author: CARLSON, Presiding Justice, DICKINSON, Presiding Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Jimmy McGEE.
    No. 2011-JP-00114-SCT.
    Supreme Court of Mississippi.
    Aug. 11, 2011.
    Rehearing Denied Oct. 20, 2011.

      Darlene D. Ballard, John B. Toney, attorneys for appellant.
    Ronald D. Michael, Booneville, attorney for appellee.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed two formal complaints against Alcorn County Justice Court Judge Jimmy McGee, alleging willful misconduct and conduct prejudicial to the administration of justice which brings the office into disrepute. The Commission and Judge McGee submitted to this Court a joint motion for approval of the recommendation of a 120-day suspension from office without pay, a public reprimand, and assessment of costs of this proceeding in the amount of $100.

¶ 2. After our independent review, we agree that Judge McGee’s conduct violated various canons of our Code of Judicial Conduct and constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, thus causing such conduct to be actionable pursuant to the provisions of the Mississippi Constitution. Miss. Const, art 6, § 177A (1890). However, we respectfully disagree with the Commission’s recommendation. For the reasons discussed below, we find that Judge McGee’s actions warrant a public reprimand, suspension from office without pay for 270 days, and assessment of costs of this proceeding in the amount of $100.

FACTS AND PROCEEDINGS BEFORE THE COMMISSION

¶ 3. The Commission appropriately consolidated the two formal complaints and referred to the charge set out in Inquiry No.2009-241 as Count One, and to the charge set out in Inquiry No.2010-046 as Count Two. In lieu of a hearing before the Commission, Judge McGee (Respondent) and the Commission entered into an Agreed Statement of Facts and Proposed Recommendation, which states, the following:

COUNT ONE (2009-241)
During April, 2008 the Respondent learned that a relative of the Respondent had allegedly been the victim of a crime. Respondent actively participated in the investigation of the matter which resulted in the indictment and arrest of a person identified herein as “A.B.”
Subsequent to the indictment and arrest of A.B., the Respondent, in his official capacity as Justice Court Judge, interfered with the orderly prosecution of the ease against A.B. Respondent interfered with A.B.’s attempt to post bond, insisting that A.B. only be allowed to post a cash or written bond. Respondent became upset upon learning that A.B.’s family was allowed to post a property bond rather than a cash bond of $50,000 as Respondent proposed to law enforcement. Subsequently, the Respondent disrupted an executive session of the Alcorn County Board of Supervisors by entering the closed meeting uninvited, angrily complaining of the sheriffs actions relating to the bond and otherwise causing a disturbance and an interruption of the business of the said Board of Supervisors.
Respondent then interfered with A.B.’s attempts to employ legal counsel by discouraging local attorneys from representing A.B. thereby attempting to deny A.B. his constitutional right to counsel and to a fair criminal proceeding.
On or about the 13th day of April, 2009, Respondent appeared at the public hearing for acceptance of A.B.’s misdemean- or guilty plea and sentencing in the Circuit Court of Alcorn County, Mississippi. The presiding Circuit Judge allowed the Respondent to address the Court and the following was stated by Respondent on the record and in open court:
I could assure you that if anything like this ever happened to anybody that I know, my advice to them would be do not use the court, handle it themselves.
I would like for everyone in this court to know that had I had this to do over again we would never had went to a grand jury, that we would have taken care of this down at Biggersville, Mississippi, down on the farm like things should have been taken care of.
COUNT TWO (2010-046)
The Respondent, in his official capacity as Justice Court Judge, individually and in concert with others, allowed certain misdemeanor charges to be remanded, non-adjudicated and “retired to the files” without authority of law, thereby failing to properly adjudicate criminal matters assigned to him. Specifically, Respondent, upon Motion of the County Prosecuting Attorney to Retire to Files, allowed the de facto non-adjudication of charges of Driving Under the Influence (DUI), said conduct likewise amounting to a reduction of the charge, a violation of § 63-11-39 of the Mississippi Code of 1972, as amended, Implied Consent Law.
The Respondent, without authority of law and in violation of § 63-11-39 of the Mississippi Code of 1972, as amended, Implied Consent Law, on motion of the County Prosecuting Attorney and in concert with her, “retired to the files” charges of DUI upon defendants’ successful completion of alcohol and drug treatment programs when the Respondent knew, or should have known, that the successful completion of such treatment programs by defendants could not serve as a lawful basis for the non-adjudication of DUI charges.

¶ 4. This Agreed Statement of Facts and Recommendation (Agreement) was signed by John B. Toney, the Commission’s executive director, Judge McGee, and Judge McGee’s counsel. Thereafter, the Commission, based on this Agreement, submitted its Findings of Fact and Recommendation. The Commission found by clear and convincing evidence that by engaging in the conduct described in the Agreement, Judge McGee, in his official capacity as Justice Court Judge, Post 2, Alcorn County, Mississippi, had -violated certain canons of the Mississippi Code of Judicial Conduct, particularly: Canons 1 (charging judges to uphold the integrity and independence of the judiciary); 2A and 2B (charging judges to avoid impropriety and the appearance of impropriety, in all activities, including respecting and complying with the law and not allowing personal relationships to influence their conduct or judgment); 3B(2) and 3B(8) (charging judges to impartially and diligently perform their judicial duties by, inter alia, being faithful to the law and avoiding being swayed by partisan interests as well as disposing of all judicial matters promptly, efficiently and fairly); and 4A(2) (charging judges to conduct their extrajudicial activities so as to not demean the judicial office); and that this judicial conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute under Section 177A of the Mississippi Constitution of 1890.

¶ 5. On the other hand, the Commission further found in mitigation that Judge McGee had acknowledged his errors and had fully cooperated with the investigation by the Commission; that in count one, Judge McGee had acknowledged and regretted that, in his effort to protect his relative, he improperly had used the prestige of his office as justice court judge to interfere with the fair and orderly prosecution of A.B. and agreed that his actions could be considered demeaning to the office of justice court judge; that, additionally, in count two, each of the DUI charges was nonadjudicated upon written motion of the county prosecuting attorney; that Judge McGee was a nonlawyer and had relied to a certain extent upon the written motion of the county prosecuting attorney in deciding to nonadjudicate the DUI charges; that Judge McGee had ordered alcohol and drug treatment in lieu of conviction in an attempt to prevent recidivism, although Judge McGee acknowledged that the successful completion of the treatment programs could not serve as the basis for nonadjudication under the Implied Consent Law; and that Judge McGee no longer ordered defendants charged with DUI to treatment programs for the purpose of nonadjudication of DUI charges.

¶ 6. In the end, the Commission recommended that Judge McGee be suspended from office without pay for a period of thirty days in count one; suspended from office without pay for a period of ninety days in count two; publicly reprimanded; and assessed costs in the amount of $100. This recommended sanction resulted in a total recommended suspension of 120 days, without pay. These sanctions were consistent with the sanctions to which Judge McGee had agreed in the Agreed Statement of Facts and Proposed Recommendation submitted to the Commission.

DISCUSSION

¶ 7. This Court’s standard of review in judicial-performance proceedings is derived from Rule 10E of the Mississippi Rules of the Commission on Judicial Performance, which states:

Based upon a review of the entire record, the Supreme Court shall prepare and publish a written opinion and judgment directing such disciplinary action, if any, as it finds just and proper. The Supreme Court may accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission. In the event that more than one (1) recommendation for discipline of the judge is filed, the Supreme Court may render a single decision or impose a single sanction with respect to all recommendations.

This Court has succinctly stated its role in judicial-performance proceedings as:

The power to impose sanctions is delegated solely to this Court; it therefore follows [that] we have an obligation to conduct an independent inquiry of the record in order to make our final determination of the appropriate action to be taken in each case. In so doing, we will accord 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.

In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743, 746 (Miss.1982). See also Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 176-77 (Miss.2011).

I. WHETHER THE JUDGE’S CONDUCT CONSTITUTED WILLFUL MISCONDUCT IN OFFICE AND CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BROUGHT THE JUDICIAL OFFICE INTO DISREPUTE.

¶ 8. Our first inquiry is whether the Commission appropriately charged Judge McGee with judicial misconduct which is actionable under Section 177A of the Mississippi Constitution of 1890, as amended, by engaging in willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. We have defined willful misconduct as:

[T]he improper or wrongful use of the power of his [or her] 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 [or her] 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.

In re Anderson, 412 So.2d at 745 (other citations and quotations omitted).

¶ 9. As to count one, we previously have characterized a judge’s egregious public conduct which invoked his judicial office as willful misconduct. Miss. Comm’n on Judicial Performance v. Osborne, 977 So.2d 314, 315 (Miss.2008). Similar to Judge Osborne’s conduct, Judge McGee’s conduct constituted willful misconduct. The Commission found that Judge McGee, “in his official capacity of Justice Court Judge, interfered with the orderly prosecution of the case against A.B.” Judge McGee interfered with A.B.’s attempt to post bond, interrupted a closed Board of Supervisors’ meeting, discouraged local attorneys from representing A.B., and made statements in open court encouraging others to engage in vigilante justice, as opposed to using the court system to pursue justice.

¶ 10. Concerning count two, the Commission found that Judge McGee, on motion of the county prosecutor, “remanded, non-adjudicated, and ‘retired to the files’ ” twenty-one DUI charges.

