author: RANDOLPH, Justice,

text:
    RIVERSIDE TRAFFIC SYSTEMS, INC., Lehman-Roberts Company and David Boyd Farr, Executor of the Last Will and Testament of Booker Farr, Deceased v. Robin BOSTWICK, Eric Frohn, Allen Maxwell, Herbert G. Rogers, III and Ray Tate.
    No. 2009-CT-00710-SCT.
    Supreme Court of Mississippi.
    Nov. 17, 2011.
    Rehearing Denied Feb. 16, 2012.

      Kathryn H. Hester, Edward Patrick Lancaster, Anthony Rhett Wise, attorneys for appellants.
    William 0. Rutledge, III, Valarie Blythe Hancock Lauranee Nicholas Chandler Rogers, attorneys for appellees.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court:

¶ 1. Today, this Court is called upon to determine whether the Union County Circuit Court erred in finding that the City of New Albany Board of Aldermen’s (“the City”) decision that a tract of land (“Farr tract”) had been legally rezoned from agricultural to industrial was arbitrary and capricious and that the City failed to give statutorily required notice before changing the zoning designation. We find that the circuit court did not err in finding that the City acted arbitrarily and capriciously, in finding that the City failed to give statutorily required notice, and in concluding that the property should remain zoned for agricultural use. Accordingly, we vacate the Court of Appeals’ holding and reinstate the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. The land at issue (“the Farr tract”) was annexed into the City of New Albany in or around 1968. At that time, the City zoned the Farr tract for agricultural use.

¶ 3. In 1996, the owner of a tract adjacent to the Farr tract applied for and received a zoning change, changing that tract’s zoning designation from agricultural to industrial. Following that zoning change, an asphalt plant was built on the adjacent tract.

¶ 4. In 1997, the City of New Albany adopted a Comprehensive Zoning Plan, including a new zoning map. The 1997 zoning map erroneously showed the Farr tract as zoned for industrial use. The 1997 map is the first time the Farr tract was described as zoned for industrial use. The record reveals no evidence that, prior to the 1997 zoning map, the City sought a change in the zoning of the Farr tract or undertook any other prescribed procedures for changing the land’s zoning designation.

¶ 5. In 1999 and 2000, the City undertook a round of property annexations. The City prepared a new City zoning map to include the newly annexed property, which once again erroneously shows the Farr tract as zoned industrial.

¶ 6. On July 6, 2001, The New Albany Gazette published a front-page article describing the City of New Albany’s proposed zoning changes and a color-coded proposed zoning map. The article provided that:

A large version of the map, which appears with this story, can be inspected at City Hall, and the hearing will be Thursday, July 26, at 6 p.m. in City Hall. Zoning has not been changed in the part of the city not annexed, but aldermen stressed that people from throughout the city are invited to the hearing to make comments if they wish.

(Emphasis added.) The City based its 2001 map on the 1997 zoning map, erroneously marking the Farr property as zoned for industrial use.

¶ 7. In 2007, Booker Farr agreed to sell the Farr tract to Lehman-Roberts Company, an asphalt-paving company. Lehman-Roberts intended to build an asphalt plant on the Farr tract. On June 5, 2008, Lehman-Roberts applied for a building permit from the City. Before Lehman-Roberts purchased the land, the use of the Farr tract was consistent with agricultural zoning. There is no evidence in the record that surrounding landowners had any reason to know or suspect that the Farr tract was zoned industrial.

¶ 8. Five days later, on June 10, 2008, surrounding landowners Robin Bostwick, Eric Frohn, Allen Maxwell, Herbert G. Rogers III, and Ray Tate (“Petitioners”) filed a petition with the New Albany Board of Aldermen to correct the City’s zoning map, which depicted the Farr tract as zoned industrial. Petitioners claimed that the Farr tract had been incorrectly labeled as zoned industrial and that its actual zoning was agricultural.

¶ 9. The New Albany Board of Aldermen held a hearing on August 29, 2008, and concluded that the Farr tract was zoned industrial. In its findings based on the August 29 hearing, the City recognized that “[t]he official minutes of the City of New Albany ... do not contain an entry wherein it was requested that the subject tract be rezoned from agricultural to industrial although it was shown as being zoned industrial on the official zoning map” and that “[b]ut for the minutes for the July 16, 2001 public hearing, when the current zoning map was adopted, the minutes of the City of New Albany do not contain any reference to a rezoning of the subject property.” (Emphasis added.) Nonetheless, the City found that “[t]he article appearing on the front page of the New Albany Gazette constituted sufficient legal notice of the public hearing on the proposed zoning map” and that “[Hollowing the July 16, 2001 public hearing, the subject property was properly zoned industrial.”

¶ 10. In September 2008, Petitioners filed a Bill of Exceptions in the Circuit Court of Union County appealing the New Albany Board of Aldermen’s decision, claiming that the City had failed to give notice of the change of the Farr tract’s zoning from agricultural to industrial, and therefore, that “[a]ny attempts to rezone the land ... would have been void due to the fact that the City failed to follow proper procedure.” The circuit court found that the City’s action “declaring the Farr tract to be classified as Industrial rather than Agricultural is arbitrary and capricious and should be reversed.” In April 2009, Riverside; David Farr, executor of Booker Farr’s estate; and Lehman-Roberts (“Riverside”) filed their “Notice of Appeal.”

¶ 11. In February 2011, the Court of Appeals rendered judgment, reversing the circuit court’s ruling and stating that Petitioners are “estopped from untimely challenging any technical failings of the zoning ordinance.” As the Court of Appeals found this issue dispositive, it did not address whether the City had provided the required notice for a change in zoning. Following the Court of Appeals’ decision, this Court granted Petitioners’ petition for writ of certiorari.

THE MISSISSIPPI COURT OF APPEALS

¶ 12. On appeal, the Mississippi Court of Appeals addressed only whether the Petitioners are estopped from challenging the change in zoning, and did not address whether the City gave the required notice before changing the zoning of the Farr tract from agricultural to industrial.

¶ 13. The Court of Appeals recognized that “[t]he record is not clear as to how the subject property was initially rezoned from agricultural to industrial use.” Nonetheless, the Court of Appeals found that “it is undisputed that the change in zoning was reflected on the City’s official zoning map in 1997. Since then, the property has been zoned industrial use.” (Emphasis added.) The court did not address whether the City had complied with the notice and hearing requirements to change the zoning designation prior to the 1997 putative zoning change, nor did it explain how the property could have been rezoned for industrial use without the City complying with the procedural requirements for changing the zoning designation.

¶ 14. The Court of Appeals construed the Petitioners’ claim as “[i]n essence, [an] attempt to challenge the 2001 zoning map[,]” which the Court of Appeals found was untimely, so that Petitioners “are now estopped from bringing such challenge.” The Court of Appeals based its decision on two cases, Walker v. City of Biloxi, 229 Miss. 890, 92 So.2d 227 (1957), and McKenzie v. City of Ocean Springs, 758 So.2d 1028 (Miss.Ct.App.2000). In Walker, this Court found that a challenge to an ordinance establishing zoning districts, made seventeen years after the ordinance went into effect, was untimely. Walker, 92 So.2d 227. The Walker Court provided that a “[property owner cannot attack ... [a] zoning ordinance because of noncompliance with formal requirements in [the] manner of its enactment, where it has been recognized by him, and has been in effect for more than nine years at the time the objections are asserted.” Id. at 229 (emphasis added). In McKenzie, the Court of Appeals considered an argument that a zoning amendment was invalid because the City gave only fourteen days’ notice of the hearing adopting the amendment, in violation of Mississippi law’s fifteen-day-notice requirement. McKenzie, 758 So.2d 1028. Citing Walker, the McKenzie court stated that “[o]nce an ordinance, though technically noncompliant with statutory dictates in its publication and recordation, has been recognized and relied, upon by the community and given effect by the local government for many years, it will not be struck down due to technical failings.” Id. at 1032 (emphasis added). The McKenzie court concluded that providing notice fourteen, rather than fifteen, days before a hearing was an “error ... of the most technical variety” and declined to strike down the zoning amendment. Id.

¶ 15. The Court of Appeals concluded that:

the subject property had been zoned industrial use for twelve years. The [Petitioners] did not attack the zoning ordinance until seven years after the adoption of the current zoning plan. Just as in McKenzie and Walker, the [Petitioners’] challenge cited technical failings in the adoption of the zoning map.... These alleged technical failings are insufficient to invalidate the City’s official zoning map that has been relied upon by the City and the property owner for many years. The City correctly concluded that the property is zoned for industrial use. The [Petitioners] are es-topped from bringing such a remote challenge to the zoning ordinance.

