author: WALLER, Chief Justice,

text:
    Kathleen L. CALDWELL v. THE MISSISSIPPI BAR. The Mississippi Bar v. Kathleen L. Caldwell.
    Nos. 2011-BR-01834-SCT, 2012-BD-00049-SCT.
    Supreme Court of Mississippi.
    Oct. 4, 2012.

      Kathleen L. Caldwell, for appellant/ap-pellee.
    Adam B. Kilgore, Jackson, for appel-lee/appellant.
   WALLER, Chief Justice,

for the Court:

¶ 1. These consolidated cases are comprised of a formal complaint filed by the Mississippi Bar seeking reciprocal discipline against attorney Kathleen L. Caldwell, following the Supreme Court of Tennessee’s imposition of a two-year suspension from the practice of law in 2009 and a public censure in 2011, and a petition for reinstatement from Caldwell from her suspension imposed by this Court in 2004.

FACTS

¶ 2. In May 2004, this Court suspended Caldwell from the practice of law for ninety days as reciprocal discipline based on a suspension of equal length imposed by the Supreme Court of Tennessee several months earlier. Miss. Bar v. Caldwell, 890 So.2d 855, 856-57 (Miss.2004). In October 2003, the Supreme Court of Tennessee had suspended Caldwell based on eighteen separate complaints of misconduct. Her “ ‘chronic ethical misconduct’ ” included: (1) failing to file pleadings and documents; (2) losing evidence; (3) allowing a statute of limitations to run; and (4) neglecting to keep her clients informed. Id. at 856 n. 1. She had been admonished informally four times prior to 2004 — three times by the Supreme Court of Tennessee and once by this Court. Id. at 856.

¶ 3. In enforcing its reciprocal discipline, this Court found that Caldwell already had completed the ninety-day suspension, because she voluntarily had suspended her Mississippi law practice several months before. Id. at 857. We stated that she could petition for reinstatement if she met the conditions set forth by the Supreme Court of Tennessee. Id. Those included: (1) completing a course in ethics and professionalism at the University of Memphis School of Law and an ethics workshop conducted by the Tennessee Board of Professional Responsibility (“the Board” or “the Tennessee Board”); (2) undergoing a law-practice management evaluation and complying with its suggestions; (3) permitting disciplinary counsel for the Tennessee Board of Professional Responsibility to monitor her law practice for one year; and (4) making restitution to various ex-clients. Id.

¶ 4. More than seven and a half years later, on December 8, 2011, Caldwell petitioned this Court for reinstatement. Her two-page petition states that she has completed the prerequisite conditions for reinstatement and that she is an attorney in good standing in Tennessee.

¶5. In response to Caldwell’s petition, the Mississippi Bar filed a motion to dismiss. It seeks to dismiss her petition on two grounds. First, the Bar argues that her petition fails to meet the requirements set forth in procedural Rule 12.7 of the Mississippi Rules of Discipline. Second, just two days before filing its motion, the Bar had filed a complaint requesting this Court to discipline Caldwell reciprocally for misconduct that had occurred in Tennessee since her May 2004 suspension.

¶ 6. After completing her 2003 Tennessee suspension, Caldwell resumed practicing law in that state. But, in March 2005, the Tennessee Board filed a petition for discipline against her. The Board alleged that Caldwell had neglected two clients’ $2.6 million race-discrimination lawsuit. The aggrieved clients complained that Caldwell had done nothing on their case for four or five years. During that time, they had not been able to speak with Caldwell; they had dealt only with Caldwell’s secretary, Carolyn Holland. The clients said that they eventually were informed about a $10,000 settlement offer. Upon learning this, they contacted the court and discovered that their case had been dismissed with prejudice weeks earlier for failure to prosecute. After reporting Caldwell’s misconduct, they each received checks totaling $7,000 from Caldwell’s personal checking account. The clients alleged, and the Board agreed, that Caldwell most likely paid the clients from her own personal funds.

¶ 7. Six months later, the Board filed a supplemental petition for discipline against Caldwell. The supplemental petition charged that Caldwell had failed to properly supervise a nonlawyer assistant, that she had neglected a client’s case, that she had engaged in misrepresentation, and that she had failed repeatedly to respond in a timely manner to an ethics complaint against her.

¶ 8. The Board filed yet another supplemental' petition for discipline in March 2006. That petition alleged that Caldwell’s negligence and failure to communicate had caused a client’s case to be dismissed. The client, as a result, had filed an ethics complaint. After the complaint was filed, Caldwell informed the client that she no longer could represent the client in two pending matters. Yet, in one of those pending cases, Caldwell did not tell the opposing party that she had withdrawn from representation. Instead, Caldwell continued representation, settled the case, had the settlement check made payable to herself and the former client, and paid herself a third of the total amount. Caldwell blamed these acts and omissions on her former secretary, Holland. To the extent that Holland was responsible, the Board charged Caldwell with violating the rules of professional conduct by allowing a nonlawyer assistant to engage in such misconduct.

¶ 9. Caldwell entered a conditional guilty plea to the petition and supplemental petitions for discipline. Accordingly, in March 2009, the Supreme Court of Tennessee suspended Caldwell from the practice of law for twenty-four months — an actual suspension of six months, followed by a probation period of eighteen months. The court ordered Caldwell to report monthly to a “practice monitor” during the probation period to ensure that she complied with the rules of professional conduct. The court further required Caldwell to pay all costs and expenses within ninety days of the date of entry of the order.

¶ 10. Seventeen months into the twenty-four month suspension, in August 2010, the Board filed another petition for discipline against Caldwell. Caldwell had resumed practicing law under probation in October 2009, but the Board asserted that she had been ineligible to do so because she had failed to pay costs and expenses within ninety days of the court’s March 2009 order. Caldwell had not satisfied that condition until March 2010; thus, she had engaged in the unauthorized practice of law from October 2009 to March 2010. Caldwell also entered a conditional guilty plea to this complaint. Consequently, in June 2011, the Supreme Court of Tennessee ordered that Caldwell be publicly censured and required her to pay the costs and expenses of the proceeding.

¶ 11. On January 9, 2012, the Mississippi Bar filed a complaint requesting that Caldwell be disciplined reciprocally based on the Supreme Court of Tennessee’s March 2009 and June 2011 disciplinary orders. The complaint does not allege Caldwell committed misconduct in this state; rather, the Bar merely seeks to have Caldwell reciprocally disciplined for her misconduct in Tennessee. The Bar does not request or recommend any specific punishment; it simply recommends that Caldwell be disciplined and be required to pay the costs and expenses associated with the complaint.