¶ 11. Respectfully, this Court agrees in part, and disagrees in part, with the Commission’s findings and recommendations in this case. We agree with the Commission that, based on the agreed statement of facts, as to count one, Judge McGee’s actions, in his official capacity ,as Justice Court Judge, Post 2, Alcorn County, violated Canons 1, 2A, 2B, and 4A(2) of the Code of Judicial Conduct. However, as to count two, we find no violation of our judicial canons. The Commission’s Findings of Fact and Recommendations made a finding only as to Judge McGee’s violation of Mississippi Code Section 99-15-26 (Supp.2010) (the non-adjudication statute), and not Mississippi Code Section 63-11-39 (Rev.2004) (prohibiting the reduction of a DUI charge to a lesser charge under the Implied Consent Law). It is clear from the record before us that all twenty-one DUI cases were disposed of on motion of the Alcorn County Prosecuting Attorney, a lawyer. Judge McGee’s conduct depicted here is not akin to the conduct depicted by the judges in “ticket-fixing” cases. See e.g., Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 302 (Miss. 2007) (municipal judge passed fourteen speeding tickets to the files over objection of citing officer); Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000) (justice court judge dismissed eleven traffic tickets based upon ex parte communication with defendants and other persons). Nor is Judge McGee’s case similar to Mississippi Commission on Judicial Performance v. Sanford, 941 So.2d 209, 210 (Miss.2006) (justice court judge requested sheriff to inform arresting officer in DUI case to be late for court so that judge could dismiss DUI case for lack of prosecution).

¶ 12. Instead, we find this case to be more akin to Mississippi Commission on Judicial Performance v. Martin, 921 So.2d 1258 (Miss.2005). In Martin, a justice court judge denied bail to a defendant under the provisions of Article 3, Section 29 of the Mississippi Constitution of 1890. Id. at 1261. However, this constitutional provision provides that only county and circuit judges possess the authority to deny bail to an accused. Id. Judge Martin testified that she honestly believed she had the authority to deny bail and was unaware of the fact that this authority was vested only in county and circuit judges. Id. at 1265. This Court stated, inter alia, that “[w]e are required on a regular basis to reverse cases, where scholarly, well-intended judges err in applying the correct law.” Id. In finding that the record was devoid of any evidence that Judge Martin “exhibited bad faith or gross unconcern in exercising her duties,” we stated that “[a] simple mistake in the face of reasonable efforts to base decisions on controlling law is not sanctionable. To find otherwise could subject any judge to disciplinary action for honest errors.” Id. at 1268-69. In the end, we dismissed the Commission’s complaint filed against Judge Martin. Id. at 1269.

¶ 13. Returning to today’s case, the Commission acknowledged that all twenty-one DUI charges were passed to the files or nonadjudicated “upon written motion of the County Prosecuting Attorney; that Judge McGee was a non-lawyer and relied to a certain extent upon the written motion of the County Prosecuting Attorney,” in disposing of these DUI cases. Certainly there is not even an inference that Judge McGee acted in a clandestine or sinister manner in disposing of these DUI cases. To be perfectly clear concerning any perceived statutory violation on the part of Judge McGee, we have carefully analyzed Mississippi Code Section 63-11-39 (Rev. 2004), and we do not find that Judge McGee’s actions in sustaining the county prosecutor’s motions violated this statute. From the record before us, we are unable to determine if Judge McGee’s conduct was in violation of Mississippi Code Section 99 — 15—26(l)(c) (Supp.2010), which prohibits only the non-adjudication of charges under the Mississippi Implied Consent Law. Section 99 — 15—26(l)(c) does not prohibit DUI cases from being remanded or retired to the files. We must remember, however, that Judge McGee acted upon motion of the prosecuting attorney. Even assuming, arguendo, that Judge McGee’s rulings were erroneous, a mistaken interpretation of governing law would not be sanctionable, based on Martin. For the reasons discussed, we find there to be no sanctionable conduct on the part of Judge McGee as to count two.

¶ 14. However, as we have already stated supra, Judge McGee’s conduct depicted in count one of the agreed statement of facts is altogether different. Thus, in accordance with our precedent, we find that Judge McGee’s conduct, as depicted in the joint agreed statement of facts in count one, constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. For this reason, Judge McGee’s conduct is actionable under the provisions of Article 6, Section 177A, Mississippi Constitution of 1890.

II. WHETHER A PUBLIC REPRIMAND, SUSPENSION FROM OFFICE FOR 120 DAYS WITHOUT PAY, AND ASSESSMENT OF COSTS ARE APPROPRIATE SANCTIONS.

¶ 15. The Commission is charged with recommending disciplinary sanctions. Miss. Const, art. 6, § 177A; Comm’n on Judicial Perfonnance Rule 10. Then, this Court, based on a review of the entire record, must determine the appropriate sanction. Id. This Court has the sole authority to impose sanctions. Osborne, 977 So.2d at 324 (citing In re Quick, 553 So.2d 522, 527 (Miss.1989)). The sanctions available to us are: (1) removal from office; (2) suspension from office; (3) fine; and (4) public censure or reprimand. Osborne, 977 So.2d at 324 (citations omitted). “The appropriate ‘sanction should recognize the misconduct, deter and discourage similar behavior, preserve the dignity and reputation of the judiciary, and protect the public.’ ” Id. (quoting Miss. Comm’n on Judicial Performance v. Sanders, 708 So.2d 866, 877 (Miss.1998)). In determining the appropriate sanction, we examine the following factors: (1) length and character of public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) whether moral turpitude was involved; and (6) the presence or absence of mitigating or aggravating circumstances. Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004) overruled on other grounds by Boone, 60 So.3d 172.

(1) Length and character of public service

¶ 16. Judge McGee has served as a justice-court judge for eleven years. An informal Commission action was taken against Judge McGee shortly after he had taken office in a matter unrelated to to-days case.

(¾) Whether there is any prior caselaw on point.

¶ 17. We find Osborne, 977 So.2d 314, to be analogous to the facts of today’s case concerning the charges of interfering with the fair and orderly prosecution of A.B.

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

¶ 18. Judge McGee abused his power as a justice-court judge to interfere with the prosecution of A.B., going so far as to interfere with A.B.’s ability to post bond and put on a defense. By encouraging others not to use the court system when resolving disputes, Judge McGee cast doubt on the judiciary as a whole. Judge McGee violated multiple canons of the Mississippi Code of Judicial Conduct.

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

¶ 19. The agreed statement of facts reveals that, while all of Judge McGee’s behavior relating to A.B.’s criminal prosecution concerned the same criminal case, Judge McGee attempted to interfere with the case on more than one occasion.

(5) Whether moral turpitude is involved.

¶ 20. “Moral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Gibson, 883 So.2d at 1158 n. 2. Simply stated, Judge McGee’s conduct in interfering with the criminal prosecution of A.B. unquestionably constituted moral turpitude. Osborne, 977 So.2d at 326.

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

¶ 21. Admittedly, several mitigating factors exist in today’s case. Among other things, Judge McGee has acknowledged his errors and has cooperated fully with the Commission’s investigation.

¶ 22. Turning now to count one, we respectfully disagree with the sanction recommended by the Commission concerning the interference with the orderly prosecution of a criminal case in circuit court. The Commission found that Judge McGee’s conduct of interfering with the orderly prosecution of a criminal case warranted, inter alia, a thirty-day suspension without pay. We learn much more about the alleged facts and circumstances surrounding the charges in count one by reading the formal complaint filed by the Commission’s executive director, initiating the proceedings against Judge McGee before the Commission in Inquiry No.2009-241. However, in reaching our decision today, we do not consider the allegations in the formal complaint unless they are carried forward by the parties by way of incorporation into the Agreed Statement of Facts and Proposed Recommendation. We mention the allegations only to acknowledge that, because of the nature of A.B.’s alleged criminal conduct involving Judge McGee’s close relative, which need not be discussed here, we understand and appreciate Judge McGee’s anger. But, as we will discuss, despite the circumstances which confronted Judge McGee and understandably evoked his ire, his open display of judicial misconduct cannot be excused.

¶ 23. Acknowledging that, in our discussion of the appropriate sanctions to impose upon Judge McGee in count one, we consider only the facts set out in the joint agreed statement of facts submitted by the Commission and Judge McGee, we state here that if we were concerned about an insufficient factual basis to determine the appropriate sanction, we would, without hesitation, remand the case to the Commission for supplementation of the record by way of a further development of the alleged facts in this case. Miss. Comm’n on Judicial Performance v. Brown, 37 So.3d 14, 18 n. 4 (Miss.2010).

¶24. We turn to prior cases for guidance. We previously have characterized a judge’s egregious public conduct which invoked his judicial office as willful misconduct. Osborne, 977 So.2d at 315. In Osborne, a vehicle owned by a county court judge’s wife and his mother-in-law was repossessed. Id. at 316. Judge Osborne witnessed the vehicle being towed and blocked the tow truck in an intersection. Id. Judge Osborne then kicked and beat the truck with his fists, instructed the driver to release the vehicle, entered the vehicle, and engaged the brakes. Id. The police were called, and Judge Osborne stated to one of the officers that “he was a judge and lawyer, that he knew the law much better than the officer and needed no advice from him.” Id. at 317. The public confrontation in Osborne lasted from forty-five minutes to an hour and was in view of the public. Id. In finding that this public conduct constituted willful misconduct and warranted a 180-day suspension, we stated that “Judge Osborne failed to observe high standards of conduct and invoked his office in objecting to the repossession of the automobile.” Id. at 324.