Riverside v. Bostwick, 78 So.3d 907, 911— 12 (Miss.Ct.App.2011).

ISSUES

¶ 16. This Court will consider:

1. Whether the City was required to provide notice before rezoning the Farr tract.
2. Whether the City violated Petitioners’ due-process rights by failing to provide the required notice before rezoning the Farr tract.

ANALYSIS

¶ 17. “[T]he proper standard of review in appeals from a circuit court’s review of a municipal authority’s decision ... is substantial evidence, the same standard which applies in appeals from decisions of administrative agencies and boards.” Wilkinson County Bd. of Supervisors v. Quality Farms, Inc., 767 So.2d 1007, 1010 (Miss.2000) (citation omitted). “ ‘The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party.’ ” Id. (citation omitted) (emphasis added).

I. Whether the City was Required to Provide Notice Before Rezoning the Farr Tract.

¶ 18. Under Mississippi Code Section 17-1-17, a city must provide notice before it may change a zoning designation:

Zoning regulations, restrictions and boundaries may, from time to time, be amended, supplemented, changed, modified or repealed upon at least fifteen (15) days’ notice of a hearing on such amendment, supplement, change, modification or repeal, said notice to be given in an official paper or a paper of general circulation in such municipality or county specifying a time and place for said hearing.

Miss.Code Ann. § 17-1-17 (Rev.2003) (emphasis added). We have provided that “[t]he required notice must set forth the pertinent information unambiguously so as to inform interested persons of the proposed action.” Ridgewood Land Co. v. Simmons, 243 Miss. 236, 137 So.2d 532, 538 (Miss.1962).

¶ 19. The record provides no evidence that the City of New Albany provided any notice before putatively changing the zoning status of the Farr tract on its maps from agricultural to industrial. The record does not include any evidence of how the purported zoning change came about: whether it was by an intentional act of the City, or, rather, by the City mistakenly marking the Farr tract as zoned for industrial use on the 1997 zoning map and carrying that mistake forward to the 2001 map. There being no proof of a legal change supported by compliance with statutorily required procedures for changing the zoning designation, we are not faced with a failure to comply technically, but rather a zoning change without any statutorily required notice.

¶ 20. The July 6, 2001, article in The New Albany Gazette did not remedy the City’s failure to provide notice of the purported 1997 zoning change for the Farr tract. The article was published after the alleged change, did not comply with statutory notice requirements, and did not “set forth the pertinent information unambiguously.” The article’s headline reads: “Aldermen discuss zoning for new area [,] ” and its first sentence stated that “[t]he new city administration encountered a long agenda at its first official meeting Tuesday, with one of the most discussed being zoning designations for the newly annexed part of the city.” (Emphasis added.) The article specifically provided that “[z]owing has not been changed in the part of the city not annexed. ...” The Farr tract was “in the part of the city not annexed[,]” as it had been annexed into the City in or around 1968. Thus, the 2001 article did not provide legal notice of a change to the Farr tract’s zoning designation.

¶ 21. Petitioners never had legal notice of a change in the Farr tract’s zoning designation, and the affected property was not used in a manner to alert surrounding landowners that a zoning change had occurred. Prior to Lehman-Roberts’s 2008 application for a permit to build an asphalt plant, the use of the Farr tract and surrounding tracts was consistent with an agricultural-use designation. As the 2001 newspaper article did not provide notice of a zoning change of the Farr tract from agricultural to industrial, and as the Farr tract was not used in a manner suggesting industrial use, Petitioners had no notice, or even reason to suspect, that the Farr tract had been rezoned for industrial use. Petitioners filed a petition with the City to address the proper zoning designation within five days of Lehman-Roberts’s application for a city permit to build an asphalt plant on the property. We discern no evidence that Petitioners should have been aware of the Farr tract’s industrial-zoning designation before that time, and Petitioners could not have been expected to challenge the industrial-zoning designation before they became aware of it.

¶ 22. The Court of Appeals erred in finding that Petitioners are es-topped from challenging the purported zoning change. We have defined equitable estoppel as “the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.” Kimball Glassco Residential Center, Inc. v. Shanks, 64 So.3d 941, 947-48 (Miss.2011) (citation omitted). Generally, “[f]or the doctrine of equitable estoppel to apply, [Riverside] must have relied on a misrepresentation by the [Petitioners] and not on a misrepresentation by some other individual or entity.” Id,. At the very least, “as an essential prerequisite to application of the doctrine of estoppel[,] the party to be estopped must have had knowledge of the situation.” Suggs v. Town of Caledonia, 470 So.2d 1055, 1058 (Miss.1985). Riverside has not alleged that Petitioners ever misrepresented the zoning of the Farr tract as industrial, and the record reveals no evidence that Petitioners had any reason to know of the industrial zoning.

¶ 23. The Court of Appeals’ reliance on Walker and McKenzie to find that Petitioners are estopped is misplaced. Walker concerned a commercial business, opened in 1952, on land zoned for residential use. Walker, 92 So.2d at 228. The landowner in that case argued that a 1940 ordinance establishing the property’s residential zoning was void, because the City had provided less than fifteen days’ notice before adopting the ordinance. Id. In that case, we recognized that the ordinance had not complied with the fifteen-day notice requirement when it went into effect, but we noted that the ordinance had since been amended thirty-two times, that 7,100 permits had been issued under it, and that the landowner challenging the ordinance had herself obtained permits and licenses under the ordinance. Id,, at 229. It was in view of these facts that we stated that a “[pjroperty owner cannot attack [the] validity of [a] zoning ordinance because of noncompliance with formal requirements in [the] manner of its enactment, where it has been recognized by him and has been in effect for more than nine years at [the] time the objections are asserted.” Walker v. City of Biloxi, 92 So.2d at 229 (citation omitted) (emphasis added). The record in this case does not include any evidence of a “zoning ordinance” changing the Farr tract’s zoning to industrial that Petitioners could have recognized. The record does not include any evidence of when or how the zoning of the Farr tract was changed, or that the City gave the required notice before making the zoning change. Unlike the landowner in Walker, who had herself obtained permits and licenses under the zoning ordinance that she challenged, there is no evidence that Petitioners had relied on the change. Instead, the use of the Farr tract remained consistent with agricultural zoning until Lehman-Roberts began seeking permits to build an asphalt plant on the property, at which time Petitioners timely took action to challenge the industrial zoning.

¶ 24. In McKenzie, the Mississippi Court of Appeals found that fourteen days’ notice, instead of the required fifteen days’ notice for a zoning amendment, was merely a “technical failing” and declined to strike down the challenged zoning amendment. McKenzie, 758 So.2d at 1032. Unlike the one-day discrepancy in McKenzie, the City’s failure to provide notice in this case was more than a mere “technical failing.” The record does not show that the City or the property owner had relied on an industrial zoning designation for many years, as the use of the Farr tract was consistent with agricultural zoning until Lehman-Roberts applied for a city permit to construct and operate an asphalt plant, when Petitioners challenged the industrial zoning.

¶ 25. The City’s failure to provide any notice of a change in the Farr tract’s zoning from agricultural to industrial is more than a mere “technical failing.” The record does not include any evidence of an official change in zoning from agricultural to industrial, as the only suggestion of the Farr tract’s purported industrial zoning consists of labels on the 1997 and 2001 zoning maps. The record includes no evidence of an application for a zoning change from the owner of the Farr tract, of public notice of a zoning change for the Farr tract, or of a hearing on a zoning change regarding the Farr tract. Finding no evidence that the zoning designation was ever properly reclassified from agricultural to industrial, and finding that the City did not provide the required notice for a change in zoning, we agree with the circuit court that the City acted arbitrarily and capriciously when it decided that the Farr tract had been legally rezoned for industrial use.

II. Whether the City Violated Petitioners’ Due Process Rights by Failing to Provide the Required Notice Before Rezoning the Farr Tract.

¶ 26. The Mississippi Constitution provides that “[n]o person shall be deprived of life, liberty or property except by due process of law.” Miss. Const, art. Ill, § 14. This clause guarantees “minimum procedural due process ... consisting of (1) notice and (2) opportunity to be heard.” Miss. Gaming Comm’n v. Freeman, 747 So.2d 231, 246 (Miss.1999). The Mississippi Constitution applies to municipalities and their subdivisions, such as the City of New Albany Board of Aldermen. See Myers v. City of McComb, 943 So.2d 1, 6 (Miss.2006) (“we must determine if the Mississippi Constitution ... [is] applicable to municipalities and the persons or collection of persons which compose same. This Court has answered ... in the affirmative for at least a century.”).

