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

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Solomon C. OSBORNE.
    No. 2008-JP-00454-SCT.
    Supreme Court of Mississippi.
    June 18, 2009.

      Luther T. Brantley, III, Darlene D. Ballard, attorneys for appellant.
    Leonard McClellan, Jackson, attorney for appellee.-
   ON MOTIONS FOR REHEARING

CARLSON, Presiding Justice,

for the Court.

¶ 1. The motion for rehearing filed by Solomon C. Osborne is denied. However, the motion for rehearing filed by the Mississippi Commission on Judicial Performance is granted, in part. Thus, the original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. In this judicial-discipline case, the Mississippi Commission on Judicial Performance (“the Commission”) recommends to this Court that, based on his judicial misconduct, Solomon Osborne, former County Court Judge for Leflore County, should be removed from office, restrained from ever seeking judicial office again, and assessed with costs of this proceeding.

FACTS AND PROCEEDINGS BEFORE THE COMMISSION

¶ 3. On September 13, 2006, while campaigning for reelection as a county court judge for Leflore County, Judge Solomon C. Osborne spoke before the Greenwood Voters League, a predominantly African-American political organization. Portions of his speech appeared the next day in the local newspaper, The Greenwood Commonwealth. In an article entitled: “Osborne: Blacks not where we should be. County judge says progress has been made, more is needed,” the newspaper quoted Judge Osborne as stating:

White folks don’t praise you unless you’re a damn fool. Unless they think they can use you. If you have your own mind and know what you’re doing, they don’t want you around.

¶ 4. Forty-eight complaints were filed with the Commission regarding Judge Osborne’s comments. On February 12, 2007, the Commission filed a formal complaint against Judge Osborne, alleging willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute, thus causing such conduct to be actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution of 1890, as amended.

¶ 5. Judge Osborne, acting as his own attorney, answered the complaint and denied making the statements attributed to him by The Greemvood Commonwealth. He moved the Commission to dismiss the complaint on the basis that its charge violated the First and Fourteenth Amendments of the United States Constitution and comparable provisions of the Mississippi Constitution, averring further that the Commission’s complaint was politically and racially motivated.

¶ 6. The Commission referred the matter to a duly-constituted committee, which held a formal hearing. Both parties agreed to dispense with an evidentiary hearing on the facts, allowing instead an agreed statement of the facts to be entered into evidence for a review, finding, and proposed recommendation. The committee concluded the following:

[T]his Tribunal is convinced by clear and convincing evidence that Judge Solomon C. Osborne, has violated the following Canons, Statute, and Section 177A of the Mississippi Constitution of 1890, as amended, to-wit:
Canon 1. By making a public inflammatory, derogatory statement about all people of the White race, thereby eroding public confidence in the integrity and independence of his Court. Canon 2.(A) <& (B) By making a public spectacle of himself and thereby demeaning the prestige of his office. Canon 3.(B)(5) By publicly announcing manifest bias and prejudice based on race.
Canon 5.(A)(1)(a) By maintaining membership in, attending meetings, and promoting the agenda of a political organization.
Statute: Section 97-9-59 Mississippi Code, 1972, Ann. (Perjury) By making an oath to an untrue, false and improper statement when Solomon C. Osborne knew his statement was untrue and false.
Section 177A of the Mississippi Constitution of 1890. By conducting himself in a way which constitutes wilful misconduct in office and conduct which is prejudicial to the administration of justice, bringing his judicial office into disrepute.

¶ 7. The committee filed its findings of fact, conclusions of law, and recommendation with the Commission on February 15, 2008. The Commission accepted and adopted the Committee’s recommendation and thereafter entered its findings of facts, conclusions of law, and recommendation on March 18, 2008. The Commission found that Judge Osborne’s behavior violated Canons 1, 2(A), 2(B), 3(B)(5), and 5(A)(1)(a) of the Mississippi Code of Judicial Conduct, and Section 97-9-59 of the Mississippi Code of 1972, Annotated. The Commission has recommended to this Court that Judge Osborne be removed from office, restrained from ever seeking judicial office again, and assessed with costs of this proceeding in the amount of $731.89.