¶ 25. Although Judge Osborne had a prior history of judicial-performance complaints which was more extensive than that of Judge McGee, the judicial misconduct exhibited by Judge McGee in count one (which actions were admitted by Judge McGee) is more egregious than that of Judge Osborne. In considering Judge McGee’s actions, we must remember that the citizens coming before Judge McGee in civil and criminal cases have every right to expect that they will receive fair and impartial treatment from Judge McGee. Specifically, those citizens charged with criminal offenses coming before Judge McGee have every right to expect that they are appearing before a judge who, through his demeanor, words, and actions, will fairly and impartially consider their cases and make a sound decision grounded on the facts and the law.

¶ 26. With this in mind, we look to Judge McGee’s admitted conduct in count one. The criminal charges lodged against A.B. ultimately went to the grand jury, where a felony indictment was handed down; and, thereafter, the case was disposed of in circuit court by A.B.’s guilty plea to a reduced misdemeanor charge. Throughout the criminal process in AB.’s case, Judge McGee interfered. He insisted that A.B. be allowed only a cash bond of $50,000, and not a property bond; he burst into the Board of Supervisors’ meeting room, disrupting an executive session of the Board, angrily berating the sheriff before the Board for allowing A.B. to be released from custody after posting a property bond; and he discouraged local attorneys from representing A.B., although A.B., like any other defendant indicted for a crime in Mississippi, had a right under our state and federal constitutions to be represented by competent counsel. All of these actions occurred in public. And finally, in another public display, Judge McGee stood up in open court during the circuit-court proceedings concerning A.B. and stated for all in the courtroom to hear that he (Judge McGee) was advising them if they were ever confronted with similar circumstances, they should not allow the courts to resolve the matter, but instead they should “handle it themselves.” Judge McGee also openly stated in the circuit-court proceedings:

I would like for everyone in this court to know that had I had this to do over again we would never had went to a grand jury, that we would have taken care of this down at Biggersville, Mississippi, down on the farm like things should have been taken care of.

¶ 27. We have to ask the rhetorical question: “How could the persons in the courtroom who heard these remarks by Judge McGee, or other persons who later learned of Judge McGee’s remarks, if they eventually found themselves appearing before Judge McGee in any court matter, but especially a criminal matter, expect to receive fair and impartial treatment from Judge McGee?” As a judicial officer, Judge McGee has taken the following oath:

I solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a justice court judge, according to the best of my ability and understanding, agreeably to the Constitution of the United States and the Constitution and laws of the State of Mississippi. So help me God.

Miss. Const, art 6, § 155 (1890). One reasonably could opine that any person in the courtroom of the Alcorn County Circuit Court on that day, or any person who later learned of Judge McGee’s outburst, could appropriately question Judge McGee’s ability to fairly discharge his duties according to the constitutional oath which he has taken on at least two occasions.

¶ 28. Canon 2 of the Mississippi Code of Judicial Conduct states that “[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.” We are mindful of the admonition contained in the commentary appearing under Canon 2:

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.

Miss.Code of Judicial Conduct, Canon 2 cmt. (emphasis added). As we have stated before, because of the nature and large volume of cases coming into our justice courts, many of our citizens will have their only contact with the judicial system via justice court, and these citizens’ life-long perceptions of our entire state judiciary most likely will be based on them experiences — good or bad — in justice court. See, e.g., Sanford, 941 So.2d at 218.

¶ 29. Looking only at the actions depicted in count one, as agreed upon by Judge McGee, we respectfully disagree with the Commission that a thirty-day suspension without pay is sufficient. We find that the appropriate sanction for Judge McGee’s conduct depicted in count one of the joint agreed statement of facts is, inter alia, suspension from office without pay for a period of 270 days.

CONCLUSION

¶ 30. For the reasons discussed herein, we find that Judge McGee’s actions constituted willful misconduct prejudicial to the administration of justice which brought the judicial office into disrepute. Accordingly, after considering the Gibson factors, we partially adopt the recommendation of the Commission. In Count One, Judge McGee shall be suspended from office without pay for a period of 270 days, publicly reprimanded, and assessed the costs of this proceeding in the amount of $100. Count Two is dismissed. The Clerk of this Court shall send copies of this opinion, and the mandate of this Court, to the Chancery Clerk of Alcorn County, and to the Circuit Clerk of Alcorn County, as well as to the Alcorn County Justice Court Clerk, the County Administrator for Alcorn County, and the Alcorn County Board of Supervisors.

¶ 31. COUNT I: ALCORN COUNTY JUSTICE COURT JUDGE JIMMY McGEE SHALL BE SUSPENDED FROM OFFICE FOR A PERIOD OF TWO HUNDRED SEVENTY (270) DAYS WITHOUT PAY, EFFECTIVE ON THE DATE OF ISSUANCE OF THIS COURT’S MANDATE; PUBLICLY REPRIMANDED; AND ASSESSED COSTS OF $100. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE ALCORN COUNTY CIRCUIT COURT 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, WITH JUDGE McGEE IN ATTENDANCE. COUNT II: DISMISSED WITH PREJUDICE.

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

DICKINSON, Presiding Justice,

concurring in part and dissenting in part:

¶ 32. While I agree with Presiding Justice Carlson’s thorough factual analysis of the complaint brought against Judge McGee, I cannot agree that this Court has authority to order punishment not recommended by the Mississippi Commission on Judicial Performance. It’s true that my views on this issue have changed, but, as U.S. Supreme Court Justice Felix Frankfurter once put it, “[w]isdom too often never comes, and so one ought not to reject it merely because it comes late.” I respectfully dissent in part.

¶ 33. This Court’s constitutional authority over the judicial branch of government is not absolute. Our constitution itself includes several provisions that limit our powers; and one of those limiting provisions is Section 177A, which establishes the Mississippi Commission on Judicial Performance, and then states: “On recommendation of the commission on judicial performance, the supreme court may remove from office, suspend, fine or publicly censure or reprimand any justice or judge....”

¶ 34. Section 177A is not ambiguous. Our authority to order punishment is constitutionally limited to the punishment recommended by the Commission. The majority — citing as its authority this Court’s rules and prior caselaw — orders punishment that was not recommended by the Commission. But neither our rules nor our prior cases trump the constitution.

¶ 35. My review of the record convinces me that we should agree with the Commission’s finding that Judge McGee engaged in willful misconduct and conduct prejudicial to the administration of justice, which brings the office into disrepute; and that we should accept the Commission’s recommendation of a 120-day suspension from office without pay, a public reprimand, and assessment of costs of this proceeding in the amount of $100.

      . At its meeting of January 14, 2011, the Commission voted to substitute Section 99-15-26 in place of Section 63-11-39, in this paragraph. In the Commission’s Findings of Fact and Recommendation dated January 19, 2011, the last sentence of this paragraph was revised to read: "Specifically, Respondent, upon Motion of the County Prosecuting Attorney to Retire to Files, allowed the de facto non-adjudication of charges of Driving Under' the Influence (DUI), in violation of § 99-15-26 of the Mississippi Code of 1972, as amended.” Thus, the Commission omitted in its findings the phrase, "said conduct likewise amounting to a reduction of the charge, a violation of § 63-11-39 of the Mississippi Code of 1972, as amended, Implied Consent Law,” which had appeared in the agreed statement of facts.

      . Unlike the amendment set out in the footnote above, no action was taken by the Commission to amend this paragraph; however, in the Commission’s Findings of Fact and Recommendation dated January 19, 2011, the first sentence of this paragraph was revised to read: "The Respondent, without authority of law, and in violation of § 99-15-26 of the Mississippi Code of 1972, as amended, on motion of the County Prosecuting Attorney. ...” Thus, the Commission omitted in its findings the phrase, " § 63-11-39 ... Implied Consent Law,” which had appeared in the agreed statement of facts.

      .Between February 2008 and March 2010, twenty-one cases were either remanded, no-nadjudicated, or retired to the files, of which, twenty of those cases were driving-under-the-influence (DUI) cases, and one was a DUI, second-offense case.

      . We note that the Commission's Findings of Fact state that Judge McGee "remanded, non-adjudicated and ‘retired to the files' ” twenty-one cases. The Commission found that these actions violated Section 99-15-26. This code section, however, only prohibits the non-adjudication of charges under the Mississippi Implied Consent Law. It does not prohibit remanding or retiring to the files similar charges.

      . Henslee v. Union Planters Nat’l Bank & Trust Co., 335 U.S. 595, 599, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J, dissenting).

      . Miss. Const, art 6, § 177A (emphasis added).


source: Caselaw Access Project

author: CHANDLER, Justice, for the Court: KITCHENS, Justice,

license: Public Domain

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Nell Y. COWART.
    No. 2010-JP-01903-SCT.
    Supreme Court of Mississippi.
    Sept. 8, 2011.
    Rehearing Denied Oct. 20, 2011.

      John B. Toney, attorney for appellant.
    Lawrence C. Gunn, Jr., Hattiesburg, attorney for appellee.
   CHANDLER, Justice, for the Court:

¶ 1. On April 7, 2009, the Mississippi Commission on Judicial Performance (Commission), filed a formal complaint against Nell Y. Cowart, justice court judge for the Southeast District, Pearl River County, Mississippi, alleging judicial misconduct actionable pursuant to Article 6, Section 177A, Mississippi Constitution of 1890, as amended. Judge Cowart acknowledges her misconduct and joins the Commission’s recommendation for sanctions. After conducting an independent inquiry of the record and giving careful consideration to the findings of fact and recommendation of the Commission, we adopt the agreed-upon sanctions.