¶ 12. In her answer to the Bar’s complaint, Caldwell attributes the events that led to her March 2009, twenty-four-month suspension in Tennessee to Holland. Holland, Caldwell says, had caused the two individuals with the $2.6 million race-discrimination lawsuit to believe that Caldwell would represent them, and had created documents and forged checks from Caldwell’s personal account. Caldwell says that she terminated Holland in May 2005; afterward, she received calls from numerous purported clients, none of whom she had agreed to represent. She maintains that she self-reported to the Tennessee Board of Professional Responsibility and contacted the Memphis Police Department and the Tennessee Attorney General’s Office regarding more than $200,000 that was missing from her general-account funds. Holland eventually repaid the money, according to Caldwell. As for the June 2011 public censure, Caldwell says that she had believed that she had complied fully with the requirements imposed by the Tennessee Supreme Court in its March 2009 order.

¶ 13. Caldwell maintains that she has fulfilled all the requirements of the March 2009 and June 2011 orders, including the payment of all costs and expenses. A letter from the chief disciplinary counsel for the Tennessee Board, dated November 18, 2011, states that Caldwell is a member in good standing of the Tennessee Bar. The letter further confirms that Caldwell has completed the requirements set forth in the Supreme Court of Tennessee’s October 2003 order of suspension. The letter, however, is silent concerning the March 2009 and June 2011 orders.

¶ 14. Caldwell requests that this Court deny the Bar’s complaint and motion to dismiss and grant her petition for reinstatement to the practice of law.

DISCUSSION

I. The Bar’s Complaint

¶ 15. Under Rule 13 of the Mississippi Rules of Discipline, when sanctions are imposed against an attorney by another jurisdiction, such sanctions are grounds for disciplinary action in this state. Further, the rule provides that an order of enforcement from another jurisdiction serves as “conclusive evidence of the guilt of the offense or unprofessional conduct” alleged. M.R.D. 13. Hence, this Court will not pursue any further fact-finding but, rather, will determine solely the extent of the discipline to be imposed. Miss. Bar v. Gaharan, 38 So.3d 629, 630 (Miss.2010); Miss. Bar v. Ishee, 987 So.2d 909, 911 (Miss.2007).

A. Appropriate Discipline

¶ 16. In determining reciprocal discipline, “the sanction imposed in this State generally mirrors the sanction imposed in the sister state, absent extraordinary circumstances which compel, justify or support variance from the foreign jurisdiction’s sanction.” Ishee, 987 So.2d at 911. However, we may impose sanctions less or more severe than those imposed by another jurisdiction. Id. In determining appropriate discipline, including reciprocal discipline, this Court has established nine criteria to consider:

(1) the nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of the dignity and reputation of the profession; (4) protection of the public; (5) the sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer’s mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating and/or mitigating factors.

Miss. Bar v. Hodges, 949 So.2d 683, 686 (Miss.2006). As long as each criterion is taken into consideration, we need not address each separately. Id.

¶ 17. An attorney facing reciprocal discipline in this state may “offer any mitigating factors which he [or she] thinks serve to diminish his [or her] culpability and therefore diminish the necessity for, or severity of, sanctions to be imposed by this Court.” Miss. Bar v. Strauss, 601 So.2d 840, 844 (Miss.1992). In her answer to the Bar’s complaint, Caldwell lays the blame for the alleged misconduct on her former secretary, just as she did before the Tennessee Board. She claims to have made “strenuous efforts” to cure the problems caused by Holland. Yet, Caldwell ignores that she was disciplined for, inter alia, failing to properly supervise Holland. As such, the fact that Holland may have committed some of the alleged misconduct does not constitute a mitigating factor in favor of Caldwell.

¶ 18. With respect to the 2011 discipline for engaging in the unauthorized practice of law, Caldwell claims that she believed she was in full compliance with the Tennessee Supreme Court’s 2009 Order of Enforcement and that the Board was fully aware that she had resumed her law practice. Despite this contention, Caldwell entered a conditional guilty plea on this charge, effectively admitting to the unauthorized practice of law. Consequently, Caldwell’s belief that she was in full compliance does not constitute a mitigating factor in her favor.

¶ 19. The Tennessee Board considered, either directly or implicitly, the remaining criteria for determining appropriate discipline, except for the sanctions which this Court previously has imposed in similar cases.

¶ 20. In Terrell v. Mississippi Bar, 662 So.2d 586 (Miss.1995), this Court suspended an attorney for six months for conduct amounting to neglect and failure to keep a client advised of the status of his case.

¶21. In Mississippi Bar v. Hall, 612 So.2d 1075 (Miss.1992), this Court suspended an attorney for sixty days for neglecting a client’s case, after the attorney previously had been disciplined for similar conduct. The Court imposed an additional ninety-day suspension one year later on the same attorney for similar conduct. Hall v. Miss. Bar, 631 So.2d 120 (Miss.1993).

¶ 22. In Mississippi Bar v. Thompson, 5 So.3d 330 (Miss.2008), this Court reversed and remanded an attorney discipline case to the Bar’s complaint tribunal, holding that the one-year retroactive suspension imposed by the tribunal was insufficient punishment for misconduct involving, inter alia, failure to supervise a nonlawyer assistant.

¶ 23. The Mississippi Bar makes no specific recommendation other than for Caldwell to be disciplined and required to pay the costs and expenses connected with this action. In 2009, Tennessee suspended Caldwell for two years — six months’ active suspension followed by eighteen months of probation — for her misconduct. In 2011, Tennessee publicly censured Caldwell for resuming her law practice prior to completing the conditions of her probation. There are no “extraordinary circumstances which compel, justify or support variance” from Tennessee’s sanction. See Ishee, 987 So.2d at 911; Gaharan, 38 So.3d at 630. Therefore, Caldwell shall be suspended from the practice of law for six months, followed by eighteen months of probation to be served under terms and conditions as determined by the Bar’s Committee on Professional Responsibility. See M.R.D. Procedural Rule 12.3 (“It shall be the duty of the Committee on Professional Responsibility to monitor such suspensions with probation.”). Furthermore, Caldwell shall be publicly reprimanded, and assessed all costs and expenses of this disciplinary action. Finally, pursuant to procedural Rule 12.2, Caldwell may be reinstated only upon her filing a petition with this Court for reinstatement following her suspension.

B. Retroactive v. Prospective Discipline

¶ 24. An issue that arises in this case, but that neither the Bar nor Caldwell addresses, is whether Caldwell’s punishment should be made retroactive or prospective. Caldwell’s suspension in Tennessee, including the probationary period, would have been complete on March 24, 2011, two years after the Tennessee Supreme Court issued its order of enforcement. The Mississippi Bar filed its complaint against Caldwell on January 9, 2012, nearly ten months after the natural expiration of Caldwell’s suspension in Tennessee.