¶ 27. Applying due-process requirements to a municipal zoning decision, we have stated that “the essence of the due process rights ... is reasonable advance notice of the substance of the rezoning proposal together with the opportunity to be heard at all critical stages of the process.” Thrash v. Mayor and Comm’rs of City of Jackson, 498 So.2d 801, 808 (Miss.1986). The record includes no evidence, and no party has argued, that Petitioners were given the statutorily required notice of a change in the Farr tract’s zoning designation. We find that a newspaper article that was published four years after a purported zoning change occurred did not provide “advance notice” to satisfy due process. We further find that the article did not provide notice of “the substance of the zoning proposal” to change the Farr property’s zoning designation to industrial use, for the article repeatedly stated that the zoning changes applied only to newly annexed property, not to land that had been in the City for many years, such as the Farr tract. Accordingly, we find that the City’s failure to provide any notice before reclassifying the Farr tract’s zoning from agricultural to industrial violated Petitioners’ due process rights, and thus, Petitioners were not es-topped from contesting the reclassification, based on the facts as presented in this case.

CONCLUSION

¶ 28. We conclude that the Circuit Court of Union County did not err in finding that the New Albany Board of Aldermen acted arbitrarily and capriciously in deciding that the Farr tract was properly rezoned for industrial use and in failing to provide notice of the rezoning. We further conclude that the City’s failure to provide notice violated Petitioners’ due-process rights. Accordingly, we vacate the decision of the Court of Appeals, and reinstate and affirm the ruling of the circuit court overturning the City’s decision.

¶ 29. THE JUDGMENT OF THE COURT OF APPEALS IS VACATED AND THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY IS REINSTATED AND AFFIRMED.

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

      . After the circuit court ruled that the Farr tract was zoned agricultural and Riverside filed its notice of appeal, Farr filed a petition with the New Albany Board of Aldermen requesting that the City change the zoning of the Farr tract from agricultural to industrial. The City held a hearing on June 15, 2009, and issued findings on November 2, 2009, declaring that the Farr tract was zoned agricultural. The City recognized the circuit court’s finding that “notice was never adequately given under the requirements of state law, due in part to the fact that the City had failed to follow its own ordinances” and that “on both the prior and current maps, the subject property was mistakenly shown as industrial.” (Emphasis added.)
      On March 15, 2010, Petitioners filed a motion to dismiss, arguing that Farr was "judicially estopped and barred by election of remedies from pursuing this appeal” because, in seeking to change the property's zoning from agricultural to industrial, "he ha[d] signed a petition stating that [the Farr tract] is zoned agricultural.” In response, Riverside pointed out that ”[t]he issue on this appeal is whether the Union County Circuit Court erred in finding that the City of New Albany acted arbitrarily and capriciously when the City held that the Farr Property had been classified Industrial through the adoption of the City’s 1997 and 2001 Comprehensive Plans and Official Zoning Maps.” Riverside argued that Petitioners’ motion to dismiss sought "to bring before the Court matters that are outside the issue of whether the Union County Circuit Court was correct in finding that the City of New Albany’s September 2008 decision was arbitrary and capricious.” Petitioners’ motion to dismiss was denied.


source: Caselaw Access Project

author: DICKINSON, Presiding Justice, CARLSON, Presiding Justice, RANDOLPH, Justice, KITCHENS, Justice,

license: Public Domain

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Albert B. SMITH, III.
    No. 2011-JP-00319-SCT.
    Supreme Court of Mississippi.
    Dec. 15, 2011.

      John B. Toney, Darlene Ballard, attorneys for appellant.
    Andrew W.M. Westerfield, Merrida Buddy Coxwell, Jackson, attorneys for ap-pellee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Tunica County Circuit Court Judge Albert B. Smith III acknowledged that he abused his contempt powers and exhibited poor courtroom demeanor. The Mississippi Commission on Judicial Performance recommends punishment of a public reprimand, a $1,000 fíne, and an assessment of costs totaling $100. We accept the Commission’s recommendation.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. In 2006, Richard Becton failed to appear at his scheduled arraignment. When he later appeared and announced that he did not have counsel, Judge Smith responded, “You don’t take these charges serious [sic] do you?” After appointing counsel to represent Becton, Judge Smith said: “I would suggest you call [your counsel] ‘cause if you are convicted, I’m going to get you.” And according to the agreed statement of facts, Judge Smith told Bec-ton’s bail bondsman, Marshall Sanders, to “get on top of getting his people to court at the right time.” Then, after threatening to hold Sanders in contempt of court when, in future cases, his clients fail to appear as scheduled, Judge Smith ordered him jailed for a week — but released him after he had served three days.

¶ 3. In 2009, attorney Robert Little represented two clients who appealed their DUI (driving under the influence) convictions from the Tunica County Justice Court to Judge Smith’s court. When the first case was called for trial, Little and prosecutor Charles Graves both announced to Judge Smith that the case was not ready to proceed because the State had failed to comply with discovery. Judge Smith granted a continuance, set the case for trial, and admonished counsel to be prepared for trial. He then entered an order requiring the State to comply with defendant’s discovery requests.

¶ 4. The day before the trials of Little’s two clients were to begin, Graves informed the court administrator that he would be presenting proposed orders of dismissal for both cases, due to the arresting agency’s failure to provide the videos of his clients’ arrests. The following day, when Judge Smith called the first case for trial, Little was temporarily out of the courtroom, but Graves was present. When he attempted to approach the bench to present an order of dismissal, Judge Smith found both Little and Graves in contempt, imposing a fine against each and imprisoning Graves for several hours, during which — without having Graves brought into the courtroom — Judge Smith held a hearing on the contempt matter. Graves appealed Judge Smith’s judgment of contempt against him, and this Court reversed the judgment, finding that Judge Smith had violated Graves’s due process rights.

¶ 5. In September and October 2009, the Commission formally charged Judge Smith with willful misconduct in office and conduct prejudicial to the administration of justice. In lieu of a hearing, the Commission and Judge Smith signed an Agreed Statement of Facts and Proposed Recommendation. The record — consisting of the agreed factual findings and clerk’s papers — was filed with this Court without objection. Judge Smith and the Commission signed a Joint Motion for Approval of Recommendation, and the Commission filed a supporting brief.

¶ 6. Judge Smith’s brief, while supporting the joint motion, included factual allegations and assertions that disputed portions of the Agreed Statement and Joint Motion, so the Commission moved to strike those contradictory portions. Judge Smith responded, arguing that the parties had an understanding that he could present “mitigating” facts surrounding the circumstances leading to the contempt orders. Judge Smith also moved to strike the portion of the Commission’s brief that discussed prior informal actions taken against him.

¶ 7. We granted both motions because the post-agreement factual assertions by both parties were an impermissible attempt to supplement the record already filed with this Court.

ANALYSIS

¶ 8. Ordinarily, in reviewing contested judicial misconduct cases, we conduct an “independent inquiry of the record” and, in doing so, “accord careful consideration to the findings of fact and recommendations of the Commission, or its committee, which has had an opportunity to observe the demeanor of the witnesses.” But where, as here, the judge and Commission agree on the facts, we ordinarily will accept the findings as true.

¶ 9. And in deciding what conduct is sanctionable, and the appropriate punishment for sanctionable conduct, we look to Article 6, Section 177A of our Constitution:

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 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....

Miss. Const. Art. 6, § 177A.

¶ 10. Section 177A’s prohibition against “conduct prejudicial to the administration of justice” brings into play the five canons of the Mississippi Code of Judicial Conduct. And we have defined Section 177A’s term “willful misconduct in office” as

“[t]he 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.... 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 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.”

I. Judge Smith’s Violations

¶ 11. According to the Commission’s findings, Judge Smith violated Canons 2A and 3B(4) by addressing the lawyers and bail bondsman discourteously, that is, without respect and appropriate judicial temperament; and he violated Canons 2A, 3B(2), 3B(4), and 3B(8) by wrongly imposing contempt sanctions against two lawyers and a bail bondsman. The Commission also alleges he violated Canons 2A, 3B(4), and 3B(8) when he told a defendant “[i]f you’re convicted, I’m gonna get you.” We agree.

¶ 12. While I cannot dispute that my friend, Justice Kitchens, has vast experience and a storied and commendable tenure at the bar, I must say that my own three decades as a lawyer suggest that one knows a discourteous judge when encountering him or her in the courtroom; and a word or phrase discourteously said in the courtroom may very well not appear — on paper — to have been said discourteously. But the proof-in-the-pudding in this case is that Judge Smith agreed his “demeanor during the hearings was confrontational and discourteous to counsel ...,” and we take him at his word.

II. Sanctions

¶ 13. To assist our determination of appropriate sanctions, we have developed six factors to be applied to the facts of each case: (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.