FACTS AND PROCEDURAL HISTORY

¶ 2. Judge Cowart and the Commission agree on the following factual history. On January 27, 2009, Officer Donald Saucier requested Judge Cowart to sign a search warrant. Cowart refused. This search warrant authorized employees of the Pearl River Sheriffs Department to seize and search a computer belonging to Anita Carol Pearson.

¶ 3. On February 6, 2009, Pearson was arrested by the deputies of the Pearl River County Sheriffs Department and charged with eight felony counts related to kidnapping, armed robbery, and extortion. Pearson was brought before Judge Cowart for her initial appearance; Judge Cowart ordered the handcuffs and shackles be removed from Pearson, and stated that “Pearson was not a criminal.” Judge Co-wart set bond at $21,500.

¶ 4. A few weeks later, Pearson was arrested again by the Pearl River County Sheriffs Department. This time, Pearson was charged with conspiracy to intimidate a state witness. Judge Cowart claimed she assumed this second arrest was for the previous charge, in which bond already had been posted. Judge Cowart communicated with Pearson’s husband about the second arrest, and she called the sheriffs department in an attempt to release Pearson from jail. After having no success in releasing Pearson, Judge Cowart called the jail again and demanded to speak with Pearson. Judge Cowart admitted she made this phone call in an attempt to help release Pearson from jail.

¶ 5. In Pearson’s second initial appearance, Judge Cowart again ordered the removal of Pearson’s handcuffs and shackles. Judge Cowart stated that Pearson was not a criminal, and “would not spend another night in jail.” While an officer was testifying concerning the allegations against Pearson, Judge Cowart became emotional and tearful. After Judge Cowart set bond at $5,000, Pearson was removed from the courtroom, and Judge Cowart apologized to the officers for her emotional display of sympathy toward Pearson.

¶ 6. On the basis of these actions, on April 7, 2009, the Commission filed a formal complaint against Judge Cowart. The complaint was later amended. On July 10, 2009, Cowart filed a response to the amended formal complaint, admitting she had engaged in ex parte communications with Pearson’s husband only because she had assumed the sheriffs department was engaging in “illegal and overbearing activities.” Judge Cowart also admitted ordering Pearson’s handcuffs and shackles removed, but claimed she had set Pearson’s bond at an appropriate amount and had refused to sign the search warrant only because she was busy with other cases.

¶ 7. A hearing was set for November 9, 2009, was continued several times, and ultimately was set for November 29, 2010. The hearing was never completed. On November 5, 2010, the parties filed an agreed statement of facts and proposed recommendation. On November 12, 2010, the Commission accepted the agreed statement of facts and proposed recommendation. The Commission recommended that Cowart be publicly reprimanded, suspended from the office of justice court judge, Southeast District, Pearl River County, Mississippi, for a period of sixty days without pay and assessed costs in the sum of $2,139.63 pursuant to Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 8. The Commission and Judge Cowart filed a joint motion for approval of recommendation filed by the Commission. Both the Commission and Judge Cowart then filed memorandum briefs in support of the joint motion for approval of recommendation filed by the Commission.

STANDARD OF REVIEW

¶ 9. In reviewing judicial misconduct cases, this Court is obligated to conduct an “independent inquiry of the record,” and in so doing, to “accord 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.” In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743, 746 (Miss.1982). This Court is not bound by the Commission’s findings and may impose additional sanctions. Miss. Comm’n on Judicial Performance v. Hartzog, 32 So.3d 1188, 1193 (Miss.2010) (citing Miss. Comm’n on Judicial Performance v. Osborne, 16 So.3d 16, 19 (Miss.2009) (Osborne IV)); Miss. Comm’n on Judicial Performance v. Boland, 975 So.2d 882, 888 (Miss.2008) (Boland I)).

DISCUSSION

I. Whether Judge Cowart’s conduct constitutes misconduct in violation of Canons 1, 2A, 2B, 3B(2), and 3B(7) of the Mississippi Code of Judicial Conduct, thus causing this matter to be actionable under Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 10. This Court determines if the judge in question has engaged in 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. Willful misconduct has been defined by this Court as follows:

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.

Miss. Comm’n on Judicial Performance v. Brown, 37 So.3d 14, 20 (Miss.2010) (citing In re Quick, 553 So.2d 522, 524 (Miss.1989) (quoting In re Anderson, 412 So.2d at 745; In re Nowell, 293 N.C. 235, 237 S.E.2d 246, 255 (1977)). It is not necessary that the behavior be willful. Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 875 (Miss.2000). This Court has held that a judge “through negligence or ignorance not amounting to bad faith, [may] 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.” In re Inquiry Concerning Judge William Anderson, 451 So.2d 232, 234 (Miss.1984).

¶ 11. -The Commission determined by clear and convincing evidence that Judge Cowart had violated Code of Judicial Conduct Canons 1 (integrity and independence of the judiciary); 2A (acting in a manner that promotes public confidence in the integrity and impartiality of the judiciary); 2B (refraining from family, social, or other relationships influencing judicial conduct and judgment); 3B(2) (faithfulness and competence in the law); and 3B(7) (not considering communications made to the judge outside the presence of the parties in a pending matter). After conducting an independent review of the record, we agree.

¶ 12. The Commission determined that Judge Cowart refused to sign a search warrant referencing Pearson’s computer. When Pearson was arrested and brought before Judge Cowart for her initial appearance, Judge Cowart ordered the handcuffs and shackles removed from Pearson and stated from the bench that Pearson was not a criminal. When Pearson was arrested a second time, Judge Cowart assumed the arrest was for the same charges; she then gave assistance to Pearson and Pearson’s husband, including calling the sheriffs department and demanding Pearson be released. When Pearson made her second appearance before Judge Cowart, Judge Cowart again ordered the handcuffs and shackles removed and proceeded to make statements from the bench that Pearson was not a criminal and would not spend another night in jail. Judge Cowart appeared emotional during an officer’s testimony of Pearson’s actions; she later apologized to the officers.

¶ 13. We agree that Judge Cowart violated Canons 1, 2A, 2B, 3B(2), and 3B(7) of the Mississippi Code of Judicial Conduct and that her actions constituted willful misconduct and conduct prejudicial to the administration of justice, under Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

II. Whether Judge Cowart should be publicly reprimanded; suspended without pay for a period of sixty days; and assessed all costs of the proceeding, in the amount of $2,139.63, as recommended by the Commission.

¶ 14. The Commission recommended that Judge Cowart receive a public reprimand; suspension for a period of sixty days without pay; and assessment of costs in the amount of $2,139.63. After conducting an independent inquiry, we agree.

¶ 15. This Court has the sole duty to impose appropriate sanctions for judicial misconduct. Boland, 975 So.2d at 895. The Mississippi Constitution sets forth sanctions this Court may impose in judicial performance matters. The Mississippi Constitution states:

On recommendation of the commission on judicial performance, the Supreme Court may remove from office, suspend, fíne or publicly censure or reprimand any justice or judge of this state for: (a) actual conviction of a felony in a court other than a court of the State of Mississippi; (b) willful misconduct in office; (c) willful and persistent failure to perform his. duties; (d) habitual intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute; and may retire involuntarily any justice or judge for physical or mental disability seriously interfering with the performance of his duties, which disability is or is likely to become of a permanent character.

Miss. Const. art. 6, § 177A (1890). This Court must impose sanctions appropriate for the specific misconduct. Boland I, 975 So.2d at 893.

¶ 16. This Court has established factors to be considered when determining whether a public reprimand should be imposed. These factors are now considered in determining any sanction for judicial misconduct. Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004) overruled on other grounds by Miss. Comm’n on Judicial Performance v. Borne, 60 So.3d 172 (Miss 2011). The following six factors are now considered:

(1) Length and character of the judge’s public service

¶ 17. Judge Cowart has been a justice court judge since February of 1997, when she was appointed to fill the unexpired term of her deceased husband. The record is silent as to further evidence of Judge Cowart’s public service.

(2) Prior caselaw on point

¶ 18. This Court has imposed similar sanctions to those recommended by the Commission, including previously issuing similar sanctions to those for Judge Co-wart for violations including ex parte communications. In Mississippi Commission on Judicial Performance v. Osborne, 977 So.2d 314 (Miss.2008) (Osborne II), this Court imposed a public reprimand, costs, and a six-month suspension for violating the Code of Judicial Conduct in allowing personal relationships to influence the judge’s conduct and using the position to aid members of the judge’s family. Osborne II, 977 So.2d at 827. Here, Judge Cowart has inappropriately allowed her personal relationship with Pearson to affect her conduct.

¶ 19. Judge Cowart has inappropriately engaged in ex parte communications, despite being previously reprimanded for similar conduct. Many opinions of this Court have found ex parte communications a violation of the Code of Judicial Conduct. See e.g. Miss. Comm’n on Judicial Performance v. Dearman, 66 So.3d 112 (Miss.2011); Miss. Comm’n on Judicial Performance v. Patton, 57 So.3d 626 (Miss.2011); Miss. Comm’n on Judicial Performance v. DeLaughter, 35 So.3d 1208 (Miss.2008); Miss. Comm’n on Judicial Performance v. Bradford, 18 So.3d 251 (Miss.2009); Miss. Comm’n on Judicial Performance v. Britton, 936 So.2d 898 (Miss.2006); Miss. Comm’n on Judicial Performance v. Dodds, 680 So.2d 180 (Miss.1996); Miss. Comm’n on Judicial Performance v. Chinn, 611 So.2d 849 (Miss.1992).

