion was denied, and defendants then filed their notice of appeal.

DISCUSSION

¶ 19. The defendants raise the following issues on appeal: (1) whether the trial court erred in denying their motion for summary judgment; (2) whether the trial court erred in allowing Johnson to maintain a Title YII action against both the City of Belzoni and its agents for the same cause of action; (3) whether the trial court erred in failing to dismiss Foxworth and James from the Section 1983 claim; (4) whether Johnson proved she was subjected to a hostile or abusive work environment; (5) whether the exclusive remedy of this cause of action is provided by the Mississippi Tort Claims Act; (6) whether the jury abandoned its oath when it returned a $150,000 verdict for Johnson; and (7) whether the trial court erred in denying the defendants’ motion for judgment notwithstanding the verdict, or in the alternative, for a new trial.

1. Motion for Summary Judgment

¶ 20. This Court reviews a trial court’s grant or denial of summary judgment de novo. One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss.2007). Summary judgment should be rendered when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). The moving party bears the burden of showing that no genuine issue of material fact exists, whereas the nonmoving party is given the benefit of the doubt as to the existence of a material fact. Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005). When considering a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party. Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006).

¶ 21. The defendants argue that the trial court erred in failing to grant their motion for summary judgment. Within the motion for summary judgment, the defendants argued that Johnson was not entitled to maintain a Title VII action (42 U.S.C. § 2000e-5) against both the City and its employees and that Johnson could not prove her work environment was hostile. As for the Title VII claim, Johnson’s counsel clearly stated, both during pretrial motions and at trial, that Johnson was pursuing a Title VII claim against only the City of Belzoni. Thus, this issue is without merit, as it is moot.

¶ 22. As for Johnson’s claim of a hostile work environment, the trial court was presented with conflicting testimony. Because “[a] motion for summary judgment is not a substitute for trial of disputed fact issues,” the trial court was correct to deny the defendants’ motion for summary judgment. Owens Corning v. R.J. Reynolds Tobacco Co., 868 So.2d 331, 335 (Miss.2004). There was no error in denying the defendants’ motion for summary judgment.

2. Title VII

¶ 23. The defendants argue that the trial court erred in allowing Johnson to maintain a Title VII action against both the City of Belzoni and the individual defendants, Foxworth and James. Johnson’s counsel clearly stated, both during pretrial motions and trial, that Johnson was pursuing a Title VII claim against only the City of Belzoni. In Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 2273, 141 L.Ed.2d 633 (1998), the United States Supreme Court established that an employer is liable under Title VII for coworker harassment under a negligence theory if the employer knew, or should have known, and failed to take prompt or remedial action.

¶ 24. Johnson’s intentions regarding her Title VII claim were clearly articulated. The instruction to the jury was clear that Johnson was asserting a Title VII claim against only the City of Belzoni, and stated:

[T]he employer becomes liable if it becomes aware of the harassment but fails to take prompt remedial action to stop the harassment.
Therefore, in order for Shirley Johnson to prevail on her claim against the City of Belzoni, she must prove all of the following elements of her claim by a preponderance of the evidence:
1. That she was subjected to harassment in the workplace and that the harassment was based on her gender (female);
2. That the harassment was sufficiently pervasive or severe to create an abusive work environment; and
3. That the City of Belzoni was aware of the harassment but failed to take prompt remedial action to stop it.

¶ 25. According to the “Harassment in the Workplace” policy of the Belzoni Police Department, each supervisor has certain responsibilities regarding the prevention of harassment. The responsibilities include: monitoring the unit work environment on a daily basis for signs that harassment may be occurring, counseling all employees on the types of behavior prohibited and the department procedures for reporting complaints of harassment, stopping any observed acts that may be considered harassment, and taking immediate action to limit the work contact between two employees when there has been a complaint of harassment, pending investigation. According to the policy, once a supervisor is informed of harassment in the workplace, the supervisor is responsible for assisting the employee in documenting a formal complaint, investigating the complaint and preventing future harassment.

¶ 26. Johnson argues that Foxworth and Mayor Walton failed to take any action to resolve the situation. Johnson did not pursue a Title VII claim against James or Foxworth individually. Instead, her claim was against the City of Belzoni under a negligence theory, as permitted by the United States Supreme Court. This issue is without merit.

3. Section 1983

¶ 27. The defendants argue that the trial court erred in allowing Johnson to maintain a Section 1983 against Foxworth and James. Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983 (Rev. 2009).