A. Length and Character of Judge’s Public Service

¶ 14. Other than Judge Smith’s eleven-year tenure as a judge, the record is silent regarding the length and character of his public service.

B. Prior Caselaw

¶ 15. We have made it quite clear that the power granted to judges does not license them to be disrespectful to the lawyers and citizens who appear in their courtrooms; and that judges must conduct themselves with appropriate judicial demeanor.

In re Blake

¶ 16. In Blake, addressing the trial judge’s protracted display of inappropriate vitriol and disrespect for one of the lawyers in the case, we stated:

The record provides no justification whatsoever for [the judge’s] animosity and sarcasm toward [the lawyer]. We recognize and endorse a trial judge’s duty to control the courtroom, using reasonable measures to efficiently move matters along and keep over-zealous counsel in check. However, the professional obligations of dignity, respect and decorum [are] not limited to counsel. Canon I of the Code of Judicial Conduct states, “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 Commission on Judicial Performance v. Spencer

¶ 17. We also have said that, in an appropriate case, a judge’s display of inappropriate judicial temperament may lead to removal from office. In Spencer, we found that the judge exhibited “outrageous, erratic conduct and hostile demean- or” to those exposed to him, and we stated that “[ejected members of the judiciary have a duty to conduct themselves with respect for those they serve, including the court staff and the litigants that come before them.” We explained that if “judges do not behave with judicial temperament and perform their duties according to the law ... there seems little hope that our citizenry at large may understand and respect the legal process.”

Mississippi Commission on Judicial Performance v. Gunter

¶ 18. In Gunter, we cited Municipal Court Judge George Gunter for abusing his contempt powers when he called a defendant’s mother before the bench and “harshly berated and humiliated her.” When the mother attempted to speak, Judge Gunter ordered her arrested for contempt of court. Judge Gunter did not send any papers to the detention center but ordered that the mother be held twenty-four hours without bond. Several hours later, he called the detention center and had her released. The Court found that Judge Gunter had violated the Code of Judicial Conduct and sanctioned him with a public reprimand, $1,500 fine, and costs of the proceedings.

Mississippi Commission on Judicial Performance v. Byers

¶ 19. Circuit Court Judge Shirley C. Byers was charged with abuse of contempt powers for holding a newspaper reporter in contempt after learning the reporter had disobeyed an order restricting publication of an article about a court proceeding. She had the reporter arrested and brought before her, but no affidavit, show-cause order, or notice of hearing was filed, nor was the reporter allowed to present any witnesses or evidence.

¶ 20. The Commission charged Byers with six counts of judicial misconduct, including the abuse-of-contempt charge, and the Court opined that her misuse of contempt powers was “the most troubling and serious” offense. The Court found that Byers had abused her powers by incorrectly handling the constructive-contempt situation, and it ordered Judge Byers to be publicly reprimanded and to pay a $1,500 fine and costs amounting to $2,023.59.

C. The Magnitude of the Offense and the Harm Suffered

¶ 21. Judge Smith’s failure to adhere to proper procedure when exercising his contempt power was a serious abuse of power because of the incarceration and threats of incarceration in the two matters before him. His actions caused a negative impact on Graves and Sanders because of the deprivation of their liberty. A less serious, albeit significant, impact to Graves, Little, Sanders, and Becton was the abusive and disrespectful behavior to which they were subjected.

D. Isolated Incident or Pattern of Conduct

¶ 22. The record contains no information or indication that Judge Smith’s behavior in these two cases was part of a pattern of similar conduct.

E. Moral Turpitude

¶ 23. This Court has defined “moral turpitude” as “including], but 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.”

¶ 24. This Court expanded the definition to include a violation of “some basic tenets of daily living in a civil society, such as living by the 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.” Judge Smith abused the judicial process by incarcerating and threatening to incarcerate individuals for contempt without providing them basic due process rights, and his actions constituted moral turpitude.

F. Mitigating or Aggravating Circumstances

¶ 25. This Court has held that mitigating circumstances exist when a judge publicly acknowledges the inappropriateness of the conduct and agrees with the Commission’s findings. We accept Judge Smith’s agreement with the Commission’s findings and the proposed sanctions in mitigation of his inappropriate conduct. The record includes no evidence of aggravating circumstances.

Conclusion

¶ 26. We find that Judge Smith violated Canons 2A, 3B(2), 3B(4), and 3B(8) of the Mississippi Code of Judicial Conduct and, therefore, committed willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, as referenced in Article 6, Section 177A of the Mississippi Constitution. After reviewing the agreed facts submitted by the Commission and Judge Smith; and after giving careful consideration to the Commission’s recommendations, we order that Judge Smith be publicly reprimanded, fined $1,000, and assessed $100 in court costs.

¶ 27. TUNICA COUNTY CIRCUIT COURT JUDGE ALBERT B. SMITH, III, SHALL BE PUBLICLY REPRIMANDED, PAY A $1,000 FINE, AND BE ASSESSED COSTS OF $100. THE PUBLIC REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE OF THE TUNICA 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 SMITH IN ATTENDANCE.

WALLER, C.J., AND PIERCE, J., CONCUR. CARLSON, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.; RANDOLPH AND KITCHENS, JJ„ JOIN THIS OPINION IN PART. RANDOLPH, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY LAMAR, J.; KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION IN PART. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.; CARLSON, P.J., JOINS THIS OPINION IN PART.

CARLSON, Presiding Justice,

concurring in part and in result:

¶ 28. I join the plurality in finding that Judge Smith abused his contempt powers and exhibited poor courtroom demeanor. I write separately, however, because I find the plurality’s standard of review to be inconsistent with this Court’s precedent.

¶ 29. Without citation, the plurality pronounces that “where, as here, the judge and Commission agree on the facts, we ordinarily will accept the findings as true.” Plur. Op. ¶ 8. In his dissent, Justice Kitchens correctly finds that the plurality’s statement is a newly-announced standard of review and that it is contrary to the well-established standard that this Court conducts an independent review of the record. Kitchens Op. ¶ 32; see Miss. Comm'n on Judicial Performance v. Boone, 60 So.3d 172, 184 (Miss.2011). I agree with Justice Kitchens’s analysis of our standard of review in judicial performance cases and take this opportunity to comment on this Court’s standard.

¶30. Earlier this year, in Boone, this Court clarified the standard of review in judicial performance cases and overruled any case that stands for the proposition that this Court does not conduct an independent review of the record. Boone, 60 So.3d at 177. Boone cited In re Removal of Lloyd W. Anderson, Justice Court Judge, 412 So.2d 743 (Miss.1982). Anderson was this Court’s first opportunity to examine Article 6, Section 177A of the Mississippi Constitution of 1890, which 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 of this state....”

¶ 31. Discussing our responsibilities mandated by Section 177A, Anderson held that this Court should conduct an independent inquiry of the record in judicial performance cases. Anderson states:

Therefore, it appears we are required to be a factfinding body, at least to some degree, in every case of this nature.... The power to impose sanctions is delegated solely to this Court; it therefore follows 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 [to] the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.

Anderson, 412 So.2d 743, 746. Id. The standard announced in Anderson and affirmed in Boone does not distinguish between cases with agreed facts and those with contested facts. We apply the same standard to all judicial performance cases.

¶ 32. For the reasons discussed above, I do not join the plurality’s proposition that “where ... the judge and Commission agree on the facts, we ordinarily will accept the findings as true.” Plur. Op. ¶ 8.1 do, however, join the plurality’s finding that Judge Smith’s actions 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. I also join the plurality’s finding that Judge Smith should be publicly reprimanded, fined $1,000, and assessed costs of $100.

KING, J., JOINS THIS OPINION. RANDOLPH AND KITCHENS, JJ., JOpIN THIS OPINION IN PART.

RANDOLPH, Justice,

concurring in part and in result:

¶ 33. I concur in part and result with the plurality.

¶ 34. The plurality properly struck portions of the briefs of both Judge Smith and the Commission as “impermissible attempt[s] to supplement the record” of proceedings of the Commission. (Plur. Op. at ¶ 7). I supplement the Plurality’s holding by adding that neither the Commission nor a judge can enter “an understanding” to present additional facts, mitigating or otherwise, separate and apart from the record below. (Plur. Op. at ¶ 6). This Court previously has stated that:

an Agreed Statement of Facts on which the parties submit [a] case for trial is binding and conclusive on them, and the facts stated are not subject to subsequent variation. So, the parties will not be permitted to deny the truth of the facts stated, or the truth, competency or sufficiency of any admission contained in the Agreed Statement or to maintain a contention contrary to the Agreed Statement or be heard to claim that there are other facts that the Court may presume to exist, or to suggest, on appeal, that the facts were other than stipulated, or that any material fact was omitted.