(3) Magnitude of the offense and the harm suffered

¶ 20. It is reasonable to conclude that the public’s perception of the judiciary was harmed through the following actions by Judge Cowart: engaging in ex parte conversations with a criminal defendant scheduled to appear before her, engaging in ex parte conversations with the defendant’s husband, attempting to release the defendant from jail, and making comments clearly reflecting a personal relationship with the defendant. Those present at Pearson’s two initial appearances before Judge Cowart undoubtedly concluded Judge Cowart and Pearson had a personal relationship. Judge Cowart showed she realized the magnitude of her actions, because she proceeded to apologize to the officers after admitting from the bench her personal relationship with Pearson. This Court has stated, “[ojfficial integrity of our Justice Court Judges is vitally important, for it is on that level that many citizens have their only experience with the judiciary.” Dearman, 66 So.3d at ¶ 29 (citing Miss. Comm’n on Judicial Performance v. Vess, 10 So.3d 486, 493 (Miss.2009) (quoting In re Inquiry Concerning Garner, 466 So.2d 884, 887 (Miss.1985) overruled on other grounds by Boone, 60 So.3d 172 Miss.2011))).

(4) An isolated incident or a pattern of conduct

¶ 21. Judge Cowart has had prior disciplinary actions against her. In 2004, Judge Cowart issued a warrant for noncustodial kidnapping against the father of a child involved in a custody dispute. The mother of the child was both a campaign contributor and Judge Cowart’s friend. For this action, the Commission issued an informal Commission action.

¶ 22. In Mississippi Commission on Judicial Performance v. Cowart, 936 So.2d 343 (Miss.2006), this Court agreed with the Commission in finding that Judge Cowart had engaged in ex parte communications, had presided over a case after acknowledging she had a conflict, had contacted an officer to fix a ticket for her neighbor, personally had handled money due for fines owed, and had disposed of traffic violations with no hearing or notice to the issuing officer. Id. at 347. From these actions, this Court issued a public reprimand and a thirty-day suspension without pay and assessed costs.

¶ 23. Judge Cowart’s present conduct is similar to that for which she previously has been reprimanded. Her pattern of conduct shows a disregard for the Code of Judicial Conduct.

(5) Moral turpitude

¶ 24. This Court has defined the tern “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.” Osborne IV, 16 So.3d at 24 (citing Miss. Comm’n on Judicial Performance v. Boland, 998 So.2d 380, 392 (Miss.2008) (Boland II)).

¶ 25. Judge Cowart interfered with the administration of justice by engaging in ex parte communications with both Pearson and her husband and continually demonstrating her personal relationship with Pearson. By attempting to use her position to help Pearson, Judge Cowart exhibited moral turpitude and an extreme disregard for the Code of Judicial Conduct. As in Mississippi Judicial Performance v. Sanford, 941 So.2d 209, 217 (Miss.2006), a finding of moral turpitude is appropriate because “this case involves 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.”

(6) Mitigating or aggravating circumstances

¶ 26. Judge Cowart entered into an agreed statement of facts and recommendation for sanction, indicating that her actions were improper and the recommendation was fair. Judge Cowart’s record of judicial misconduct, evidencing a disregard for the Code of Judicial Conduct, is an aggravating circumstance.

CONCLUSION

¶ 27. The conduct of Nell Y. Cowart, justice court judge for the Southeast District of PearlRiver County, Mississippi, constitutes 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.

¶ 28. This Court, after conducting an independent review of the record, and after giving careful consideration to the agreed statement of facts and recommendation of the Commission, orders Justice Court Judge Nell Y. Cowart to be publicly reprimanded, suspended from office for a period of sixty days without pay, and assessed with costs in the amount of $2,139.63. The Clerk of this Court shall send copies of this opinion and the mandate of this Court to the Chancery Clerk and the Circuit Clerk of Pearl River County, as well as to the Pearl River County Justice Court Clerk, the County Administrator of Pearl River County, and the Pearl River County Board of Supervisors.

¶ 29. PEARL RIVER COUNTY JUSTICE COURT JUDGE NELL Y. CO-WART SHALL BE SUSPENDED FROM OFFICE WITHOUT PAY FOR A PERIOD OF SIXTY DAYS, EFFECTIVE ON THE DATE OF ISSUANCE OF THIS COURT’S MANDATE; PUBLICLY REPRIMANDED; AND ASSESSED COSTS OF $2,139.63. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE PEARL RIVER COUNTY CIRCUIT COURT 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, WITH JUDGE COWART IN ATTENDANCE.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, PIERCE AND KING, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION.

KITCHENS, Justice,

concurring in part and in result:

¶ 30. While I agree with this Court’s adoption of the Commission’s recommended sanction, I write separately to clarify which of Judge Cowart’s actions rise to the level of judicial misconduct.

¶ 31. In considering the joint recommendation filed by the Commission, it is unclear which of Judge Cowart’s several activities amounted to judicial misconduct. The Commission’s Findings of Fact and Recommendation provides a recitation of the facts but does not specify which of the judge’s actions require that she be sanctioned. We simply are told that “Respondent’s action as stated in the Agreed Statement of Facts and Proposed Recommendation violated Canons 1, 2A, 2B, 3B(2) and 3B(7) of the Code of Judicial Conduct and § 177A of the Mississippi Constitution.... ” However, the Agreed Statement of Facts and Proposed Recommendation, which was not fully adopted by the Commission, includes this brief analysis:

Respondent agrees that due to her knowledge of Carol Pearson that she should have recused herself from involvement in any phase of Pearson’s case and therefore has violated 3E(1).[ ] Also, by engaging in ex parte conversations with Pearson and Pearson’s husband she violated 2B and 3B(7). Respondent’s demands that Pearson be released from jail and her statements from the bench regarding Pearson’s innocence violate Canons 1, 2A, 3B(1), 3B(2).

The Commission rejected the finding that Judge Cowart should have recused herself and the finding that she had violated Canon 3E(1), which governs disqualification of judges. Accordingly, we are left to assume that the Commission found misconduct in Judge Cowart’s “engaging in ex parte conversations with Pearson and Pearson’s husband” and her “demands that Pearson be released from jail and her statements from the bench regarding Pearson’s innocence.”

¶ 32. Thus, while the majority correctly summarizes the agreed facts, not all of Judge Cowart’s enumerated actions are sanctionable, including her refusal to sign a search warrant and her request that Pearson’s handcuffs and shackles be removed while Pearson was in the courtroom. These matters, standing alone, were within the judge’s discretion. As for her statement from the bench that Pearson was “not a criminal,” that too would not offend the judicial canons if that comment occurred in the context of the presumption of innocence afforded all persons accused of a crime. The information before us gives this Court no insight into the context in which the comment was made. Nevertheless, it seems clear from the audio recording of the hearing that Judge Cowart was agitated and was expressing her belief that the charges against Pearson had been fabricated by the sheriffs office.

¶ 33. Based on the agreed facts and the record before us, Judge Cowart should be sanctioned for her ex parte communications with Pearson and Pearson’s spouse, for her demanding that Pearson be released from jail, and for her exhibiting partiality toward Pearson during the initial appearance in the second case. The recommended sanction is appropriate in light of Judge Cowart’s agreement to the recommendation and because this is her third disciplinary appearance before the Commission. I do not agree with the majority’s conclusion that her actions involved moral turpitude, and Judge Cowart has not agreed to such a finding. Her actions, while sanctionable, do not amount to “shameful wickedness, so extreme a departure from ordinary standards of honesty, good morals, justice or ethics as to be shocking to the moral sense of the community.” Speed v. Scott, 787 So.2d 626, 633 (Miss.2001) (quoting Restatement (Second) Torts § 571, emt.g (1977)). While she should not have engaged in improper ex parte communications, demanded a defendant’s release from jail in these circumstances, or exhibited partiality from the bench, her rulings bear no appearance of having been affected, and this should be considered an additional mitigating factor. For these reasons, I respectfully concur in part and in result.

      . The party adverse to Carol Pearson — the State of Mississippi — never asked Judge Co-wart to recuse.

      . The Commission’s brief states that the Commission did not find a violation of Canon 3E(1) "as it appears that the canon is couched in hortatory rather than mandatory language.” In other words, the Commission refused to find a violation of Canon 3E(1) because the canon provides that "judges should disqualify themselves” in certain cases rather than "judges shall disqualify themselves.” Curiously, the Commission recently recommended that a justice court judge be sanctioned because she presided over the initial appearance of her nephew and her nephew's girlfriend. Miss. Comm'n on Judicial Performance v. Dearman, 66 So.3d 112 (Miss.2011). The Commission’s recommendation in that case is not consistent with its finding that Judge Cowart was not required to recuse herself despite her personal relationship with Pearson. A common factor in these cases is the lack of any party’s request for recusal.


author: WALLER, Chief Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Carol Ann BUSTIN.
    No. 2011-JP-00552-SCT.
    Supreme Court of Mississippi.
    Sept. 29, 2011.