DISCUSSION

¶ 8. Judicial misconduct proceedings are reviewed de novo, giving considerable deference to the findings, based on clear and convincing evidence, of the recommendations of the Commission. Miss. Comm’n on Judicial Performance v. Bo land, 975 So.2d 882, 888 (Miss.2008) (Boland, I) (citing Miss. Comm’n on Judicial Performance v. Boykin, 763 So.2d 872, 874 (Miss.2000)). This Court, however, is obligated to conduct an independent inquiry. Id. (citing Miss. Comm’n on Judicial Performance v. Neal, 774 So.2d 414, 416 (Miss.2000)). Though the Commission’s findings are considered, this Court is not bound by its findings. Miss. Comm’n on Judicial Performance v. Whitten, 687 So.2d 744, 746 (Miss.1997).

I.

¶ 9. The role of the judiciary is central to the concept of justice and the rule of law. The Mississippi Code of Judicial Conduct, through its canons, was established to help ensure the public’s trust and confidence in the state’s judicial system, and to provide guidance to judges in maintaining the principal standards of judicial conduct both on and off the bench. This Court is vested with the authority to discipline any judicial officer for violation of a judicial canon. Miss. Const. art. 6, § 177A. Enforcement of the canons is essential to the purpose they serve.

¶ 10. Judge Osborne claims First Amendment protection for his speech and for his attendance before the Greenwood Voter’s League. He challenges the constitutionality of the Commission’s recommendation that he be punished.

¶ 11. The Commission responds, arguing that the racial overtones of Judge Osborne’s comments cast doubt on his integrity, independence, and ability to be fair and impartial in all matters that come before his court. The Commission asserts that application of the judicial canons in this case is narrowly tailored to serve a compelling state interest, thus Judge Osborne’s conduct does not enjoy First Amendment protection.

A. Political organization

¶ 12. Beginning with the Commission’s finding that Judge Osborne violated Canon 5(A)(1)(a) by maintaining membership in, attending meetings of, and promoting the agenda of a political organization, we need not address Judge Osborne’s constitutional argument. Based on the record before us, Judge Osborne’s attendance before the Greenwood Voters League did not violate section 5(A)(1)(a), or any other section of the canons. Canon 5(A)(1) reads in full, as follows:

Except as authorized in Sections 5B(2), 5C(1) and 5C(2), a judge or candidate for election to judicial office shall not:
(a) act as a leader or hold an office in a political organization;
(b) make speeches for a political organization or candidate or publicly endorse a candidate for public office;
(c) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other political functions.

(Emphasis added.)

¶ 13. The Commission’s finding rests solely on what transpired during rebuttal at the formal hearing for this matter. A committee member queried counsel for Judge Osborne about the Greenwood Voters League. The attorney explained he thought it could be fairly characterized as a non-dues, political organization that meets weekly. When the committee member asked how one becomes a member, the attorney responded, “Just by attending a meeting.” The committee member then asked if Judge Osborne therefore was a member. The attorney said, “Yes.” No further questions were asked about the Voters League.

¶ 14. The Commission has misinterpreted and misapplied Canon 5. The canon does not prohibit membership “per se” in a political organization. Rather, as denoted by section 5A(1) and its subsections, the canon prohibits judicial incumbents and judicial candidates alike from engaging in certain inappropriate political activity normally associated with such organizations. See also sections 5B(2), 5C(1), 5C(2) and 5D.

¶ 15. There is no evidence in the record that Judge Osborne acted as a leader for, or held an office in, the Greenwood Voters League, in violation of section 5A(1)(a). Likewise, there is no indication that Judge Osborne was making a speech on behalf of the Voters League, as prohibited by section 5A(1)(b). Additionally, although Judge Osborne admittedly attended political gathering, ordinarily a violation under 5A(1)(c), the record evinces only that he was there as a judicial candidate running for reelection. Section 5C(1) expressly permits incumbent judges to attend and speak to political gatherings on their own behalf while candidates for election or reelection.