In re Collins, 524 So.2d 553, 561 (Miss. 1988) (on rehearing) (quoting 83 C.J.S. Stipulations § 25 (1954)). “Alleged facts,” which are not agreed upon or tested by cross-examination, should not be considered facts at all.

¶ 35. Regarding the conflicting opinions on the standard of review, it is clear (and has been for at least a century or two, or longer) that a court may consider agreed-upon facts, i.e., stipulations. I find no fault in the plurality accepting them as true here, for an “independent inquiry of the record” reveals the Agreed Statement of Facts. Accordingly, for purposes of this case, the disagreement appears to be much ado about nothing, a distinction without a practical difference.

¶ 36. Finally, I reject the plurality’s finding that Judge Smith’s acts involved “moral turpitude.” (Plur. Op. at ¶ 24). A finding of moral turpitude “must involve some immorality” and 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.” Miss. Comm’n on Judicial Performance v. Vess, 10 So.3d 486, 493 (Miss.2009) (quoting Miss. Comm’n on Judicial Performance v. Gordon, 955 So.2d 300, 305 (Miss.2007)); Miss. Comm’n on Judicial Performance v. Roberts, 952 So.2d 934, 942 (Miss.2007) (emphasis added). I discern no evidence of deceit, fraud, extortion, trickery, monetary gain or any other indicia of conduct which involves Judge Smith using his position “for greed or other inappropriate motives!,]” so as to support a finding of moral turpitude. Vess, 10 So.3d at 493 (quoting Gordon, 955 So.2d at 305). But the absence of moral turpitude does not alter my agreement with the plurality’s recommended sanction.

¶ 37. For these reasons, I respectfully concur in part and in result.

LAMAR, J„ JOINS THIS OPINION. KITCHENS AND CHANDLER, JJ„ JOIN THIS OPINION IN PART.

KITCHENS, Justice,

dissenting:

¶ 38. Today’s plurality opinion announces a new standard of review for judicial performance cases that reach us via agreed recommendations: This Court no longer will conduct an “independent inquiry of the record,” but, instead, “where, as here, the judge and Commission agree on the facts, we ordinarily will accept the findings as true.” Plur. Op. ¶ 8. Because I cannot embrace this new standard, and because the agreed facts in the present case do not provide us a clear factual basis sufficient to support a finding that Judge Smith engaged in judicial misconduct, I respectfully dissent.

¶ 39. According to our rules, this Court is charged with “prepar[ing] and publishing] a written opinion and judgment directing such disciplinary action, if any, as it finds just and proper.” Miss. Comm’n on Judicial Performance R.10E. Our opinion and judgment are to be based on a “review of the entire record,” and this Court may “accept, reject, or modify, in whole or in part, the findings and recommendation of the Commission.” Miss. Comm’n on Judicial Performance R.10E. While there may be cases in which this Court “may simply choose to defer to the Commission,” Mississippi Commission on Judicial Performance v. Neal, 774 So.2d 414, 417 (Miss.2000) (citing In re Bailey, 541 So.2d 1036, 1040 (Miss.1989)), it should not be that agreed recommendations ordinarily will receive our automatic approval, for to do so would be inconsistent with this Court’s duty to make an independent inquiry of the record before deciding each case. Miss. Comm’n on Judicial Performance v. Boone, 60 So.3d 172, 176 (Miss.2011) (quoting In re Removal of Anderson, 412 So.2d 743, 746 (Miss.1982)).

¶ 40. In two recent cases, we rejected the Commission’s recommended sanctions of two justice court judges for their having passed several driving under the influence of alcohol (DUI) cases to the inactive files upon in-court recommendations of the county prosecuting attorney. Miss. Comm’n on Judicial Performance v. Little, 72 So.3d 501 (Miss.2011); Miss. Comm’n on Judicial Performance v. McGee, 71 So.3d 578 (Miss.2011). We held that the Commission erroneously had found, and the accused judges had agreed, this practice to be prohibited by statute, which, we held, it is not. A sentencing trial court judge has the duty to determine in criminal cases that are resolved by agreement between the prosecution and the defendant that there is, indeed, a factual basis for the guilty plea, and that the prosecution’s sentencing recommendation, if any, is within prescribed parameters. Similarly, we, as the Court with the ultimate responsibility for meting out sanctions in judicial performance eases, have a solemn obligation to ascertain whether the agreements reached between the Commission on Judicial Performance and accused judges have sound factual bases, and, if so, whether the conduct which an accused judge admits actually amounts to violation of Mississippi’s Code of Judicial Conduct. See Miss. Comm’n on Judicial Performance v. Sanford, 941 So.2d 209, 217-18 (Miss.2006) (holding that a joint recommendation is “akin to a criminal defendant entering into a plea agreement with the prosecution, whereby the defendant agrees to plead guilty to the offense in return for the prosecution’s promise of a specific recommended sentence to the judge for consideration”); URCCC 8.04 A(3) (“Before the trial court may accept a plea of guilty, the court must determine that ... there is a factual basis for the plea.”)

¶ 41. In the present case, Judge Smith is being sanctioned for “wrongly imposing contempt sanctions against two lawyers and a bail bondsman,” for addressing these individuals “discourteously,” and for telling a defendant, “if you’re convicted, I’m gonna get you.” Plur. Op. ¶¶ 2, 11. However, based on the agreed facts and the record before us, I would not accept the Commission’s determination that Judge Smith’s conduct in these regards is sanctionable.

¶ 42. For instance, the plurality does not specify how Judge Smith was discourteous; but according to the agreed facts, “Canons 2A and 3B(4) were violated when Respondent addressed counsel and Mr. Sanders discourteously in court by addressing them by their last names only or as ‘lawyer’ and not extending to those individuals the usual common courtesy and dignity of addressing them as ‘Mister.’ ” Yet, in writing its own opinion, the plurality has done the same thing, referring to a litigant, Richard Becton, as “Becton,” to a bail bondsman, Marshall Sanders, as “Sanders,” to two attorneys, Robert Little and Charles Graves, as “Little” and “Graves,” and to Circuit Court Judge Shirley C. Byers as “Byers.” A random and cursory perusal of this Court’s decisions over many years reveals that we, as well as most, if not all, other appellate courts in the United States, routinely refer to litigants, lawyers, clerks, public officials of all kinds, and other jurists, including members of the United States Supreme Court, by their surnames only. Likewise, I cannot discern how referring to counsel as “lawyer” is any more of an insult than referring to the bench as “judge.” During my long career at the Bar, I deemed it a high honor to be addressed as “lawyer.”

¶ 43. The plurality finds that “the proof-in-the-pudding in this case is that Judge Smith agreed his ‘demeanor during the hearings was confrontational and discourteous to counsel ...,’ and we take him at his word.” Plur. Op. ¶ 12 (emphasis added). Thus, despite its protestations to the contrary, the plurality is not conducting its “own independent inquiry of the record.” Plur. Op. n. 4. Moreover, the entire statement in the agreed facts reads as follows: “Respondent’s demeanor during the hearing was confrontational and discourteous to counsel as evidenced by the attached transcript and included audio recording.” (Emphasis added.) The plurality gives no indication that its decision is based on an independent review of the transcript and recording. Finally, this statement in the agreed facts refers only to Judge Smith’s interactions with Little and Graves and not Becton.

¶ 44. Judge Smith’s other interactions with Defendant Richard Becton are easily understood and are not at all disturbing to this justice, who practiced law in Mississippi’s criminal courts for well over forty years. His question to Becton, ‘You don’t take these charges serious[ly] do you?” was addressed to an indictee who appeared for arraignment without an attorney. This clearly was an effort by the judge to impress on the accused the importance of his having counsel to attend and represent him in court on a felony charge. There can be no dispute that Becton needed an attorney. The judge was trying to convince him of the importance and urgency of obtaining one. It was in this context, and for this purpose, that the judge continued, “I would suggest you call [your counsel] ‘cause if you are convicted, I’m going to get you.” Rather than an impermissible threat, I view this as a constructive and emphatic effort on the judge’s part to impress upon Becton the gravity of his situation, and the certainty that, if he were found guilty, the day would come when he would be brought before Judge Smith for sentencing. Instead of tip-toeing around the serious matters at hand, the judge, in no uncertain terms, made it plain to Bec-ton that it was his responsibility to get in touch with his lawyer in order to have the benefit of the lawyer’s assistance in circuit court. In so doing, Judge Smith was fulfilling the duty that this Court imposes on Mississippi’s circuit judges to be vigilant in helping accused persons understand the importance of being represented in court by legal counsel. See Patton v. State, 34 So.3d 563 (Miss.2010) (reversing criminal conviction because defendant was not warned of the dangers and disadvantages of self-representation) (citing Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); URCCC 8.05).