      John B. Toney, Darlene D. Ballard, Ay-anna Batiste Butler, attorneys for appellant.
    James K. Dukes, Jr., Hattiesburg, attorney for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance filed a Formal Complaint against Lamar County Justice Court Judge Carol Ann Bustin. The complaint charged that Judge Bustin, while serving as an attorney for David C. Lema’s ex-wife, executed a felony arrest warrant for Lema based upon an affidavit submitted by the ex-wife. The Commission and Judge Bustin jointly move this Court to accept the agreed findings of fact and to approve the recommended sanctions — a public reprimand, a $500 fine, and assessment of costs in the amount of $100. After conducting an independent inquiry and giving careful consideration to the joint motion for approval of recommendations and the supporting brief, we are unable to agree with the recommendation of the Commission. Because Judge Bustin abused the power of her office, acted as judge in a matter involving one of her own clients, and has engaged in similar misconduct in the past, we order a thirty-day suspension from office without pay in addition to the recommended sanctions.

AGREED FACTS

¶2. In September 2007, Judge Bustin executed a felony arrest warrant for David C. Lema, charging him with kidnapping his own child. The warrant was based upon an affidavit filed by Lema’s ex-wife, who claimed primary physical custody of the child. Judge Bustin, who is a licensed attorney, was representing Lema’s ex-wife in a separate divorce and child-custody matter.

STANDARD OF REVIEW

¶ 3. In reviewing judicial misconduct cases, this Court conducts an “ ‘independent inquiry of the record,’ ” and, in doing so, “ ‘accord[s] careful consideration [of] the findings of fact and recommendations of the Commission, or its committee,. ...’” 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)).

DISCUSSION

I. Judge Bustin violated Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(8), 3E(l)(a)(b)(d), and 4A of the Mississippi Code of Judicial Conduct, thus causing this matter to be actionable under Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 4. The Commission found that Judge Bustin had violated Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(8), 3E(l)(a)(b)(d), and 4A of the Code of Judicial Conduct. The Commission, however, did not delineate how each specific canon was violated.

¶ 5. Judge Bustin failed to recognize the conflict of interest between representing a client in a divorce and child-custody dispute, and simultaneously executing a warrant, based upon that client’s affidavit, for the arrest of the client’s ex-husband. By doing so, she misused her office and impugned the public’s perception of the judiciary.

¶ 6. Canon 1 states that “... [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 .... ” Mississippi Code of Judicial Conduct Canon 1. By executing an arrest warrant based upon an affidavit submitted by her own client, Judge Bustin failed to observe high standards of conduct.

¶ 7. Canon 2A provides that “[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.” Mississippi Code of Judicial Conduct Canon 2A. Judge Bustin failed to comply with the law by acting as judge in a matter involving her own client. Her conduct tarnished public confidence in the integrity and impartiality of the judiciary.

¶ 8. Canon 2B prohibits judges from lending the prestige of their office to advance the private interests of others:

Judges shall not allow their family, social, or other relationships to influence the judges’ judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges....

Mississippi Code of Judicial Conduct Canon 2B. Judge Bustin allowed her relationship with her client to influence her judicial conduct, and she lent the prestige of her office to advance that client’s interest.

¶ 9. Canon 3B(1) states that “[a] judge shall hear and decide all assigned matters within the judge’s jurisdiction except those in which disqualification is required.” Mississippi Code of Judicial Conduct Canon 3B(1). Judge. Bustin should have disqualified herself from a matter that involved her own client.

¶ 10. Canon 3B(2) requires judges to adhere to the law, to maintain professional competence in it, and to not be swayed by “partisan interests, public clamor, or fear of criticism.” Mississippi Code of Judicial Conduct Canon 3B(2). By failing to recognize the conflict of interest in executing an arrest warrant based upon an affidavit submitted by her own client, Judge Bustin did not adhere to the law.

¶ 11. Canon 3B(8) requires judges to “dispose of all judicial matters promptly, efficiently and fairly.” Mississippi Code of Judicial Conduct Canon 3B(8). It was patently unfair for Judge Bustin to execute an arrest warrant for her client’s ex-husband while simultaneously representing her client in a civil proceeding against the ex-husband.

¶ 12. Canon 3E(l)(a), furthermore, requires that judges disqualify themselves when their impartiality might be questioned or when they have personal prejudice concerning a party:

(1) Judges should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances or for other grounds provided in the Code of Judicial Conduct or otherwise as provided by law, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evi-dentiary facts concerning the proceeding. ...

Mississippi Code of Judicial Conduct Canon 3E(l)(a). There is no doubt that Judge Bustin had personal knowledge of the evi-dentiary facts, and she exhibited bias and prejudice by executing the arrest warrant.

¶ 13. Canon 3E(l)(b) States that judges should disqualify themselves whenever the judge “served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it[J” Mississippi Code of Judicial Conduct Canon 3E(l)(b). Judge Bustin served as the ex-wife’s lawyer in a divorce and child-custody proceeding against Lema at the same time that the ex-wife submitted the affidavit that charged Lema with child kidnapping. Judge Bustin, therefore, should have disqualified herself from the criminal matter.

¶ 14. Canon 3E(l)(d) provides, in pertinent part, that judges should disqualify themselves whenever they are acting as a lawyer in the proceeding, or they have an interest that could be substantially affected by the outcome of the proceeding. Mississippi Code of Judicial Conduct Canon 3E(l)(d)(ii), (iii). As already noted, Judge Bustin served as the ex-wife’s lawyer in the divorce and child-custody proceeding against Lema at the same time that the ex-wife submitted the affidavit that led to Lema’s arrest. And, as the ex-wife’s attorney, Judge Bustin had an interest that could have been substantially affected by the outcome of the criminal proceeding against Lema.

¶ 15. And finally, Canon 4A requires judges to conduct all of their extrajudicial activities so that they do not “(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties.” Mississippi Code of Judicial Conduct Canon 4A. Judge Bustin allowed her extrajudicial representation of a client to cast doubt upon her ability to act impartially. She allowed it to interfere with her judicial duties and, in doing so, she demeaned the office.

¶ 16. After conducting an independent inquiry, we agree that Judge Bustin violated Canons 1, 2A, 2B, 3B(1), 3B(2), 3E(l)(a)(b)(d), and 4A of the Code of Judicial Conduct. Her actions, moreover, 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.

II. Judge Bustin’s misconduct warrants a thirty-day suspension from office without pay, a public reprimand, a $500 fine, and assessment of costs in the amount of $100.

¶ 17. This Court considers six factors in determining proper sanctions for judicial misconduct: (1) the length and character of the judge’s public service; (2) whether there is any prior caselaw on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of misconduct; (5) whether moral turpitude was involved; and (6) the presence or absence of mitigating or aggravating circumstances. Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1158 (Miss.2004), overruled in part on other grounds by Boone, 60 So.3d at 176-77.

A. Length and Character of Judge Bustin’s Service

¶ 18. Judge Bustin has served as a justice court judge for eight years. The record is silent concerning the character of her public service.

B. Prior Caselaw

¶ 19. The Commission submits that there are no cases directly on point, though it offers two cases that it says provides some guidance.

¶20. In Mississippi Commission on Judicial Performance v. Atkinson, 645 So.2d 1331, 1333 (Miss.1994), Judge Atkinson conducted a preliminary hearing and set bond for an accused; he later represented the accused in circuit court and tried to have the bond reduced. This Court ordered that" Judge Atkinson be publicly reprimanded and assessed the costs of appeal. Id. at 1337. Likewise, in Mississippi Commission on Judicial Performance v. Pittman, 993 So.2d 816, 817 (Miss.2008), Judge Pittman signed an arrest warrant and set bond for a defendant; he later represented that defendant in circuit court on those same charges. The Court, as it did in Atkinson, ordered that Judge Pittman be publicly reprimanded and assessed the costs of appeal. Id. at 818, 820.

¶ 21. In some respects, Judge Bustin’s actions are akin to those cases in which a judge presided over a matter involving a relative of the judge. In Mississippi Commission on Judicial Performance v. Dearman, 66 So.3d 112, 115 (Miss.2011), Judge Dearman presided over a domestic-dispute matter involving her own nephew. We found that her actions created the appearance of impropriety and harmed the public’s perception of the judiciary. Id. at 117, 119. Based on that misconduct and numerous other violations as well, we ordered a thirty-day suspension, a public reprimand, and assessment of costs in the amount of $100. Id. at 121. In Mississippi Commission on Judicial Performance v. Cole, 932 So.2d 9, 10 (Miss.2006), overruled in part on other grounds by Boone, 60 So.3d at 176-77, Judge Cole had his grandson’s driver’s license reinstated pending the disposition of several charges against his grandson. Judge Cole also contacted the county sheriff and tried to have his grandson sent to a detention facility instead of a state facility. Id. As punishment, we ordered a public reprimand and assessment of costs in the amount of $100. Id. at 12.