¶ 28. Section 1983 encompasses both official-capacity and personal-liability actions against state officials. The United States Supreme Court previously has held that:

[T]o establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. More is required in an official-capacity action, however, for a governmental entity is liable under § 1983 only when the entity itself is a “ ‘moving force’ ” behind the deprivation; thus, in an official-capacity suit the entity’s “policy or custom” must have played a part in the violation of federal law.

Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (citations omitted).

¶ 29. The defendants suggest that, because neither Foxworth nor James is a policymaker, the necessary elements to maintain a Section 1983 action against either of them in their official capacities do not exist. The record, including the complaint and the trial transcript, specify that Johnson named Fox worth and James as defendants in their individual capacities in order to hold them responsible for their own actions. Johnson claimed that James continually harassed her and Foxworth failed to remedy the situation. Pursuant to Kentucky v. Graham, this Court previously has recognized that state officials can be subject to personal liability in Section 1983 actions. East Miss. State Hosp. v. Callens, 892 So.2d 800, 809, 810-811 (¶¶ 15-19) (Miss.2005). This issue is without merit.

4. Hostile Work Environment

¶ 30. The defendants argue that Johnson did not establish the existence of a hostile work environment, which is a necessary element of a Title VII claim. Title VII makes it unlawful “for an employer ... to discriminate against an individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, col- or, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). The phrase “terms, conditions or privileges of employment” has been interpreted to provide a cause of action to a person who works in a discriminatorily hostile environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 20, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993).

¶ 31. The United States Supreme Court provided the standard to be applied to determine whether an environment is hostile:

Whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is relevant in determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.

Id. at 23.

¶ 32. In the instant case, Johnson described the conduct of James as outrageous, indecent and abusive. According to Johnson, James insulted her ability as a police officer because of her gender and made her the target of unwanted sexual innuendos and vulgar comments. Johnson testified that the behavior had continued for nearly a year on a daily basis. Johnson testified that she had reported the incident to Foxworth, who corroborated her testimony of reporting the harassment, and that she felt no action had been taken in regard to the complaints. Johnson testified that, as a result of James’s behavior, she had suffered from physical and emotional injuries and felt as if she could no longer perform her occupational duties.

¶ 33. Under the principles announced in Hams, there was sufficient evidence to indicate a hostile working environment caused by James’s behavior, as well as the corresponding failure of Foxworth and the City of Belzoni to rectify the situation. This issue is without merit.

5. Mississippi Tort Claims Act

¶ 34. The defendants argue that Johnson’s federal claims are barred by the procedural requirements of the Mississippi Tort Claims Act, including providing appropriate notice. This Court has already determined that the Mississippi Tort Claims Act does not apply to a Section 1983 claim. McGehee v. DePoyster, 708 So.2d 77, 80 (Miss.1998). In McGehee, this Court relied on the United States Supreme Court’s decision in Felder v. Casey, 487 U.S. 131, 140-41, 108 S.Ct. 2302, 2307-08, 101 L.Ed.2d 123, 139-40 (1988), specifically holding that state notice-of-claim requirements are not applicable to Section 1983 actions brought in state courts.

¶ 35. In Felder, the court held:

[The States’s] authority does not extend so far as to permit States to place conditions on the vindication of a federal right. Congress meant to provide individuals immediate access to the federal courts and did not contemplate that those who sought to vindicate their federal rights in state courts could be required to seek redress in the first instance from the very state officials whose hostility to those rights precipitated their injuries.

Id.

¶ 36. The same principles announced in Felder and McGehee are applicable in regard to the Title VII claim. As previously stated, the Mississippi Legislature has no authority to place a condition on the vindication of a federal right. “The decision to subject state subdivisions to liability for violations of federal rights, however, was a choice that Congress made, and it is a decision that the State has no authority to override.” Id.

¶ 37. For the above-mentioned reasons, the notice requirements of the Mississippi Tort Claims Act are not applicable to a Title VII or Section 1983 claim. This issue is without merit.

6. Jury Verdict

¶ 38. The defendants argue that the jury abandoned its oath when it returned a $150,000 verdict in favor of Johnson. During trial, the jury was instructed to award damages only for emotional pain, suffering, inconvenience, and mental anguish. Both Title VII and Section 1983 provide the right to recover compensatory damages for emotional distress. See 42 U.S.C. § 1981a (Rev. 2009).