¶ 25. In reciprocal discipline cases, we often have made discipline in this state prospective, even when the period of discipline imposed by another state had expired by the time this Court imposed its discipline. See, e.g., Ishee, 987 So.2d at 910, 912 (imposing a four-month suspension from the date of the order even though four-month suspension in Tennessee already had been completed at time of the order); Mississippi Bar v. Drungole, 913 So.2d 963, 965, 970 (Miss.2005) (thirty-day suspension imposed from date of order even though thirty-day suspension in bankruptcy court already had been completed); Mississippi Bar v. Daniels, 890 So.2d 872, 873-74 (Miss.2004) (two-year suspension imposed from date of order even though two-year suspension in Connecticut already had been completed at time of the order). By contrast, in Hodges, we imposed a one-year suspension on an attorney for reciprocal discipline but made the suspension retroactive to mirror the Tennessee Supreme Court’s imposition of a retroactive suspension. Hodges, 949 So.2d at 687.

¶26. In Thompson, we looked to the following factors, set out by the New Jersey Supreme Court, for guidance in determining whether retroactive discipline is appropriate:

Whether the conduct is part of a continuing pattern or whether there is only a single instance of misconduct; whether there is a significantly attenuated relationship between the misconduct and the practice of law; and whether the passage of time mitigates the severity of the discipline required. The last factor — the remoteness of the misconduct — has two facets. The first is whether the passage of time itself has accomplished rehabilitation of the lawyer. The second is whether the transgressions are so remote in time that intervening developments and current circumstances dilute the public interest in proper and prompt discipline.

Thompson, 5 So.3d at 339-340 (quoting People v. Abelman, 804 P.2d 859, 862 (Colo.1991) (citing In re Silverman, 113 N.J. 193, 549 A.2d 1225, 1245-46 (1988))).

¶ 27. Regarding the first factor, Caldwell’s conduct is clearly part of a continuing pattern. In several of its petitions for discipline, the Tennessee Board found, as an aggravating circumstance, that Caldwell’s conduct displayed a pattern of misconduct. Caldwell has been the subject of several disciplinary matters, including a prior reciprocal disciplinary proceeding and an informal admonition in this Court. Miss. Bar v. Caldwell, 890 So.2d 855, 856 (Miss.2004). Accordingly, the “pattern-of-conduct” factor weighs in favor of prospective discipline.

¶ 28. Regarding the “attenuated-relationship” factor, Caldwell’s misconduct includes neglecting clients’ cases, failing to supervise her nonlawyer assistant, and engaging in the unauthorized practice of law. Thus, there is no “attenuated relationship,” and certainly not a significant one, between Caldwell’s misconduct and the practice of law. In fact, all of Caldwell’s misconduct deals squarely with her actions in the course of practicing law. This is in contrast to the case in Hodges, where the disciplinary action arose from Hodges’s consumption of alcohol in violation of his monitoring agreement with the Tennessee Lawyers Assistance Program. Hodges, 949 So.2d at 684. Considering Caldwell’s misconduct, the “attenuated-relationship” factor weighs in favor of prospective discipline.

¶ 29. The third factor for the Court to weigh in considering whether to impose retroactive discipline is the remoteness of the misconduct. In considering the first facet of this factor — whether the passage of time itself has accomplished rehabilitation of the attorney — we note that the record appears to indicate Caldwell is currently in good standing with the Tennessee Bar. Attached to Caldwell’s answer to the Bar’s complaint is a letter from the chief disciplinary counsel of the Tennessee Board addressed to this Court in connection with Caldwell’s “application for admission to the Mississippi Bar.” This letter states that the Tennessee Board has “previously issued Ms. Caldwell a Letter of Good Standing concerning her status in Tennessee.” The letter then addresses Caldwell’s 2003 disciplinary matter in Tennessee and states that Caldwell complied with all conditions imposed by the Tennessee Supreme Court at that time. The letter is silent with regard to Caldwell’s compliance with the conditions imposed on her by the Tennessee Supreme Court in 2009 and 2011. However, the reference to the “Letter of Good Standing” indicates that Caldwell is in good standing with the Tennessee Bar, and the letter post-dates Caldwell’s most recent disciplinary matter in Tennessee. This suggests that Caldwell, in the eyes of the Tennessee Supreme Court, has been “rehabilitated” by her probationary period. Accordingly, the first facet of the remoteness requirement weighs in favor of retroactive discipline.

¶ 30. The second facet of the remoteness requirement is “whether the transgressions are so remote in time that intervening developments and current circumstances dilute the public interest in proper and prompt discipline.” Thompson, 5 So.3d at 339-340. We previously have imposed prospective discipline as late as five years after the misconduct at issue. In Daniels, we imposed reciprocal discipline in the form of a two-year suspension for the attorney’s misconduct in Connecticut. Daniels, 890 So.2d at 873-74. The Court’s order was handed down in 2004 and the misconduct at issue had occurred in 1998. Id. at 874; Daniels v. Statewide Grievance Comm., 72 Conn.App. 203, 804 A.2d 1027, 1029-1030 (2002). Nevertheless, we made the suspension effective from the date of our order. Daniels, 890 So.2d at 874. We can find no “intervening developments and current circumstances” that “dilute the public interest in proper and prompt discipline” in this case. See Thompson, 5 So.3d at 339-340. Hence, the second facet of the remoteness factor weighs in favor of prospective discipline.

¶ 31. For these reasons, we determine that Caldwell’s suspension shall be imposed prospectively, effective from the date of this order.

II. Caldwell’s Petition for Reinstatement

¶ 32. Caldwell has petitioned for reinstatement from her suspension, which we ordered on May 27, 2004. The Bar filed a motion to dismiss her petition. The Bar contended that Caldwell was not eligible for reinstatement for two reasons: 1) Caldwell’s continued misconduct demonstrated that she had not rehabilitated herself since her 2004 suspension in Mississippi; and 2) Caldwell’s petition lacked the requirements of procedural Rule 12.7. Accordingly, the Bar requested this Court dismiss Caldwell’s petition.

¶ 33. The Bar is correct that Caldwell’s petition lacks the requirements of procedural Rule 12.7. In In re Benson, 890 So.2d 888, 890 (Miss.2004), we announced the five requirements a petition for reinstatement must include to comply with the rule:

The petitioner must: (1) state the cause or causes for suspension or disbarment; (2) give the name and current address of all person, parties, firms, or legal entities who suffered pecuniary loss due to the improper conduct; (3) make full amends and restitution[;] (4) show that he [or she] has the necessary moral character for the practice of law; and (5) demonstrate the requisite legal education to be reinstated to the privilege of practicing law.