¶ 22. Judge Bustin’s actions also are similar to cases in which judges abused the power of their office by issuing, or threatening to issue, arrest warrants without proper grounds. In Mississippi Commission on Judicial Performance v. Anderson, 32 So.3d 1180, 1181, 1186 (Miss.2010), Judge Anderson issued an arrest warrant based upon information that he had received from ex parte contact with a litigant. As punishment for that and several other misdeeds as well, we imposed a thirty-day suspension, ordered a public reprimand, and assessed Judge Anderson the costs of appeal. Id. at 1188. In Mississippi Commission on Judicial Performance v. Carr, 990 So.2d 763, 765, 766-67, 769-70 (Miss.2008), overruled in part on other grounds by Boone, 60 So.3d at 177, Judge Carr, based upon ex parte communications with members of the community, threatened an individual with prosecution and falsely told her that an arrest warrant had been issued against her in an effort to persuade her to return portions of a cemetery fence that had been missing. This Court found that Judge Carr had abused the power and influence of his office. Id. at 767. Based on this and Judge Carr’s prior history of misconduct, the Court imposed a sixty-day suspension, a public reprimand and a $2,000 fíne, and assessed the costs of appeal. See id. at 770. In Mississippi Commission on Judicial Performance v. Cantrell, 624 So.2d 94, 95-96 (Miss. 1993), a local car dealer approached Judge Cantrell ex parte and influenced him to issue an arrest warrant against a certain individual for embezzlement. The warrant was never actually served, however. Id. at 96. The formal complaint charged that Judge Cantrell had pressured the individual with arrest if he did not pay the amount demanded by the car dealer, but Judge Cantrell denied doing so under the agreed facts. Id. at 95-96. This Court accepted the Commission’s recommendation of a public reprimand. Id. at 97. Though the Court accepted a public reprimand based on the agreed stipulation, it stated that if the allegations of the complain had indeed been true, a harsher sanction would have been in order. Id. at 97.

¶ 23. The principal offense here is that Judge Bustin used the criminal process to influence a civil proceeding. In that regard, her behavior is similar to those cases in which judges have used the criminal process to collect or enforce a civil debt. Miss. Comm’n on Judicial Performance v. Willard, 788 So.2d 736, 738, 743, 746 (Miss.2001) (judge removed from office for twenty-four counts of judicial misconduct, one of which included using the criminal process to collect a civil debt); In re Odom, 444 So.2d 835, 837 (Miss.1984) (judge publicly reprimanded and fined $250, in part, for using the criminal process or the threat of criminal process to collect civil debts); In re Lambert, 421 So.2d 1023, 1024-25 (Miss.1982) (judge publicly reprimanded and fined $2,000, in part, for using the criminal process to collect civil debts).

¶ 24. We also have found two cases from other jurisdictions that involved misconduct similar to Judge Bustin’s. In Matter of Wireman, 270 Ind. 344, 353-55, 367 N.E.2d 1368, 1373-74 (1977), Judge Wireman, on two separate occasions, represented a wife in a divorce and support action; he then sat as a judge when the ex-wife charged the ex-husband with failing to provide child support. In one of those instances, Judge Wireman actually presided over the delinquent child-support matter while simultaneously representing the ex-wife in a related case before a different court. Id. at 1373. The Supreme Court of Indiana ultimately disbarred Judge Wireman based on that and a litany of other transgressions, including the fact that he had encouraged certain individuals to burglarize a residence. Id. at 1375-76.

¶ 25. In In re Soileau, 502 So.2d 1083, 1084-85, 1087 (La.1987), Judge Soileau issued an arrest warrant against a husband for nonsupport charges at the same time that Judge Soileau was representing that husband’s wife in an action for separation. The Supreme Court of Louisiana noted that that particular incident, standing alone, warranted nothing more than a warning because (1) there had been only an appearance of impropriety and (2) it had appeared to be an isolated incident. Id. at 1088. Yet, due to several other incidences of misconduct in that case, the court imposed a six-month suspension. Id. at 1090.

¶ 26. While none of the above cases are directly on point, this Court does not take lightly a judge using the criminal process to influence a civil proceeding in which that judge is involved in as an attorney.

C. The Magnitude of the Offense and the Harm Suffered,

¶ 27. Judge Bustin, in her judicial capacity, signed a warrant for her client’s ex-husband’s arrest based upon an affidavit submitted by her client. Judge Bustin used her office to further the private interests of her client. Her actions were an abuse of judicial power and impugned the reputation of the judiciary.

¶ 28. This Court has noted that most citizens’ primary, and perhaps only, contact with the law is through justice court; for that reason, justice court judges must “ ‘regard scrupulously ” their office. Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 215 (Miss.2006) (quoting In re Bailey, 541 So.2d 1036, 1039 (Miss.1989)). If justice court judges do not exhibit professionalism, there is little chance that our citizenry will understand and respect the legal process. Sanford, 941 So.2d at 215 (quoting In re Bailey, 541 So.2d at 1039).

D. Isolated Incident or Pattern of Conduct

¶ 29. The brief in support of the joint motion states that Judge Bustin has “received a private admonishment from the Commission for similar conduct that involved a conflict of interest between her private law practice and that of her office as justice court judge.” Despite this warning, Judge Bustin chose to engage in this unethical practice again. Because Judge Bustin has engaged in similar misconduct in the past, we find that this second incident reflects, arguably, a repeated course of behavior. See Miss. Comm’n on Judicial Performance v. Brown, 918 So.2d 1247, 1258 (Miss.2005) (finding that a prior, private reprimand for similar misconduct was relevant for helping establish a course of repeated misconduct).

E. Moral Turpitude

¶ 30. The Commission states that Judge Bustin’s actions may be construed as involving moral turpitude. We find that Judge Bustin’s abuse of office and misuse of judicial powers does involve moral turpitude.

¶ 31. “Moral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.” Gibson, 883 So.2d at 1159 n. 2. It “ ‘must involve some immorality.’” Mississippi Comm’n on Judicial Performance v. Patton, 57 So.3d 626, 633 (Miss.2011) (quoting Miss. Comm’n on Judicial Performance v. Roberts, 952 So.2d 934, 942 (Miss.2007)). And it must “cross the line ‘from simple negligence or mistake, to willful conduct which takes advantage of a judge’s position for greed or other inappropriate motives.’ ” Patton, 57 So.3d at 633 (quoting Miss. Comm’n on Judicial Performance v. Vess, 10 So.3d 486, 493 (Miss.2009)). A willful subversion of justice merits harsher punishment. Vess, 10 So.3d at 493 (Miss.2009) (quoting Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 305 (Miss.2007)).

¶ 32. We find that Judge Bustin’s actions involved moral turpitude because she willfully misrepresented herself as a neutral arbiter and abused her position as a judge by signing an arrest warrant based on an affidavit submitted, ex parte, by her own client. She thus interfered with the administration of justice.

F.Mitigating or Aggravating Factors

¶ 33. Judge Bustin has agreed that her actions were improper, and she has joined the motion for approval of recommendations. In a supplemental filing with this Court, Judge Bustin also stipulated that she has not qualified for re-election as Justice Court Judge for Post 3 in Lamar County.

¶ 34. After conducting an independent review of the record, and after carefully considering the joint motion for approval of recommendations and the supporting brief, we are unable to agree with the proposed recommended punishment. Judge Bustin’s actions not only were egregious and implicated moral turpitude, but she has engaged in similar behavior in the past. A harsher sanction, therefore, is appropriate. Cf. Miss. Comm’n on Judicial Performance v. McKenzie, 68 So.3d 1219 (Miss.2011) (imposing a thirty-day suspension in addition to the Commission’s recommendation of a public reprimand, $500 fine, and assessment of costs where the misconduct was egregious, involved moral turpitude, and constituted a pattern of conduct).

¶ 35. Judge Bustin’s misconduct is more serious than the judges’ behavior in Atkinson and Pittman. Those judges were publicly reprimanded and assessed costs for representing a defendant after they had participated as a judge in a matter involving that same defendant. Pittman, 993 So.2d at 817-20; Atkinson, 645 So.2d at 1333-37. They did not represent the litigant at the time that he appeared before them. They had at least a conceivable, though unpersuasive, defense for their actions. Judge Atkinson, for example, insisted that he had not substantially participated in the matter as a judge, and that his later representation had been minimal. Atkinson, 645 So.2d at 1334. One justice agreed, and found that Judge Atkinson’s conduct did not merit sanctions. Id. at 1337-40 (Lee, P.J., dissenting). Here, Judge Bustin represented Lema’s ex-wife at the same time that she executed the felony arrest warrant that was based upon this ex-wife’s affidavit. The conflict of interest was clear and unmistakable. Judge Bustin’s decision to disregard that conflict is simply indefensible.

¶ 36. It is true that in In re Soileau, the Louisiana Supreme Court found that misconduct similar to Judge Bustin’s, by itself, warranted only a warning. In re Soileau, 502 So.2d at 1088. But, before reaching its conclusion, the court emphasized the wrongfulness of such behavior. Id. And, more importantly, it explained that it was exercising leniency because the incident appeared to be isolated, and because only an appearance of impropriety had been given. Id. That is not the case here. Judge Bustin’s behavior was not an isolated incident.

¶ 37. Because of the egregiousness and moral turpitude of Judge Bustin’s conduct, and because she had engaged in similar behavior in the past, we order a thirty-day suspension in addition to the proposed recommended sanctions.

¶38. While Judge Bustin has stipulated that she will not run for reelection, this does not foreclose the need to apply appropriate sanctions. This Court has, in its past, imposed sanctions where the judge has either resigned or not sought re-election. Miss. Comm’n on Judicial Performance v. DeLaughter, 29 So.3d 750 (Miss.2010) (judge removed from office even though he already had resigned); Miss. Comm’n on Judicial Performance v. Osborne, 16 So.3d 16 (Miss.2009) (judge removed from office even though he already had resigned); Miss. Comm’n on Judicial Performance v. Dodds, 680 So.2d 180 (Miss.1996) (judge removed from office even though he had not sought re-election and was no longer in office); see also Miss. Comm’n on Judicial Performance v. Brown, 918 So.2d 1247 (Miss.2005) (judge removed from office even though he had asserted that he would not seek re-election); but see Miss. Comm’n on Judicial Performance v. Martin, 995 So.2d 727 (Miss.2008) (interim sus pension deemed moot because judge had resigned from office). We explained in Dodds that there are good reasons for doing so. Dodds, 680 So.2d at 182 n. 1. A judge should not be able to avoid discipline by simply resigning or voluntarily leaving office. Id. (citing In re the Matter of Weeks, 134 Ariz. 521, 658 P.2d 174 (1983)). And this Court’s judicial-misconduct decisions provide guidance for the entire judiciary and help preserve public confidence in it. Dodds, 680 So.2d at 182 n. 1 (citing In re Yaccarino, 101 N.J. 342, 502 A.2d 3, 30-31 (1985)).