B. Political speech

¶ 16. The subject of Judge Osborne’s inflammatory statements was his criticism of a Caucasian mayor’s appointment of two local African-Americans to the Greenwood Election Commission. While these statements admittedly were made by Judge Osborne during a year when he was campaigning for reelection as the incumbent county court judge, we do not find that these invidious statements constitute protected political speech under the First Amendment of the United States Constitution, or Article 3, Section 13 of the Mississippi Constitution of 1890, as amended.

¶ 17. The United States Supreme Court addressed the issue of protected political speech in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002). White stands for the proposition that in states which choose to elect their judges and which have judicial canons prohibiting judicial candidates “from announcing their views on disputed legal and political issues” such canons violate the First Amendment. White, 536 U.S. at 788, 122 S.Ct. 2528. In White, the Court had before it a factual scenario in which a candidate for associate justice of the Minnesota Supreme Court “distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare and abortion.” Id. at 768, 122 S.Ct. 2528. In discussing the procedural history of this case, the Court noted that the Eighth Circuit Court of Appeals recognized that “the announce clause both prohibits speech on the basis of its content and burdens a category of speech that is ‘at the core of our First Amendment freedoms’ — speech about the qualifications of candidates for public office.” Id. at 774, 122 S.Ct. 2528 (citing Republican Party v. Kelly, 247 F.3d 854, 861, 863 (8th Cir. 2001)).

¶ 18. Traditionally, this Court, in assessing whether speech by a member of the judiciary is protected political speech, has applied the two-prong test promulgated in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Applying the Pickering test, a reviewing court looks to whether, in light of the content, form, and context of the speech at issue, the speech addresses a matter of legitimate public concern. Miss. Comm’n on Judicial Performance v. Boland, 975 So.2d 882, 891 (Miss.2008) (citing Scott v. Flowers, 910 F.2d 201, 210 (5th Cir.1990)). If the speech is not deemed to be a matter of legitimate public concern, the inquiry ends, otherwise, the next step of the inquiry is to balance the First Amendment rights of the public employee against the government’s interest. Boland I, 975 So.2d at 891.

¶ 19. In Boland I, this Court found that Judge Boland was not engaging in political speech when she remarked on the ignorance of members of the Hinds County Board of Supervisors, criticized the educational background and demeanor of justice court judges, told a participant to “get the hell out” of the room, and remarked that her African-American constituents in Hinds County could “go to hell.” Id. In applying the two-prong Pickering test, this Court held “[sjince Judge Boland’s comment was not made within the content, form or context of a matter of legitimate public concern, no further analysis is necessary by this Court. Accordingly, we find that Judge Boland’s comment was not protected by the First Amendment.” Bo-land I, 975 So.2d at 892. In doing so, this Court distinguished Judge Boland from the judge in Mississippi Commission on Judicial Performance v. Wilkerson, 876 So.2d 1006 (Miss.2004). Boland I, 975 So.2d at 892. This Court made that distinction on the basis that the judge in Wilkerson wrote a letter to a newspaper that contained commentary on his religious views on homosexuality without ever identifying himself as a judge. Boland I, 975 So.2d at 892 (citing Wilkerson, 876 So.2d at 1008). “Without his permission, a radio show later aired a conversation Wilkerson had with a reporter concerning the letter.” Id. (citing Wilkerson, 876 So.2d at 1008).

¶ 20. We find today’s case comparable to the facts in Boland I inasmuch as Judge Osborne’s commentary on Caucasian officials and their African-American appointees in his jurisdiction is not worthy of being deemed a matter of legitimate political concern in his reelection campaign, but merely an expression of his personal animosity. Therefore, inasmuch as Judge Osborne’s comments “[were] not made within the content, form or context of a matter of legitimate public concern, no further analysis is necessary by this Court.” Boland I, 975 So.2d at 892. Likewise, this case is distinguishable from Wilkerson in that Judge Osborne was appearing at the meeting in his capacity as a judge-this was not a personal letter to the editor of his local paper. On the other hand, speaking before a group of his constituents, Judge Osborne no doubt expressed his disdain for the local Caucasian mayor and his African-American appointees in making his inflammatory remarks; however, he did not limit his remarks to commentary on the mayor and the mayor’s appointments. Judge Osborne went further:

White folks don’t praise you [African-Americans] unless you’re a damn fool. Unless they think they can use you. If you have your own mind and know what you’re doing, they don’t want you around.