¶ 39. The defendants claim that the amount awarded by the jury was not supported by evidence. It is true that compensatory damages for emotional distress may be awarded only when specific evidence of actual harm is introduced. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 808 (5th Cir.1996) (citing Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). However, testimony of the plaintiff alone may be enough to satisfy this requirement. See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1046 (5th Cir.1998); Forsyth v. City of Dallas, 91 F.3d 769, 774 (5th Cir.1996).

¶ 40. In the instant case, Johnson testified that James’s behavior had affected her confidence, self respect, and dignity. Johnson testified that James’s behavior had offended and humiliated her. According to Johnson, she no longer wanted to be attractive to anyone. Johnson explained that she cut her hair very short so that no one would find her attractive. She testified that, “Physically, I started suffering with chest pains and headaches, unable to sleep.” According to Johnson, she decided to take a management position at Double Quick in order to escape the work environment at the police department. Thus, there was sufficient evidence to support the jury’s award. This issue is without merit.

7. Motion for Judgment Notwithstanding the Verdict or New Trial

JNOV

¶ 41. The defendants argue that the trial court erred in denying their motion for judgment notwithstanding the verdict or in the alternative, a new trial. We will affirm the denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict if there is substantial evidence to support the verdict. U.S. Fid. & Guar. Co. v. Martin, 998 So.2d 956, 964 (Miss.2008).

¶ 42. Johnson testified that James had used vulgar, profane language and sexual innuendos towards her. According to Johnson, she had reported the situation to Foxworth on three separate occasions. Foxworth testified and corroborated that Johnson had, in fact, reported being harassed. Mayor Walton also testified and stated that Johnson had reported being treated unfairly.

¶ 43. A fellow officer, Seals, testified that discrepancies had occurred in the treatment of female officers within the police department. According to Seals, she also had reported differential treatment between the sexes to Foxworth.

¶ 44. The determination letter from the EEOC, which stated that the EEOC had investigated the charge and had granted Johnson the right to sue, was entered into evidence. The record holds sufficient evidence to support the jury’s verdict.

New Trial

¶ 45. As for the motion for a new trial, this Court “will only reverse the denial of a motion for a new trial when the trial court has abused its discretion.” Davis v. Wal-Mart Stores, Inc., 724 So.2d 907, 910 (¶ 11) (Miss.1998) (citation omitted). “A motion for a new trial may be granted in several circumstances including where faulty jury instructions have been given, where the verdict is against the overwhelming weight of the evidence, or where bias, passion, or prejudice have tainted the jury’s verdict.” Id. (citations omitted).

¶ 46. Both versions of events were presented to the jury; Johnson testified as to her alleged harassment, and the defense presented testimony of witnesses who denied any form of harassment. Thus, the case presented a question of witness credibility, which is for the jury alone. In reviewing the weight of the evidence supporting a verdict, this Court will not “pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.” Massey v. State, 992 So.2d 1161, 1163 (¶ 12) (Miss.2008).

¶ 47. We find that trial court did not err in denying the defendants’ motion for judgment notwithstanding the verdict or in the alternative, a new trial. This issue is without merit.

CONCLUSION

¶ 48. Based on this discussion, the judgment of the trial court is affirmed.

¶ 49. AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . In December 2005, based on the company's employment needs, Johnson relocated with her management position to the Double Quick in Yazoo City.

      . Slang expression for his desire for sexual intercourse.

      . Derogatory term for a female.


author: LEE, C.J., ROBERTS, J., CARLTON, J.,

text:
    Connie Lynn ARMSTEAD, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00383-COA.
    Court of Appeals of Mississippi.
    June 21, 2011.
    Rehearing Denied Nov. 1, 2011.
    Certiorari Denied Feb. 9, 2012.

      Roberta Lynn Haughton, West Point, attorney for appellant.
    Office of the Attorney General by John R. Henry Jr., attorney for appellee.
    LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Connie Lynn Armstead was convicted by a jury in the Oktibbeha County Circuit Court of Count I, robbery, and Count II, directing a minor to commit a felony. On Count I, Armstead was sentenced to serve ten years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay a $1,000 fine as well as $765 in restitution. On Count II, Armstead was sentenced to serve ten years in the custody of the MDOC and ordered to pay a $1,000 fine. The trial court ordered the sentence in Count II to run consecutively to the sentence imposed in Count I.