Id. Caldwell’s petition fails to include the cause for her suspension in Mississippi or any information on the persons or entities who suffered pecuniary loss due to her conduct. The petition also says nothing of her moral character, with the arguable exception that she is currently in good standing with the Tennessee Bar.

¶34. A petitioner for reinstatement must prove that he or she has met the requirements of procedural Rule 12.7. In re Shelton, 987 So.2d 898, 900 (Miss.2006). Caldwell has failed to meet these requirements. For this reason, we grant the Bar’s motion to dismiss Caldwell’s petition for reinstatement. See Jennings v. Miss. State Bar, 533 So.2d 443 (Miss.1988) (dismissing petition for failing to meet requirements).

CONCLUSION

¶ 35. Because Caldwell’s petition for reinstatement lacks the requirements of the Mississippi Rules of Discipline, we grant the Bar’s motion to dismiss the petition.

¶ 36. With respect to the Bar’s complaint, we hold that Caldwell should be reciprocally disciplined based on her misconduct in Tennessee. We find that Caldwell shall be suspended from the practice of law for six months, followed by eighteen months of probation under terms and conditions to be imposed by the Committee on Professional Responsibility. Caldwell also shall be publicly reprimanded and assessed the costs and expenses incurred by the Mississippi Bar’s filing of the Formal Complaint.

¶ 37. Procedural Rule 8.6(h) states that an attorney shall be publicly reprimanded by the circuit court of the disciplined attorney’s county of residence. Although Caldwell’s address is in Memphis, Tennessee, she practices in the courts of DeSoto County. Therefore, we direct that Caldwell shall appear on the first day of the next term of the circuit court of DeSoto County on which a jury venire is present, after this decision is final, to be publicly reprimanded in open court by the presiding judge.

¶ 38. AS TO 2011-BR-01834-SCT: PETITION OF KATHLEEN L. CALDWELL FOR REINSTATEMENT TO THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI IS DISMISSED. AS TO 2012-BD-00049-SCT: KATHLEEN L. CALDWELL IS HEREBY SUSPENDED FROM THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI FOR SIX (6) MONTHS, TO BE FOLLOWED BY EIGHTEEN (18) MONTHS OF PROBATION TO BE SERVED UNDER TERMS AND CONDITIONS AS DETERMINED BY THE COMMITTEE ON PROFESSIONAL RESPONSIBILITY. CALDWELL SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE ON THE FIRST DAY OF THE NEXT TERM OF THE CIRCUIT COURT OF DESOTO COUNTY IN WHICH A JURY VENIRE IS PRESENT, AFTER THIS DECISION IS FINAL. CALDWELL IS ASSESSED WITH ALL COSTS.

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

      . Although bar matters are not criminal in nature, the Supreme Court of Tennessee refers to Caldwell’s agreement with the Board of Professional Responsibility as a “conditional guilty plea.”

      . In the prior reciprocal disciplinary action against Caldwell, we made the suspension retroactive because Caldwell voluntarily had suspended her practice as of the date of her suspension from the Tennessee Bar. Caldwell, 890 So.2d at 857.

      . Rule 11(c)(4) of the Rules of Discipline requires a disbarred or suspended attorney to "notify all [a]ffected courts” of any disbarment or suspension. M.R.D. 11(c)(4). Where, as here, an attorney fails to notify this Court of a disbarment or suspension in another jurisdiction, we reserve the discretion to impose discipline in this state prospectively, without any analysis the Thompson factors that are discussed under Issue I, B.

      . Under Rule 12.7, Caldwell was required to state the cause or causes for her May 2004, ninety-day suspension by this Court. But, additionally, Rule 11(c)(4) required Caldwell to "notify all [a]ffected courts” of any disbarment or suspension; thus, Caldwell also was required to inform this Court about the disciplinary action she has received in Tennessee since May 2004.


source: Caselaw Access Project

author: MICHAEL K. RANDOLPH, Justice,

license: Public Domain

text:
    THE MISSISSIPPI BAR, Appellant v. James B. GALLOWAY, Appellee.
    No. 2012-BD-01422-SCT.
    Supreme Court of Mississippi.
    Jan. 29, 2013.
   EN BANC ORDER

MICHAEL K. RANDOLPH, Justice,

for the Court.

¶ 1. This matter is before the Court en banc on the “Joint Petition to Accept Irrevocable Resignation” filed by the Mississippi Bar and James B. Galloway. In their Joint Petition, the Mississippi Bar and Galloway request that this Court accept the irrevocable resignation of James B. Galloway, who previously executed a Notice of Irrevocable Resignation pursuant to Mississippi Rule of Discipline 10.5, and to enter an order of disbarment.

¶ 2. James B. Galloway executed a Notice of Irrevocable Resignation on August 20, 2012, and delivered it to the Mississippi Bar on August 23, 2012. In the Notice, Galloway attested that an outstanding disciplinary matter (Docket No. 12-014-1) was currently pending before the Committee on Professional Responsibility, that no other disciplinary proceedings were pending against him, and that he did not desire to defend the matter. Galloway requested that he be allowed to resign irrevocably, with prejudice, from the Mississippi Bar. The Bar and Galloway jointly filed the current petition, requesting that this Court accept Galloway’s irrevocable resignation.

¶ 3. “This Court has ‘exclusive jurisdiction and inherent jurisdiction of matters pertaining to attorney discipline.’ ” McIntyre v. Mississippi Bar, 38 So.3d 617, 622 (Miss.2010) (citation omitted). “ ‘We conduct a de novo review in cases involving the discipline of attorneys.’ ” Mississippi Bar v. Peters, 22 So.3d 266, 267 (Miss.2009) (citation omitted).

¶ 4. Mississippi Rule of Discipline 10.5 provides that:

An attorney may tender an irrevocable resignation to either the Court or the Tribunal. Such a resignation shall acknowledge each and all disciplinary matters then pending, provide the docket number or numbers, state that the attorney does not desire to defend, and request permission to resign with prejudice from the Bar. Upon receipt of such a resignation, and any response that the Bar may elect to file, the disciplinary proceedings shall terminate and either the Court or the Tribunal shall enter its order accepting the resignation, revoking the attorney’s license, and barring forever thereafter the attorney’s right to seek reinstatement to the privilege of practicing law in this state. Such a resignation and order shall be considered disciplinary action, and the resignation shall be considered tantamount to the proof of guilt on the matter charged.

Miss. R. Disc. 10.5.

¶ 5. After due consideration, we find that James B. Galloway has properly filed his Notice of Irrevocable Resignation in accordance with Mississippi Rule of Discipline 10.5. Based on the record before us, and consistent with the Rules of Discipline for the Mississippi Bar and our caselaw, this Court finds that James B. Galloway should be disbarred permanently.