¶45. Regarding the contempt orders, Judge Smith’s rulings are more akin to a mistake of law rather than a willful, sanc-tionable abuse of contempt power. See Miss. Comm’n on Judicial Performance v. Martin, 921 So.2d 1258, 1263 (Miss.2005) (denial of bond not sanctionable when judge’s actions were based on honest, yet mistaken, understanding of constitutional rights). When the county prosecutor appealed his contempt convictions, the Office of the Attorney General defended Judge Smith, which included the Attorney General’s filing a petition for writ of certiorari with this Court after the Court of Appeals had reversed and rendered. Graves v. State, 66 So.3d 148, 151 (Miss.2011) (citing Graves v. State, 66 So.3d 158 (Miss.Ct.App. 2010)). By defending the contempt citations, the Attorney General — the chief lawyer of this state — recognized that Judge Smith’s actions had an arguable basis in the law. The law of contempt is not so clear that the justices of this Court can always agree on such matters. See In re E.K., 20 So.3d 1216 (Miss.2009). Indeed, this Court reviewed the Graves case “to clarify certain aspects of the law of contempt.” Graves, 66 So.3d at 151. Simply because a judge erred in imposing contempt citations does not warrant a finding that the judge’s conduct was sanctionable. See e.g., C.K.B. v. Harrison County Youth Court, 36 So.3d 1267, 1276 (Miss.2010) (reversing contempt sanctions against child, his mother, and his counsel for an alleged violation of the court’s directive in other, unrelated cases); Brame v. State, 755 So.2d 1090, 1094 (Miss.2000) (holding that attorney’s gross negligence did not rise to the level of willful conduct required to support a finding of criminal contempt). Because the defense attorney was held in contempt for the same reasons as the county prosecutor, Judge Smith’s holding the defense attorney in contempt also fails to warrant a sanction from this Court.

¶ 46. The bail bondsman, Marshall Sanders, was held in contempt in a separate incident, but the plurality does not explain how Judge Smith’s actions in that instance were improper. According to the agreed findings of fact:

During the exchange with Mr. Sanders, Respondent threatened Mr. Sanders with contempt. At one point Mr. Sanders approached a deputy in the presence of the Respondent, placed his hands behind his back and offered to submit to arrest. Respondent ordered Mr. Sanders jailed for a week. Mr. Sanders did not appeal the Respondent’s order. The record does not reflect that Mr. Sanders requested bond or an attorney. Respondent alleges that he properly held Mr. Sanders in direct criminal contempt for talking in the courtroom. Respondent further alleges that, in his opinion, Mr. Sanders’ demeanor, attitude and gestures were disrespectful to the Court and warranted the use of the Court’s contempt power.

These findings are supported by the transcript of the proceedings, but neither the record nor the agreed findings suggests that Judge Smith willfully abused the court’s contempt power. Accordingly, I cannot agree that Judge Smith’s mistake of law warrants sanctions. Martin, 921 So.2d at 1263.

¶ 47. Because the agreed findings have failed to set forth clearly sanctionable conduct, and because an independent review of the record reveals none, I would dismiss the joint motion asking us to approve the recommended sanctions. For the foregoing reasons, I respectfully dissent.

CHANDLER, J., JOINS THIS OPINION. CARLSON, P.J., JOINS THIS OPINION IN PART.

      . Graves v. State, 66 So.3d 148 (Miss.2011).

      . See, e.g., Miss. Comm'n on Judicial Performance v. Dearman, 66 So.3d 112 (Miss.2011).

        . 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)).

      .This statement raises concern for Presiding Justice Carlson, but his concern is misplaced. We announce no new standard of review today. We continue to conduct our own independent inquiry of the record. But we are unable to find a single case where we have failed to accept agreed findings of fact as true. Thus, we are justified in our conclusion that we "ordinarily” accept them as true. But in a particular case in which we do not agree with the agreed facts — should such a case ever arise — -we are certainly free to reject them.

      . Miss.Code of Judicial Conduct pmbl.

      . In re Quick, 553 So.2d 522, 524-25 (Miss. 1989).

      . 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 177.

      . In re Blake, 912 So.2d 907 (Miss.2005).

      . Id. at 914.

      . Miss. Comm’n on Judicial Performance v. Spencer, 725 So.2d 171 (Miss.1998).

      . Id. at 178.

      . Id.

      . Miss. Comm’n on Judicial Performance v. Gunter, 797 So.2d 988 (Miss.2001).

      . Id. at 989.

      . Id.

      . Id. at 990.

      . Id.

      . Id. at 992.

      . Miss. Comm'n on Judicial Performance v. Byers, 757 So.2d 961 (Miss.2000).

      . Id. at 970.

      . Id.

      . Id.

      . Id. at 973.

      . Gibson, 883 So.2d at 1158 n. 2.

      . Miss. Comm'n on Judicial Performance v. Sanford, 941 So.2d 209, 217 (Miss.2006).

      . Gibson, 883 So.2d at 1158.

      . This includes, i.e., Judge Smith’s “factual allegations and assertions that disputed portions of the Agreed Statement and Joint Motion” and the Commission's discussion of "prior informal actions taken against” Judge Smith. (Plur. Op. at ¶ 6).

      . (Plur. Op. at ¶ 8).

      . (Carlson Op. at ¶31); (Kitchens Op. at ¶ 38).

      . I join Justice Randolph's separate opinion to the extent that he finds Judge Smith's actions did not involve moral turpitude.


author: KITCHENS, Justice,

text:
    Fredrick WATTS v. STATE of Mississippi.
    No. 2010-KA-00917-SCT.
    Supreme Court of Mississippi.
    Feb. 2, 2012.

      Lisa Mishune Ross, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Scott Stuart, attorneys for appellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. Frederick Watts was convicted of felony fleeing or eluding a law enforcement officer in a motor vehicle under Mississippi Code Section 97-9-72 (Rev.2006), and was sentenced to five years in custody, with two years suspended and three years of post-release supervision. On appeal, Watts argues that his conviction for felony fleeing subjected him to double jeopardy, because he previously had pled guilty to reckless driving in the Lauderdale County Justice Court. He also argues that the evidence was insufficient to support a guilty verdict. Finding no reversible error, we affirm Watts’s conviction and sentence.

Facts and Procedural History

¶ 2. In the early morning hours of June 1, 2008, Watts, driving his red Ford Mustang, was stopped at a roadblock manned by officers of the Marion Police Department and the Lauderdale County Sheriffs Department. One of the officers asked Watts for his driver’s license and commented that he smelled the aroma of alcohol coming from the vehicle. According to the officer, Watts then “took off at a fast pace.”

¶ 3. Two other officers gave chase in their vehicles, activating their sirens and flashing lights, but Watts refused to stop. A digital video recorder in one of the police vehicles captured the events. Watts led the officers from Marion to the City of Meridian, at speeds ranging from 100 to 135 miles per hour. Watts eventually lost control of his car in a residential area, and the car stopped when it struck a tree. Watts then fled on foot, and was not apprehended.

¶4. On June 10, 2008, Watts and his attorney went to the Lauderdale County Sheriffs Department. Watts signed a confession that had been written by his attorney, admitting that he had fled the roadblock, “was going over 100 miles per hour knowing the officers were chasing me,” and that after hitting a tree, he had fled on foot.

¶ 5. On July 24, 2008, Watts was indicted for felony fleeing in violation of Mississippi Code Section 97-9-72. He was not arrested or provided a copy of the indictment until August 11, 2009, and he pled not guilty to the indictment on August 24, 2009.

¶ 6. On August 27, 2008, Watts had entered a plea of guilty to reckless driving in Lauderdale County Justice Court. The date of the violation to which Watts pled guilty was June 1, 2008, the same date pled in the felony indictment. Watts paid the $203 fíne imposed in justice court.

¶ 7. Before his trial for felony fleeing, Watts moved to dismiss the indictment, arguing that a trial would subject him to double jeopardy for the same offense. The trial court denied the motion, and a jury convicted Watts of felony fleeing.

Discussion

I. Watts was not subjected to double jeopardy because the justice court lacked jurisdiction to adjudicate felony fleeing.

¶ 8. Our federal and state constitutions prohibit successive prosecutions for the same offense. U.S. Const. Amend. V; Miss. Const. Art. 3, § 22. As a question of law, we review a claim of double jeopardy de novo. Brown v. State, 731 So.2d 595, 598 (Miss.1999).

¶ 9. Watts argues, as he did before trial, that he could not be tried for felony fleeing in the circuit court after he had been convicted of misdemeanor reckless driving in justice court. This frames the issue in terms of Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which states, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” The trial court denied Watts’s motion to dismiss the indictment, finding that “[fjelony fleeing requires an additional element to be proved.”