¶ 2. Armstead filed post-trial motions, which were subsequently denied. Arm-stead now appeals, asserting that: her guilty verdict in Count I is against the overwhelming weight of the evidence, and there was insufficient evidence to support the guilty verdict in Count II. Finding error in regard to Count II, we must reverse and render. However, we find no error in regard to Count I and affirm.

FACTS

¶ 3. On April 20, 2009, Ashley Hemphill was headed to Starkville, Mississippi, from Jackson, Mississippi. Hemphill was a student at Mississippi State University (MSU). According to Hemphill, she noticed a black Oldsmobile Alero behind her with its lights on bright. Hemphill first noticed the ear as she was passing Northwest Rankin High School, located on Highway 25 in Flowood, Mississippi. Hemphill testified that the car pulled in front of her, slammed on its brakes, returned to the other lane, and then drove closely behind her car. Hemphill stated that she applied her brakes. The black car then pulled next to her car, and the passenger, later identified as Armstead, hung out of the window shouting at Hemphill. At some point during the drive, Hemphill was able to write down the license tag number of the black car.

¶ 4. As Hemphill arrived in Starkville, she drove to her sorority house on MSU’s campus. Hemphill testified that the black car was still behind her at this point. Hemphill sat in her car for a minute to see where the black car went and called her mother, Patty Hemphill. As Hemphill was exiting her car, she was accosted by Arm-stead, Preston Harris, and Cedrick Minor. Patty testified that she heard a female voice yell, ‘You rich white bitch, I’m going to beat your ass.” Patty heard some other curse words before the call was disconnected.

¶ 5. Hemphill testified that Armstead began yelling that Armstead was going to beat her. Armstead then pushed Hemp-hill onto a car and began to strike Hemp-hill in the face. Hemphill testified that Armstead grabbed her cell phone and car keys, and then Armstead punched her again. Hemphill stated that Harris also punched her in the face and took her purse. Armstead, Harris, and Minor then ran away. Hemphill then ran into the sorority house, where someone called the police and gave them the license tag number of the black car.

¶ 6. Courtney Armstead, Armstead’s sister, testified that Armstead came to her house between eight and nine o’clock on the night of April 20, 2009. Armstead told Courtney that she had been in a fight. Courtney stated that Harris and Minor also entered her home and that Minor was carrying a purse. Courtney testified that after Armstead heard that the police were coming over, Armstead became frightened, changed her shirt, and pinned up her hair.

¶ 7. Minor testified that he was riding back to Starkville with Armstead and Harris when a car with its bright lights on pulled up behind them. Minor stated that Harris was driving and decided to get behind that car and turn on his bright lights. Minor testified that the car in front of them suddenly slammed on its brakes. Minor also stated that the three of them discussed what to do about the bright lights of the car shining on them. Armstead, Minor, and Harris decided that they would follow the car to its destination, and Armstead would fight the other driver. Minor saw Armstead push Hemphill, but he did not see Armstead or Harris strike her. After the altercation with Hemphill, Minor stated that he saw Harris with a purse and Armstead with a cell phone. They ultimately threw the cell phone out the car window and disposed of the purse behind Courtney’s house.

¶ 8. The police traced the car using the license tag number to Armstead’s mother. Armstead’s mother informed the police that Armstead was driving the car. Hemphill identified Armstead, Harris, and Minor as the perpetrators. Armstead denied any direct involvement in the assault and robbery of Hemphill. After giving several contradictory statements concerning the assault and robbery of Hemphill, Armstead admitted to hitting Hemphill but denied that she had taken Hemphill’s cell phone or purse.

DISCUSSION

I. ROBBERY

¶ 9. Armstead argues that the guilty verdict in Count I is against the overwhelming weight of the evidence. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (1118) (Miss.2005). Furthermore, it is well-settled law that the jury determines the credibility of witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 (¶ 17) (Miss.Ct.App.2003).

¶ 10. Robbery is defined as “feloniously takfing] the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person....” Miss. Code Ann. § 97-3-73 (Rev.2006). Arm-stead attacked Hemphill and grabbed her cell phone and car keys. One of Arm-stead’s accomplices took Hemphill’s purse. Although Armstead dropped the car keys, she left the scene with Hemphill’s cell phone and later disposed of it. Much of Armstead’s argument concerns the credibility of the witnesses. However, it is the jury’s job to determine credibility, and it clearly resolved any conflicts in the evidence in the State’s favor.