¶ 6. IT IS, THEREFORE ORDERED, ADJUDGED, and DECREED that:

1.James B. Galloway is hereby permanently DISBARRED from the practice of law in the State of Mississippi;
2. This order shall constitute notice of permanent disbarment in this cause;
3. The Clerk of this Court shall forward an attested copy of this order to James B. Galloway and the Executive Director of the Mississippi Bar;
4. James B. Galloway shall, within thirty days following entry of this order, notify clients and affected courts of his disbarment, properly disburse all funds he may hold in trust, and comply with all other requirements applicable to disbarred attorneys pursuant to Mississippi Rule of Discipline 11;
5. James B. Galloway shall, within forty-five days following entry of this order, file an affidavit with this Court stating that all of his clients have been notified of his disbarment and his consequent inability to practice law in Mississippi, and that he has complied fully with all the requirements set forth in Mississippi Rule of Discipline 11;
6. The Clerk of this Court likewise shall immediately forward an attested copy of this order to the circuit court judges and chancellors in and for Madison County, Mississippi, and the senior judge of each court shall enter this order upon the minutes of his or her respective court;
7. The Clerk of this Court shall immediately forward an attested copy of this order to the Clerks of the United States District Courts for the Northern and Southern Districts of Mississippi, the Clerk of the United States Court of Appeals for the Fifth Circuit, and the Clerk of the Supreme Court of the United States;
8. All outstanding disciplinary proceedings against James B. Galloway, including Cause No. 2012-BD-1422 (Docket No. 12-041-1, pending before the Committee on Professional Responsibility), are hereby terminated; and
9. Costs of these proceedings are hereby assessed against James B. Galloway.

¶ 7. SO ORDERED, ADJUDGED, AND DECREED.

DICKINSON, P.J., NOT PARTICIPATING.


author: CHANDLER, Justice, for the Court:

text:
    David Javarious Jamison RENFRO a/k/a David J.J. Renfro a/k/a David Renfro a/k/a David Javarious Renfro a/k/a David James Renfrow a/k/a Jamie Renfro v. STATE of Mississippi.
    No. 2012-KA-00643-SCT.
    Supreme Court of Mississippi.
    April 11, 2013.
    Rehearing Dismissed Aug. 1, 2013.

      Office of Indigent appeals by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before DICKINSON, P.J., LAMAR and CHANDLER, JJ.
   CHANDLER, Justice, for the Court:

¶ 1. Appellant David Javarious Jamison “Jamie” Renfro was convicted in the Circuit Court of Lincoln County of armed robbery under Mississippi Code Section 97-3-79. Andra Roundtree testified that Renfro entered Roundtree’s trailer home on March 21, 2011, and robbed Roundtree at gunpoint. A second eyewitness corroborated most of Roundtree’s testimony. The jury returned a unanimous guilty verdict, and Renfro was sentenced to twenty years in prison, with five years suspended. On appeal, Renfro argues that the verdict was contrary to the overwhelming weight of the evidence, and therefore, he is entitled to a new trial. Because we find that it is well-supported by the weight of the evidence, we uphold the jury’s verdict.

FACTS

¶,2. Only five witnesses testified at trial, two of which, Andra Roundtree and Jeremy MeCullom, were present during the robbery. A third eyewitness, Tonia Daniels, was unable to testify at trial. Renfro chose not to testify.

¶ 3. At approximately 11:00 p.m. on March 21, 2011, Andra Roundtree and Jeremy McCollum were inside Roundtree’s trailer home located at 401 Industrial Park in Brookhaven, Mississippi. McCollum testified he was there to buy illegal liquor from a man he identified at trial as Round-tree but knew only by the name of “Mon” at the time. Roundtree testified that a man known to him only as “Jay” was present at the time. Roundtree testified that Renfro entered the house through the front door and was “pulling a hood down over his head trying to hide his face, and he was holding a gun,” but Roundtree could still see Renfro’s face “very well.” McCollum also testified that Renfro came into the home and told Roundtree to get down, but that Renfro had only some object in his hand. When Renfro entered, McCollum placed his hands up, stood against the wall, and remained quiet.

¶ 4. Renfro told Roundtree to “give it up,” but at first, Roundtree thought he was just playing. Renfro walked through the living room to the kitchen where Roundtree was sitting, placed a gun to the back of Roundtree’s head, and said “Bitch, I’m not playing.” A fourth person, Tonia Daniels, then entered the home. Renfro told her to get on the floor, but when Daniels told him she was phsyically unable to get on the floor, he told her to sit on the couch. At this point, McCollum ran out of the house.

¶ 5. Renfro continued to demand that Roundtree “give it up,” which Roundtree understood to mean he wanted money. Eventually, Renfro allowed Roundtree to stand up and walk into the living room, where Renfro stood, holding the gun in front of Roundtree. Renfro finally asked, “Where is the money?” He then grabbed Roundtree’s backpack and .380 caliber handgun that were lying on the couch before backing out the front door and leaving the house. Roundtree testified that the gun Renfro took was the only gun Round-tree owned.

¶ 6. A neighbor, who did not testify, called the police at approximately 11:01 p.m., and Officer Fred Perkins arrived at the home within ten minutes. He testified that he met Roundtree standing outside the home appearing erratic, nervous, and flustered, and that he was talking fast, trying to explain what had happened. Renfro was no longer at the scene, and there were no signs of any struggle or disarray related to the robbery. Investigators took no pictures or fingerprints and gathered no physical evidence, and neither Renfro’s gun, the backpack, nor Round-tree’s gun were ever recovered. Officer Perkins testified that Roundtree “made an identification” to him that night and that Daniels was the only other person at the scene.

¶ 7. The next day, Roundtree filled out a statement naming Renfro as the perpetrator. The statement was admitted at trial and read:

David James Renfrow (Aka — Jamie) entered my house last night pointing a gun and asking where was the money. He got behind me while [I] was sitting down and put a gun to the back of my head and told me to give it up. My friend Tonya come in at that time and he told her to get on the floor. Neither of us got on the floor he got nervous grabbed my gun and backed out of the house.

Although Roundtree testified that he knew Renfro only as “Jamie,” he clarified under cross-examination that he had learned Renfro’s full name from Renfro’s father. Officer Perkins testified that Daniels had told Roundtree that Renfro’s first name was David. Roundtree also testified that this statement was “a rushed statement” given to the police “in less than ten minutes” and that some details, like Renfro pulling a hood over his head, were left out. His statement did not mention Jay being in the house because he “didn’t think this statement would be the case.” He expected the police to ask him more questions about the incident, but no one did until he was asked to testify at the trial.