¶ 10. Regardless of Blockburger’s application to this case, former jeopardy is not implicated when the court which first tried the accused lacked jurisdiction finally to adjudicate all of the pending charges, for “a court without jurisdiction to try the person for the crime charged cannot place the accused in jeopardy.” Butler v. State, 489 So.2d 1093, 1094 (Miss.1986). In the present case, Watts pled guilty to a misdemeanor-reckless driving—in justice court while he was under indictment for felony fleeing. Both charges arose from the same incident and the same conduct. Because the justice court lacked jurisdiction to try the pending felony charge, Watts could not be acquitted or convicted in justice court and later succeed in asserting former jeopardy as a bar to the already-pending felony charge in circuit court. See Miss.Code Ann. § 99-33-1(2) (Rev. 2007) (granting justice courts jurisdiction, concurrent with circuit courts, over misdemeanor criminal charges); Chester v. State, 216 Miss. 748, 63 So.2d 99 (1953) (affidavit filed in justice court charging defendant with simple assault did not preclude indictment and conviction for aggravated assault in circuit court); cf. Smith v. State, 219 Miss. 741, 69 So.2d 837 (1954) (conviction in justice court did not bar subsequent prosecution in circuit court when conviction was obtained for purposes of defeating circuit court jurisdiction).

¶ 11. Watts also argues, as a separate issue, that his trial attorney was ineffective for failing to file a petition for interlocutory review of his double jeopardy claim. Because the double jeopardy claim is without merit, Watts is unable to demonstrate the prejudice required to establish ineffective assistance of counsel. Loden v. State, 43 So.3d 365, 388 (Miss.2010).

II. The evidence was sufficient to support the verdict.

¶ 12. When reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The elements of the crime of felony fleeing or eluding a law enforcement officer in a motor vehicle are set out in Mississippi Code Section 97-9-72:

(1) The driver of a motor vehicle who is given a visible or audible signal by a law enforcement officer by hand, voice, emergency light or siren directing the driver to bring his motor vehicle to a stop when such signal is given by a law enforcement officer acting in the lawful performance of duty who has a reasonable suspicion to believe that the driver in question has committed a crime, and who willfully fails to obey such direction shall be guilty of a misdemeanor....
(2) Any person who is guilty of violating subsection (1) of this section by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates a motor vehicle in a manner manifesting extreme indifference to the value of human life, shall be guilty of a felony....

(Emphasis added.)

¶ 13. Watts argues that the State failed to prove that the officers “had reasonable suspicion to believe that [he] ha[d] committed a crime.” Miss.Code Ann. § 97-9-72(1) (Rev.2006). He avers in his brief that “the State did not elicit testimony from any officer concerning what if any crime Watts allegedly committed.” Watts fails to mention in his argument that the officer who initially approached Watts’s vehicle at the roadblock testified that he had detected the scent of an “intoxicating beverage” coming from the vehicle. Thus, he does not refute the State’s position that the officer had reasonable suspicion to believe that Watts had been driving under the influence of an intoxicating beverage in violation of Mississippi Code Section 63-11-30. Accordingly, we find this issue without merit.

III. There was no cumulative error.

¶ 14. Finally, Watts makes a very cursory argument that he was denied a fair trial based on cumulative errors, but does not cite specific errors other than those already discussed above. Finding “no error in part, there can be no reversible error to the whole.” Harris v. State, 970 So.2d 151, 157 (Miss.2007) (citing Gibson v. State, 731 So.2d 1087, 1098 (Miss.1998)).

Conclusion

¶ 15. None of the issues raised on appeal warrants reversal. Former jeopardy is not implicated in this case because, at the time Watts pled guilty to reckless driving, he was under indictment for felony fleeing, a charge over which the justice court had no jurisdiction to render a verdict. In addition, there was sufficient evidence to convict Watts of felony fleeing under Mississippi Code Section 97-9-72, and there was no cumulative error requiring reversal. Therefore, we affirm Watts’s conviction and sentence.

¶ 16. CONVICTION OF FELONY FLEEING OR ELUDING LAW ENFORCEMENT OFFICER IN A MOTOR VEHICLE AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWO (2) YEARS SUSPENDED AND THREE (3) YEARS POST-RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED.

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


author: GRIFFIS, J.,

text:
    RIVERSIDE TRAFFIC SYSTEMS, INC., Lehman-Roberts Company and Booker Farr, Appellants v. Robin BOSTWICK, Eric Frohn, Allen Maxwell, Herbert G. Rogers, III and Ray Tate, Appellees.
    No. 2009-CA-00710-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.
    Rehearing Denied May 31, 2011.
    Kathryn H. Hester, Jackson, Edward Patrick Lancaster, Anthony Rhett Wise, attorneys for appellants.
    William O. Rutledge III, Laurance Nicholas Chandler Rogers, attorneys for appel-lees.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Robin Bostwick, Eric Frohn, Allen Maxwell, Herbert G. Rogers III, and Ray Tate (the “Appellees”) filed a petition asking the City of New Albany, Mississippi, to correct its zoning map to show that the subject property is zoned for agricultural use instead of industrial use. The City denied the petition, found that there was no mistake in the zoning, and found that the property was legally zoned for industrial use.

¶ 2. The City’s decision was appealed to the Union County Circuit Court. The circuit court held that there was insufficient notice of the City’s intent to classify the property as industrial; therefore, the court ruled that the City’s decision was arbitrary and capricious. The City was ordered to amend its zoning records to indicate that the property is presently zoned agricultural.

¶ 3. Lehman-Roberts Company and Booker Farr (the “Appellants”), intervened in this action and now appeal the circuit court’s judgment. We find that the Appellees are estopped from untimely challenging any technical failings of the zoning ordinance. As this issue is disposi-tive of the appeal, we decline to address Appellants’ other assignments of error. The judgment of the circuit court is reversed, and the City’s decision is reinstated.

FACTS

¶ 4. The subject property consists of 29.42 acres that was annexed into the City in 1968 and zoned for agricultural use. It is located on Munsford Drive, which is a four-lane highway built in 1996 and 1997 to connect U.S. 78 and Highway 30 West. Farr purchased the property from Bobby Carter, Alan Jackson, and Bostwick in 1999. Farr testified that he was unaware of the zoning classification of the property at the time of purchase.

¶ 5. The City’s zoning map at the time, which had been adopted in 1997, showed the subject property zoned for industrial use. The City adopted its current zoning map in 2001. A public hearing was held, on July 26, 2001, to adopt the zoning map. While notice of that meeting was not placed in the legal-notices section of the newspaper, an article about the meeting ran on the front page of the New Albany Gazette. The article gave twenty days’ notice of the meeting, and it contained a zoning map showing the subject property in an industrial-use zone. There was no objection to the zoning of the property made at the July 26, 2001, public meeting.

¶ 6. Farr first inquired about the zoning in 2002, when he decided to sell the property. Mike Armstrong, the City’s zoning administrator, informed Farr that the property was zoned industrial use. Farr marketed the property as industrial use.

¶ 7. Farr agreed to sell the property to Lehman-Roberts, an asphalt paving company with operations in Tennessee and North Mississippi. When Toyota announced the opening of a plant in Blue Springs, Mississippi, Lehman-Roberts decided to build an asphalt plant nearby. Lehman-Roberts was awarded two paving contracts to improve U.S. 78 and the section of frontage road at the new Toyota plant. Lehman-Roberts determined that the property on Munsford Drive would be a convenient location for the asphalt plant because it provided easy access to U.S. 78.

¶ 8. David Greene of Lehman-Roberts contacted Armstrong to determine the zoning of the property. Armstrong showed Greene the City’s zoning map, which classified the property as industrial use. Armstrong assured Greene that the industrial-use zoning of the property allowed for the construction of an asphalt plant.

¶ 9. In order to build the plant, Lehman-Roberts was required to obtain a permit from the Mississippi Department of Environmental Quality. A public hearing was held in New Albany on November 29, 2007. MDEQ requested an official opinion from the City as to the property’s zoning. The City responded, stating: “It is the position of the City that the Booker Farr tract which Lehman-Roberts proposes to purchase is zoned industrial on the official zoning map of the City. It was shown as such prior to the 2001 annexation and it remains so.” Following a second hearing held in Jackson, MDEQ granted Lehman-Roberts’s requested permit.

¶ 10. On June 5, 2008, Lehman-Roberts requested a building permit from the City for the construction of the asphalt plant. On June 10, 2008, the Appellees, as owners of nearby property, filed a petition with the City to correct the zoning map or, in the alternative, rezone the property to agricultural use. They argued that the property had been zoned agricultural use since its annexation in 1968, and that, at some point prior to the 2001 zoning map, the property was mistakenly changed to industrial use on the City’s official zoning map. Appellees requested that the City acknowledge this mistake and correct the map to show the property as agricultural.