¶ 11. Armstead also contends that there was no proof she intended to rob Hemp-hill. There was proof that Armstead attacked Hemphill and grabbed her cell phone and car keys. Furthermore, “a person is presumed to intend that which he does.... ” Lee v. State, 244 Miss. 813, 819, 146 So.2d 736, 738 (1962). The jury inferred intent from Armstead’s actions. We cannot find that to allow the guilty verdict to stand would sanction an unconscionable injustice. This issue is without merit.

II. DIRECTING OR CAUSING A MINOR TO COMMIT A FELONY

¶ 12. Armstead also contends that there was insufficient evidence for the jury to convict her of Count II, directing or causing a minor to commit a felony. In challenging the legal sufficiency of the evidence, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’ ” Bush, 895 So.2d at 843 (¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)).

¶ 13. According to Mississippi Code Annotated section 97-1-6 (Rev.2006), “any person over the age of seventeen (17) who shall direct or cause any person under the age of seventeen (17) to commit any crime which would be a felony if committed by an adult shall be guilty of a felony....” Clearly, this statute pertains to persons over the age of seventeen and not persons who are seventeen at the time the crime is committed. Anyone who has reached their seventeenth birthday is technically over the age of seventeen even if only by one second. If the Legislature had intended for persons seventeen years of age to be included, then it would have worded the statute to say “any person seventeen or older.” Armstead was born on August 27, 1991, and the crime occurred on April 20, 2009. On the date of the crime, Armstead was only seventeen years old.

¶ 14. It is clear that the State failed to prove every element of the crime of directing a minor to commit a felony. Furthermore, the jury instructions failed to include the necessary language that Arm-stead be over seventeen at the time of the crime. As such, we must reverse and render Armstead’s conviction in regard to Count II.

¶ 15. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, ROBBERY, AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $1,000 FINE AND $765 IN RESTITUTION IS AFFIRMED; AND COUNT II, DIRECTING A MINOR TO COMMIT A FELONY, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO OK-TIBBEHA COUNTY.

MYERS AND ISHEE, JJ., CONCUR. ROBERTS, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, P.J., BARNES AND MAXWELL, JJ. IRVING, P.J., CONCURS IN RESULT ONLY. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. RUSSELL, J., NOT PARTICIPATING.

ROBERTS, J.,

concurring:

¶ 16. I concur with the majority’s decision that the evidence is insufficient to convict Connie Lynn Armstead for directing a minor to commit a felony. I agree that Armstead’s conviction under Count II must be reversed and rendered. I write separately because I arrive at the same result by a slightly different route.

¶ 17. The majority finds that clearly Mississippi Code Annotated section 97-1-6 (Rev.2006) pertains to persons over the age of seventeen and not persons who are seventeen at the time the crime is committed.” I do not find that this is clear. In my opinion, the age qualifier in section 97-1-6 is ambiguous. Section 97-1-6 sets forth that an accused must be “over the age of seventeen” to be convicted of directing a minor to commit a felony. There are two reasonable ways that one may be over the age of seventeen: (1) at least one day older than seventeen years old or (2) at least eighteen years old. Because there are two different but reasonable interpretations of that language, I do not agree with the majority’s conclusion that it is clear that one must be at least eighteen years old to be convicted under section 97-1-6. I find that it is ambiguous whether one must be eighteen years old or seventeen years and one day old.

¶ 18. “It is bedrock law in Mississippi that criminal statutes are to be strictly construed against the State and liberally in favor of the accused.” Coleman v. State, 947 So.2d 878, 881 (¶ 10) (Miss.2006) (citing McLamb v. State, 456 So.2d 743, 745 (Miss.1984)). “Where a statute is patently ambiguous, it must be interpreted in favor of the accused.” McLamb, 456 So.2d at 745 (citations omitted). In that light, an accused may only be convicted under section 97-1-6 if the evidence demonstrates, beyond a reasonable doubt, that the accused was at least eighteen years old at the time of the offense. Armstead was seventeen years old, and she remained a seventeen-year-old minor until her eighteenth birthday. Consequently, there was insufficient evidence to convict Armstead for directing a minor to commit a felony. With utmost respect for the majority, this distinction — subtle though it may be — is necessary to properly analyze the issue. Accordingly, I concur with the majority’s result.

GRIFFIS, P.J., BARNES AND MAXWELL, JJ., JOIN THIS OPINION.

CARLTON, J.,

concurring in part and dissenting in part:

¶ 19. I would affirm the trial court’s decision and affirm Armstead’s conviction as to all counts.