¶ 8. Andra Roundtree was the only witness who testified to Renfro possessing a gun and stealing his property. Roundtree testified that he had known Renfro for about four years at the time of the trial, and that Renfro used to live next door to him in Renfro’s aunt’s trailer. At the time of the robbery, Roundtree was the lot manager for the trailer park, and he often kept rent money in his house. Renfro may have known this, because Roundtree had told him that he collected the rent when Renfro had asked him for a job at the trailer park. Roundtree also testified that he suffers from paranoid schizophrenia and another mental diagnosis. At the time of the robbery, he had been seeing a therapist twice a month but had not been prescribed any medications for his conditions. He has since been placed on medication for his paranoid schizophrenia.

¶ 9. Jeremy McCollum was questioned about his statements to a police investigator, Truett Simmons, to whom McCollum spoke a week before the trial. McCollum testified that he told Simmons that Renfro “came in with something,” but when Simmons asked McCollum if it was a gun, he told Simmons he did not know what it was. McCollum testified that he never saw a gun, and that he was “too scared to try to figure out” what the object in Renfro’s hand was. He maintained that he did not tell the investigator that Renfro had a gun, and that he never did see a gun while he was in the home.

¶ 10. The jury was not informed that, the day after the robbery, Roundtree allegedly shot and injured a person standing in close vicinity to Renfro as Roundtree was returning home from filing his statement at the police station. Roundtree was indicted for aggravated assault in relation to this incident. Because he invoked his Fifth Amendment right against self-incrimination, no testimony was presented about this event or the indictment.

¶ 11. The jury returned a unanimous guilty verdict but did not recommend life imprisonment. The trial court denied Renfro’s motion for a new trial and sentenced him to twenty years in prison with five years suspended. Renfro’s only issue on appeal is whether the trial court abused its discretion in denying his motion for a new trial because the verdict was contrary to the overwhelming weight of the evidence.

DISCUSSION

¶ 12. Renfro argues generally that the testimony presented at trial was “at best, unreliable, inconclusive and unsupportive of the conviction to the extent that a miscarriage of justice has occurred.” Specifically, he argues that police conducted little to no investigation and that Roundtree gave incomplete or misleading statements to the police. He also points to the discrepancy between Roundtree’s and McCol-lum’s testimony, where McCollum testified that he did not see a gun. Finally, he notes Roundtree’s paranoid schizophrenia and argues that the jury was unable fully to assess Roundtree’s credibility because it did not hear evidence that Roundtree was under indictment for shooting a gun at Renfro the day after the robbery. The State argues that there was substantial, credible evidence allowing the jury to convict Renfro.

¶ 13. A trial court’s denial of a motion for a new trial will be overturned only if the trial court abused its discretion by denying the motion. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). We have stated that a new trial should be granted only when the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (Miss.2005). “[0]nly in exceptional cases in which the evidence preponderates heavily against the verdict” should a court exercise its discretion to grant a new trial. Id. (quoting Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000)). Moreover, we must weigh the evidence in a light most favorable to the verdict. Bush, 895 So.2d at 844. Even if we find that the verdict is against the overwhelming weight of the evidence, Renfro’s remedy is a new trial and not acquittal. Id.

¶ 14. We have overturned verdicts in cases in which we found “the first jury’s determination of guilt to be based on extremely weak or tenuous evidence!,] even where that evidence is sufficient to withstand a motion for a directed verdict.” Dilworth v. State, 909 So.2d 731, 737 (Miss.2005) (quoting Lambert v. State, 462 So.2d 308, 322 (Miss.1984) (Lee, J., dissenting)). We also have granted new trials in cases where the evidence was “so ‘extremely doubtful that it [was] repulsive to the reasoning of the ordinary mind.’ ” Dilworth, 909 So.2d at 738 (quoting Thomas v. State, 129 Miss. 332, 92 So. 225, 226 (1922)). However, weighing the credibility of witnesses is the exclusive province of the jury. Glidden v. State, 74 So.3d 342, 349 (Miss.2011). The “jury is the sole judge of the weight of the evidence and the credibility of the witnesses,” and jurors may choose to believe one witness over another. Ewing v. State, 45 So.3d 652, 655 (Miss.2010) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)). Moreover, the jury is “permitted to draw such reasonable inferences from the evidence” as it deems justified by the light of its own experience. Glidden, 74 So.3d at 349.

¶ 15. Renfro was convicted of armed robbery under Mississippi Code Section 97-3-79, which required the State to prove that Renfro “feloniously [took] or attempted] to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.” Miss.Code Ann. § 97-3-79 (Rev.2006). Therefore, the jury had to decide two fact questions: (1) did Renfro take or attempt to take personal property from Roundtree, and (2) did Renfro place Roundtree in fear of immediate injury to his person by exhibiting a deadly weapon?

A. Was the jury’s finding that Ren-fro took or attempted to take Roundtree’s personal property contrary to the overwhelming weight of the evidence?

¶ 16. Ultimately, the State produced only one witness, Andra Roundtree, who was able to testify that Renfro stole the gun and the backpack from the presence of Roundtree. While neither the gun nor the backpack was ever recovered, no witness testified that Renfro did not steal these items. Although McCollum left the house before Renfro grabbed these items and left, McCollum was able to testify to Renfro’s presence in the house and his demands that Roundtree and Daniels get on the floor. While McCollum did not actually testify that he heard Renfro demand money or tell Roundtree to “give it up,” a reasonable inference from Renfro’s demand that Roundtree and Daniels get on the floor is that Renfro was attempting to rob them.

¶ 17. The jury also was entitled to believe Renfro’s testimony that Roundtree stole his .380 caliber pistol and backpack. Roundtree’s testimony that Renfro demanded money is consistent with his testimony that he was the rent collector for the trailer park at the time of the robbery, and that Renfro knew he kept large amounts of money in his trailer. The jury was entitled to draw a reasonable inference that Renfro had a motive to rob Roundtree and that he was attempting to take money from Roundtree.

¶ 18. The jury was informed that Roundtree had been diagnosed as a paranoid schizophrenic, and it was entitled to determine that Roundtree was still a truthful witness in spite of this fact. Viewing the evidence in a light most favorable to the verdict, the overwhelming weight of the evidence does not contradict the jury’s finding that Renfro stole Roundtree’s gun and backpack.

B. Was the jury’s finding that Ren-fro placed Roundtree in fear of immediate injury to his person by exhibiting a deadly weapon contrary to the overwhelming weight of the evidence?