¶ 11. The City issued Lehman-Roberts’s requested building permit on August 8, 2008. On August 18, 2008, the Appel-lees filed a complaint for emergency relief and a motion for mandamus against the City in the circuit court. The complaint stated that the City had refused to revoke or stay the building permit it had issued to Lehman-Roberts until the zoning issue was resolved. The circuit court granted the Appellees’ request and instructed the City that the building permit granted to Lehman-Roberts was stayed until the zoning issues were resolved.

¶ 12. On August 29, 2008, the City held a public hearing on the Appellees’ petition to correct the zoning map. The City later denied the petition, stating that the zoning of the property was changed from agricultural to industrial sometime in 1996 because the property was shown as industrial use on the 1997 official zoning map. Thus, the official zoning map had shown the property as industrial for twelve years.

¶ 13. The City made the following findings:

• the subject property was shown as industrial use on the current zoning map, adopted in 2001, and the zoning map immediately preceding the current map;
• there is no record of a rezoning of the subject property except for the minutes of the 2001 hearing at which the current zoning map was adopted;
• the owner of an adjacent piece of property applied for and received a rezoning of his property to industrial use in 1996, and he has since operated an asphalt plant on the adjacent property;
• an article on the front page of the New Albany Gazette provided sufficient notice of the 2001 public hearing to adopt the current zoning map even though a notice was not posted in the legal-notices section of the newspaper;
• following the 2001 public hearing, the subject property was properly zoned industrial use; and,
• the Appellees failed to show a mistake in the rezoning of the subject property that was not cured by the 2001 public hearing.

¶ 14. The Appellees filed a bill of exceptions in the circuit court to appeal the City’s decision. The circuit court found that the subject property was never legally changed from agricultural to industrial use because the City did not give proper notice of the July 26, 2001, meeting at which the current zoning map was adopted.

¶ 15. The circuit court noted that the article on the front page of the New Albany Gazette announced that the meeting would be held on July 26, but it failed to state the year of the meeting. Further, the article stated: “Zoning has not been changed in the part of the city not annexed, but aldermen stressed that people from throughout the city are invited to the hearing to make comments if they wish.” Because the subject property was already located within the city limits and not a part of the 2001 annexation, the circuit court held that this notice was not sufficient for a change in the zoning of the subject property.

¶ 16. As such, the circuit court found that the City’s decision was arbitrary and capricious. The City was ordered to change its official map and records to indicate that the subject property was zoned agricultural use.

STANDARD OF REVIEW

¶ 17. “The decisions of municipal zoning authorities, because they are legislative decisions, are presumed valid.” Woodland Hills Conservation Ass’n, Inc. v. City of Jackson, 443 So.2d 1173, 1180 (Miss.1983). The standard of review in zoning cases is whether the action of the City was arbitrary or capricious and whether it was supported by substantial evidence. Broadacres, Inc. v. City of Hattiesburg, 489 So.2d 501, 503 (Miss.1986). A reviewing court in a zoning matter does not sit as a “superzoning commission.” City of Biloxi v. Hilbert, 597 So.2d 1276, 1280 (Miss.1992). In fact, “the zoning decision of a local governing body which appears ‘fairly debatable’ will not be disturbed on appeal, and will be set aside only if it clearly appears the decision is arbitrary, capricious, discriminatory, illegal or is not supported by substantial evidence.” Id. The party challenging the decision bears the burden of proof. McWaters v. City of Biloxi, 591 So.2d 824, 827 (Miss.1991).

ANALYSIS

¶ 18. The record is not clear as to how the subject property was initially rezoned from agricultural to industrial use. The Appellees’ argument throughout these proceedings has been that this change in zoning was the result of a mistake on the part of the City. Chris Watson, an urban planner who assisted the City in its creation of the current zoning map, testified that there was no clerical mistake in the zoning of the property. Regardless, it is undisputed that the change in zoning was reflected on the City’s official zoning map in 1997. Since then, the property has been zoned industrial use.

¶ 19. In 2001, the City’s current zoning map was adopted. The 2001 map, like the 1997 map, indicates that the subject property is zoned industrial use. In 2008, the Appellees challenged the adoption of the 2001 zoning map. They argued that proper notice was not provided to rezone the subject property. In essence, the Appel-lees attempt to challenge the 2001 zoning map. This challenge is untimely. Therefore, the Appellees are now estopped from bringing such challenge.

¶ 20. In McKenzie v. City of Ocean Springs, 758 So.2d 1028, 1030 (¶ 3) (Miss. Ct.App.2000), nearby property owners challenged the Ocean Springs Yacht Club’s request to expand its pier. They argued that an ordinance adopted in 1977 was invalid because only fourteen days’ notice was given of the hearing adopting the ordinance. Id. at 1031 (¶ 9). Mississippi Code Annotated section 17-1-17 (Supp.2010) provides the notice requirements for a change in zoning, stating:

Zoning regulations, restrictions and boundaries may, from time to time, be amended, supplemented, changed, modified or repealed upon at least fifteen (15) days’ notice of a hearing on such amendment, supplement, change, modification or repeal, said notice to be given in an official paper or a paper of general circulation in such municipality or county specifying a time and place for said hearing....

Because section 17-1-17 required that fifteen days’ notice be given of a hearing to change zoning, the property owners argued that the City of Ocean Springs could not rely on the comprehensive zoning ordinance. McKenzie, 758 So.2d at 1031 (¶ 9). This Court held that the City of Ocean Springs had relied upon the legality of its comprehensive zoning ordinance for twenty years without objection; thus, the technical failings of the notice did not render the ordinance invalid. Id. at 1032 (¶ 10).

¶ 21. The decision in McKenzie relied on the supreme court’s ruling in Walker v. City of Biloxi, 229 Miss. 890, 893, 92 So.2d 227, 228 (1957). There, the' City of Biloxi challenged the operation of a commercial business in a residential zoning area. Id. In response, the owner and operator of the business challenged the zoning ordinance based on improper notice. The supreme court found that the City of Biloxi, in fact, did not follow the statutory notice requirements; thus, had a timely attack been made, the ordinance would be held invalid. Id. at 894-95, 92 So.2d at 228-29.

¶ 22. However, the attack came approximately seventeen years after the ordinance was adopted. The supreme court held that: “Waiver, estoppel or laches may operate under certain circumstances to preclude relief against zoning ordinances or regulations. This may be true with respect to defects and irregularities in the mode of enactment of a zoning ordinance.” Id. at 895, 92 So.2d at 229 (quoting 8 McQuillin, Municipal Corporations, Sec. 25.291, 3d Ed.). The supreme court also cited as authority a ruling from the Supreme Court of New Jersey stating, “[a pjroperty owner cannot attack [the] validity of [a] zoning ordinance because of noncompliance with formal requirements in [the] manner of its enactment, where it has been recognized by him and has been in effect for more than nine years at time objections are asserted.” Id. (citing Benequit v. Borough of Monmouth Beach, 125 N.J.L. 65, 13 A.2d 847 (1940)).

¶ 23. Here, the subject property had been zoned industrial use for twelve years. The Appellees did not attack the zoning ordinance until seven years after the adoption of the current zoning map. Just as in McKenzie and Walker, the Appellees’ challenge cited technical failings in the adoption of the zoning map. They argued that the article published in the local newspaper was not proper notice because it appeared on the front page and not in the legal-notices section of the paper. They claimed that the notice only referred to newly annexed property despite the article’s inclusion of a zoning map of the entire City clearly showing the subject property zoned industrial.

¶ 24. These alleged technical failings are insufficient to invalidate the City’s official zoning map that has been relied upon by the City and the property owner for many years. The City correctly concluded that the property is zoned for industrial use. The Appellees are estopped from bringing such a remote challenge to the zoning ordinance. Accordingly, the judgment of the circuit court is reversed, and judgment is rendered to reinstate the City’s decision.

¶ 25. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Riverside Traffic Systems, Inc., a company owned by Farr, is no longer a party to this case because an order was entered by the circuit court substituting Farr in place of Riverside Traffic Systems.

      . The property was initially deeded to Riverside Traffic Systems, but it is now owned by Farr individually.

      . We note that this change occurred when the subject property was owned by Bostwick, an appellee in this case, who waited until 2008 to challenge the zoning of the property. Bo-stwick testified that the property was zoned agricultural use when he sold it to Farr in 1999; however, he did not state the basis for his belief. His statement is contrary to the City's proof that the property was zoned industrial on the 1997 official zoning map.