¶ 39. Based on our precedent then, the fact that Judge Bustin will not seek reelection and will no longer be in office has no effect on the sanctions that we impose.

CONCLUSION

¶ 40. We find that Judge Bustin violated Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(8), 3E(l)(a)(b)(d), and 4A of the Code of Judicial Conduct, and that her actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute under Section 177A of the Mississippi Constitution of 1890, as amended. After conducting an independent review of the record, and after giving careful consideration to the joint motion for approval of recommendations and the supporting brief, we order that Judge Bustin be suspended for thirty days from office without pay following the issuance of this Court’s mandate, publicly reprimanded, fined $500, and assessed $100 in court costs. The Clerk of this Court shall send copies of this opinion, together with the mandate of this Court, to the Chancery Clerk of Lamar County, to the Circuit Clerk of Lamar County, as well as to the Lamar County Justice Court Clerk, the County Administrator for Lamar County, and the Lamar County Board of Supervisors.

¶ 41. LAMAR COUNTY JUSTICE COURT JUDGE CAROL ANN BUSTIN 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 $500; AND ASSESSED COSTS OF $100. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE LAMAR 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 BUSTIN IN ATTENDANCE.

CARLSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., NOT PARTICIPATING.


author: LAMAR, Justice, for the Court:

text:
    Richard COMPERE and James A. Bobo v. ST. DOMINIC JACKSON MEMORIAL HOSPITAL and Bryan Lantrip, M.D.
    No. 2010-CA-00490-SCT.
    Supreme Court of Mississippi.
    Sept. 29, 2011.

      James A. Bobo, Brandon, appellant, pro se.
    Lane W. Staines, Sharon F. Bridges, Jonathan R. Werne, J. Leray McNamara, Jackson, Stephanie C. Edgar, attorneys for appellees.
    Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.
   LAMAR, Justice, for the Court:

¶ 1. Richard Compere appeals the trial court’s dismissal with prejudice and imposition of monetary sanctions for his filing a second medical-malpractice action against Dr. Bryan Lantrip and St. Dominic-Jackson Memorial Hospital. The Hinds County Circuit Court imposed these sanctions because Compere previously had filed the same action, and it was pending at the time Compere filed his second complaint. We find the trial court erred in dismissing the second complaint with prejudice and imposing monetary sanctions. Therefore, we reverse and remand for further proceedings.

Facts

¶ 2. Compere underwent a fluoroscopi-cally guided lumbar puncture at St. Dominic to treat his headaches. This procedure was performed by Dr. Lantrip, who dictated a report concerning the procedure. Compere avers that the report contained an error, and that he underwent additional, unnecessary treatment because of it. Once Compere learned of the error, he mailed notice as required by Mississippi Code Section 15-1-36(15) to the defendants of his intent to file a malpractice action. This notice was dated January 6, 2009, but was not mailed until January 8, 2009. Compere filed his first complaint on March 4, 2009, and the action was assigned to Judge W. Swan Yerger.

¶ 3. It is undisputed that Compere failed to wait the sixty days required by Section 15-1-36(15) before he filed the first complaint. Due to that failure, the defendants moved for summary judgment. Compere also filed a motion for partial summary judgment, arguing that he had complied substantially with the sixty-day notice period, and that the notice requirement violated the state and federal constitutions.

¶ 4. After considering the written motions and oral arguments, the trial court took the matter under advisement. Prior to the court rendering a decision, Compere filed a second, almost identical complaint with the same court on July 1, 2009. Judge Yerger became aware of this second lawsuit, which had been assigned to Judge Tomie Green. Judge Green transferred the lawsuit to Judge Yerger, who consolidated the two actions. Judge Yerger then dismissed the first complaint without prejudice under this Court’s recent decision, Price v. Clark, for Compere’s failure to wait sixty days before filing the first complaint. Judge Yerger relied upon the doctrine of priority jurisdiction and dismissed the second action with prejudice, finding it was an “improperly filed action.”

¶ 5. Judge Yerger also assessed monetary sanctions against Compere’s counsel, Jim Bobo, finding the second complaint was “frivolous” and “-without substantial justification,” and that it was a “flagrant violation of long-standing Mississippi law.” He found the defendants had sustained unnecessary costs in defending the second action, and imposed sanctions under his inherent authority, Rule 11 of the Mississippi Rules of Civil Procedure, and the Litigation Accountability Act of 1988 (Mississippi Code Section 11-55-5). Judge Yerger also ruled that this Court already had rejected Compere’s constitutional arguments in previous decisions.

Discussion

¶ 6. This Court reviews questions of law de novo, and applies an abuse-of-discretion standard to an award of sanctions. Mississippi Code Section 15 — 1— 36(15) provides that “[n]o action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action.” But “a properly served complaint — albeit a complaint that is wanting of proper pre-suit notice— should still serve to toll the statute of limitations until there is a ruling from the trial court.”

¶ 7. Compere admits that he failed to wait sixty days before filing his first complaint on March 4, 2009, and he does not appeal the trial court’s dismissal without prejudice of that complaint. However, Compere argues that the trial court erred in dismissing his second complaint with prejudice and in imposing monetary sanctions. This Court agrees. Compere filed the second complaint on July 9, 2009, well after providing sixty days’ notice. Thus, assuming for purposes of this appeal that Compere sent actual notice, he waited the sixty days required by Section 15 — 1— 36(15) before filing the second lawsuit.

¶ 8. While the trial court relied upon the doctrine of priority jurisdiction to support its ruling, that doctrine is inapplicable. In explaining priority jurisdiction, this Court has ruled:

It is fundamental that a plaintiff is not authorized simply to ignore a prior action and bring a second, independent action on the same state of facts while the original action is pending. Hence a second action based on the same cause will generally be abated where there is a prior action pending in a court of competent jurisdiction within the same state or jurisdictional territory, between the same parties, involving the same or substantially the same subject matter and cause of action, and in which prior action the rights of the parties may be determined and adjudged.

¶ 9. Priority jurisdiction typically applies when the same lawsuit has been filed in two different courts, not in the same court. More importantly, that doctrine presupposes a pending action that the plaintiff can proceed upon and obtain “adequate relief.” That is not the case with Compere’s first action, since he failed to wait the required sixty days. Even if applicable, Dr. Lantrip and St. Dominic fail to argue or cite any authority that a lawsuit should be dismissed with prejudice and with monetary sanctions under priority jurisdiction. Because the trial court erred in dismissing the second action, it abused its discretion by awarding sanctions and finding the second complaint “frivolous,” “without substantial justification,” and a “flagrant violation of longstanding Mississippi law.”

Conclusion

¶ 10. Compere waited the required sixty days before refiling the second medical-malpractice action. So the trial court should have retained the second complaint instead of dismissing it with prejudice and imposing monetary sanctions.

¶11. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, PIERCE AND KING, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.

      . Before the trial court, St. Dominic argued Compere had failed to provide it with any presuit notice. On that issue, the trial court ruled "[t]here is an issue of fact[.]” St. Dominic did not cross-appeal that finding.

      . See Miss.Code Ann. § 15-1-36(15) (Rev. 2003).

      . This Court has previously found that a "failure to comply with Section 15-1-36(15) does not reach the merits of a cause of action[,]” and therefore the proper motion is to request dismissal, not summary judgment. Brewer v. Wiltcher, 22 So.3d 1188, 1190 (Miss.2009).

      . The record does not contain a transcript of the hearing.

        .Price v. Clark, 21 So.3d 509 (Miss.2009).

      . Judge Yerger ordered Bobo to pay $1,711.25 to St. Dominic and $1,827.65 to Dr. Lantrip. Bobo does not dispute the amount of sanctions, but argues the trial court had no authority to impose them.

      . Dunn v. Yager, 58 So.3d 1171, 1197 (Miss.2011).

      . In re Spencer, 985 So.2d 330, 337 (Miss.2008).

      . Miss.Code Ann. § 15-1-36(15) (Rev.2003) (emphasis added).

      . Price, 21 So.3d at 522.

      . Compere also argues that Mississippi Code Section 15-1-36(15) is unconstitutional. However, that issue is moot under our holding.

      . See footnote 1 supra.

      . Cf. Harrison Co. Dev. Comm'n v. Daniels Real Estate, Inc., 880 So.2d 272, 276 (Miss.2004) (quoting Lee v. Lee, 232 So.2d 370, 373 (Miss.1970)), overruled on other grounds by City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703, 711 (Miss.2005).

      . See McCleave v. McCleave, 491 So.2d 522, 523 (Miss.1986).

      . See Abiaca Drainage Dist. of Leflore, Holmes, & Carroll Counties v. Albert Theis & Sons, 185 Miss. 110, 187 So. 200 (1939) ("The pendency of a prior suit between the same litigants and involving the same subject matter constitutes a bar unless adequate relief is not attainable in the prior suit.") (emphasis added).