¶ 19. The State presented uncon-tradicted testimony from both Roundtree and McCollum that Renfro entered the home and demanded that Roundtree get on the floor. While Roundtree did not state at trial that Renfro told him to get on the floor, he did indicate this in his written statement to the police. Roundtree further testified that Renfro placed a gun to the back of his head and later stood in front of Roundtree and pointed a gun where Roundtree could see it.

¶ 20. While McCollum testified that he did not see a gun, he did testify that Renfro entered the home carrying an object and that he made demands that frightened McCollum to the point where he raised his hands and eventually fled the trailer. The jury was entitled to draw an inference that whatever object Renfro carried, it was sufficient to place Roundtree in fear of immediate injury. The jury also was entitled to believe Roundtree’s testimony that it was, in fact, a gun that Ren-fro held to his head. Officer Perkins testified that Roundtree was nervous, erratic, flustered, and talking fast in a high-pitched voice when Perkins arrived at Roundtree’s trailer home less than ten minutes after the robbery. The jury was entitled to infer that this state of mind was consistent with that of a person who had just had a gun placed to his head.

¶ 21. Viewing all of this evidence in the light most favorable to the verdict, the jury’s finding that Renfro used a gun to place Roundtree in fear of imminent bodily injury was not against the overwhelming weight of the evidence.

¶ 22. We previously have stated that “[t]he testimony of a single uncorroborated witness is sufficient to sustain a conviction,” and this Court will allow a verdict to stand upon such evidence “even though there may be more than one person testifying to the contrary.” Williams v. State, 512 So.2d 666, 670 (Miss.1987). While the State relied heavily on Round-tree’s testimony, there is no evidence directly contradicting Roundtree’s eyewitness account. Everything that Roundtree testified to or reported to the police regarding the time while McCollum was present was corroborated by McCollum’s testimony, with the exception of McCol-lum’s uncertainty as to whether Renfro had a gun. Even that is not enough to require a new trial, as “inconsistencies in witnesses’ testimony do not require the jury to reject the entire testimony” of a witness. Duncan v. State, 939 So.2d 772, 782 (Miss.2006). The jury was entitled to believe, in spite of McCollum’s uncertain testimony, that Renfro carried a gun and used it to place Roundtree in fear of imminent injury, and that he stole Roundtree’s personal property.

C. Roundtree’s aggravated assault indictment

¶ 23. Renfro also argues that the jury had incomplete information because Roundtree’s Fifth Amendment right against self-incrimination protected him from cross-examination regarding his aggravated-assault indictment. Renfro argues this evidence would have impeached Roundtree’s testimony that Renfro stole the only gun Roundtree owned. He also argues this evidence shows bias and a motive to lie and generally damages Roundtree’s credibility. For instance, if Renfro had a felony conviction, Roundtree might use that conviction to discredit Ren-fro’s testimony against him in his aggravated-assault case. However, Renfro does not assign any error to the trial court for excluding this evidence, acknowledging in his brief that his own “Sixth Amendment right to cross-examine Roundtree about the shooting incident had to yield to Roundtree’s invocation of his Fifth Amendment right not to incriminate himself.” Renfro is correct that this testimony was rightly excluded. United States v. Hernandez, 962 F.2d 1152, 1161 (5th Cir.1992) (holding that “a defendant’s Sixth Amendment right of compulsory process to obtain witnesses in his favor must yield to a witness’s Fifth Amendment privilege against self-incrimination.”)).

¶ 24. While it is possible that the jury might have disbelieved Roundtree had it heard this evidence, this evidence in and of itself does not preponderate so heavily against the verdict that Renfro is entitled to a new trial. While this information raises questions as to Roundtree’s character and credibility, it does not contradict his testimony. The State points out in its brief that, rather than exonerating Renfro, this evidence could have shown that Roundtree was angry at Renfro for robbing him at gunpoint. Therefore, even if this evidence had been before the jury, there still would be no basis for a new trial, because we must view all evidence in a light most favorable to the verdict. Moreover, Renfro cites no authority holding that excluded evidence necessitates a new trial where the trial court committed no error in excluding that evidence. This argument is without merit.

CONCLUSION

¶ 25. The verdict is not contrary to the overwhelming weight of the evidence. Rather, there is no evidence tending to exonerate Renfro. The evidence used to convict Renfro was neither extremely weak, tenuous, nor doubtful, and the jury’s verdict is not an unconscionable injustice. The denial of Renfro’s motion for new trial was well within the circuit court’s discretion. The verdict and sentence are affirmed.

¶ 26. CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE (5) YEARS SUSPENDED, AND FIFTEEN (15) YEARS TO SERVE, AFFIRMED. APPELLANT SHALL PAY COURT COSTS OF $411.00, A FINE OF $3,000.00 AND FULL RESTITUTION.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ., CONCUR.


author: /s/ Jess H. Dickinson ■ JESS H. DICKINSON, PRESIDING JUSTICE RANDOLPH, Presiding Justice,

text:
    Re: Ray Charles SPIVEY.
    No. 2012-M-01701.
    Supreme Court of Mississippi.
    May 14, 2013.
   EN BANC ORDER

This matter comes before the Court sitting en banc on the Motion for Reconsideration/Rehearing filed by Ray Charles Spi-vey. On November 28, 2011, the Circuit Court of Scott County dismissed Spivey’s action due to excessive filings. The court enjoined Spivey from filing — and the Scott County Circuit Clerk’s office from aecept-ing — any further filings in this action. Spivey filed a motion for relief in this Court, which was denied.

Spivey then filed a motion to reconsider, and we ordered the circuit court to provide us with “the authority which allows the Scott County Circuit Court to enjoin Petitioner from further filings in cause no. 08-CV-018-SC-C.” The circuit judge responded that his authority to prohibit Spi-vey from any future filings in the case was based on his authority and duty to manage the court’s docket.

Section 24 of our Constitution says that our courts belong to — and must remain open for — the people. And Section 25 could not be more clear: “No person shall be debarred from prosecuting or defending any civil cause.” Although the trial judge correctly concluded that trial judges have a right — indeed a duty — to control their courts’ dockets, that duty must be balanced against the constitutional right granted by Section 25. Here, the judge barred Spivey from prosecuting his claim in the circuit court, in direct violation of Section 25.

IT IS THEREFORE ORDERED that the Motion for Reconsideration/Rehearing filed by Ray Charles Spivey is granted.

IT IS FURTHER ORDERED that all language in the “Order Dismissing and Preventing the Acceptance of Further Filings” enjoining Spivey from filing, or the Scott County Circuit Clerk’s office from accepting, further filings in cause no. 08-CV-018-SC-C be struck.

SO ORDERED.

/s/ Jess H. Dickinson ■ JESS H. DICKINSON, PRESIDING JUSTICE

TO GRANT: DICKINSON, P.J., KITCHENS, CHANDLER, KING AND COLEMAN, JJ.

RANDOLPH, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY WALLER, C.J., LAMAR AND PIERCE, JJ.

RANDOLPH, Presiding Justice,

Objecting to the Order with Separate Written Statement.

¶ 1. I would concur with today’s order had Ray Charles Spivey timely sought relief. His Motion to Precede [sic] was filed on October 15, 2012, approximately ten and a half months after entry of the order from which he seeks relief. If Spivey had attempted to file timely a notice of appeal, as required by Mississippi Rules of Appellate Procedure 3 and 4, of the November 28, 2011, order, and if the circuit clerk had refused to file it, then consideration of a mandamus action might had been appropriate, at that time. M.R.A.P. 3, 4. However, under the record presented herein, the action was dismissed. No attempt to appeal the order was taken within the time prescribed by law. M.R.A.P 4. Thus I would deny his Motion to Precede [sic].

WALLER, C.J., LAMAR AND PIERCE, JJ., JOIN THIS SEPARATE WRITTEN STATEMENT.

      . Miss. Const, art. 3 § 24 ("All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.”)

      . Miss. Const, art. 3 § 25.

      . Or even if Spivey mistakenly filed his notice of appeal in this Court. See M.R.A.P. 4(a).


author: /s/ Jess H. Dickinson JESS H. DICKINSON, PRESIDING JUSTICE PIERCE, Justice,

text:
    Marcus WALLACE v. ELECTION COMMISSION OF the TOWN OF EDWARDS, Mississippi.
    No. 2013-EC-00699-SCT.
    Supreme Court of Mississippi.
    May 16, 2013.
   EN BANC ORDER

Marcus L. Wallace presented to the City Clerk of the Town of Edwards, a Qualifying Statement of Intent, purporting to contain the names of a sufficient number of qualified electors to have his name placed on the ballot as an independent candidate for mayor of the City of Edwards. On March 8, 2013, the Town of Edwards Election Commission (“Commission”) informed Wallace by letter that his Statement of Intent “did not meet the required signatures.”

On March 18, 2013, the Commission met with Wallace and his counsel and accepted more of the names on Wallace’s qualifying papers, but the total number remained insufficient to have his name placed on the ballot.

On March 27, 2013, Wallace filed with the Commission a petition to have his name placed on the ballot, claiming there were eighteen names on his Qualifying Statement that the Commission had improperly rejected. Because the Commission did not act on his petition, Wallace filed an Emergency Complaint for Writ of Mandamus with the Circuit Court of the Second Judicial District of Hinds County. He asked the court to “act on [his] Petition” and to “issue a Writ of Mandamus to the Election Commission to forthwith convene a hearing on the Petition to place Marcus L. Wallace on Ballot as an Independent Candidate for Mayor of the Town of Edwards.... ” Before us today is Wallace’s appeal of the circuit court’s denial of his petition for a writ of mandamus.

We find that this case is controlled by our decision in Meeks v. Tallahatchie County, wherein we held that when a candidate

files the proper qualifying papers and pays the requisite filing fee to become a candidate for public office, neither the state nor, in the case of a primary election, a political party may arbitrarily or capriciously deprive him or her of a place on the ballot

We went further to state that the candidate

was entitled to due process protection on two levels. First, he was entitled to the opportunity to be heard. Second, he was entitled that his name not be finally stricken from the ballot except that result be required by law.
Incident to the conduct of a party primary election, a political party’s county executive committee is required, upon the expiration of the qualifying deadline, to review the papers of all who have offered as candidates for the party nomination and decide in each instance whether the individual is qualified to run for the office. No advance notice and opportunity to be heard is required before that meeting. Where the executive committee decides that a person is not eligible, however, and where that person wishes to be heard regarding the matter, the executive committee, as a matter of due process, is required to allow the disqualified candidate a reasonable opportunitg to present his case.

While Meeks addressed issues before a political party’s executive committee, and not an election commission, we find the principles quoted above are the same. We hold that the circuit court erred in failing to grant Wallace’s petition for mandamus, and we reverse the circuit court’s judgment and remand this case with instructions to the circuit court to grant Wallace’s petition for mandamus.

We further find that, under this Court’s authority to suspend the rules, and in light of imminent ballot printing deadlines, no motion for rehearing will be allowed and this Order shall be deemed final in all respects. We direct that the mandate in this matter shall immediately issue. The Appellee is taxed with all costs of this appeal.

SO ORDERED.

/s/ Jess H. Dickinson JESS H. DICKINSON, PRESIDING JUSTICE

AGREE: DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, KING AND COLEMAN, JJ.

PIERCE, J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY WALLER, C.J., AND CHANDLER, J.

PIERCE, Justice,

Objecting to the Order with Separate Written Statement:

¶ 1. The majority finds that Marcus Wallace’s due-process rights were violated by the Edwards Election Commission’s refusal to give him a second hearing. With all due respect, I disagree.

¶2. First, in the petition Wallace filed with the commission, he never asked for another hearing. Yet he now faults the commission for not giving him a hearing he didn’t request.

¶ 3. Second, Wallace was in fact given a reasonable opportunity to be heard. The hearing required by Meeks v. Tallahatchie County, 513 So.2d 563 (Miss.1987), was held on March 18. At Wallace’s request, the election commission met with Wallace and his two attorneys. The commission reviewed the signatures that had been previously invalidated. They also consulted with a contact in the Secretary of State’s office. There is no indication that the commission refused to allow Wallace to present his case completely. After that hearing, the commission determined that several of the names submitted by Wallace were in fact proper and those signatures were added to the ones previously validated. Hence, I would find that Wallace was given ample opportunity to be heard on his claims and that no due-process violation occurred.

¶ 4. Third, even if Wallace had been due a second hearing, his remedy was to appeal from the commission’s decision pursuant to Mississippi Code Section 11-51-75. Town of Terry v. Smith, 48 So.3d 507 (Miss.2010). Wallace failed to perfect an appeal and chose to attempt to proceed by mandamus. This was clearly improper. See Hinds County Democratic Executive Committee v. Muirhead, 259 So.2d 692 (Miss.1972) (the trial court erred in issuing mandamus at the time the appellee had a statutory right to appeal). Mandamus was properly denied here.

¶ 5. I disagree with Wallace’s claim that he is due another hearing on his written petition and that he should be given another opportunity to prove the validity of the signatures he submitted. I would affirm the trial judge.

WALLER, C.J., AND CHANDLER, J., JOIN THIS SEPARATE WRITTEN STATEMENT.

      . Meeks v. Tallahatchie County, 513 So.2d 563, 565 (Miss.1987).

      . Id. (emphasis added).

      . Miss. R.App. P. 2(c).