As we found in Boland I, Judge Osborne’s comments “were disparaging insults and not matters of legitimate public concern.” Boland I, 975 So.2d at 892. Importantly, today’s case is distinguishable from White in that Judge Osborne’s disparaging insults went well beyond the realm of protected campaign speech expressing views on disputed legal and political issues and discussing the qualifications of the judicial office for which Judge Osborne was campaigning.

¶ 21. As a postscript on this issue, we direct our judges to the commentary under Canon 2 of the Mississippi Code of Judicial Conduct, which states in pertinent part:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be reviewed as burdensome by the ordinary citizen and should do so freely and willingly.

¶ 22. No one is compelled to serve as a judge, but once an individual offers himself or herself for service, that individual accepts the calling with full knowledge of certain limitations upon speech and actions in order to serve the greater good. A calling to public service is not without sacrifice, including the acceptance of limitations on constitutionally granted privileges. This principle is deeply rooted in many areas of government service. For example, members of the Armed Forces are limited in matters pertaining to outside employment. See 10 U.S.C. § 973(a) 1980. Likewise, some civil service employees are restricted from “actively participating] in political activity in any primary or election in a municipality where he is employed .... ” Miss.Code Ann. § 21-31-27 (Rev.2007). See also Miss.Code Ann. § 21-31-75 (Rev.2007).

¶ 23. In the end, we find that Judge Osborne’s disparaging remarks were not protected speech under either our federal or state constitution. Accordingly, we agree with the Commission’s findings that Judge Osborne’s remarks violated Canons 1, 2(A) & (B), and 3(B)(5), thus causing the judge’s conduct to be actionable under Section 177A of the Mississippi Constitution of 1890.

II.

¶ 24. The Commission asserts that, when confronted with the complaint alleging judicial misconduct for his inappropriate remarks, Judge Osborne, under oath, knowing that the allegations were true and that he had in fact said what was reported in the newspaper, purposely denied making the remarks. The Commission further asserts that, by entering into an agreed statement of the facts in lieu of an eviden-tiary hearing, Judge Osborne conceded that the remarks were made. The Commission, therefore, contends that Judge Osborne committed perjury in violation of Mississippi Code Annotated Section 97-9-59, which provides in pertinent part:

Every person who shall wilfully and corruptly swear, testify or affirm falsely to any material matter under oath, affirmation or declaration legally administered in any matter, cause or proceeding pending in any court of law or equity, or before any officer thereof, or in any case where an oath or affirmation is required by law or is necessary for the prosecution or defense of any private right or for the ends of public justice, or in any matter or proceeding before any tribunal or officer created by the Constitution or by law, or where any oath may be lawfully required by any judicial, executive, or administrative officer, shall be guilty of perjury....

Miss.Code Ann. § 97-9-59 (Rev.2006).

¶ 25. In Re Collins, quoting 83 C.J.S. Stipulations Section 25, held:

[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. 1987) (citing 83 C.J.S. Stipulations § 25 (1954)).

¶ 26. Lying under oath is an abuse of the judicial process which Judge Osborne was elected to uphold. Perjury is not a matter to be taken lightly, nor will it be tolerated by this Court. A proceeding before the Commission on Judicial Performance is no different from a trial and “[a] trial is a proceeding designed to be a search for the truth.” Sims v. ANR Freight System, Inc., 77 F.3d 846, 849 (5th Cir.1996). “When a party attempts to thwart such a search, the courts are obligated to ensure that such efforts are not only cut short, but that the penalty will be sufficiently severe to dissuade others from following suit.” Jones v. Jones, 995 So.2d 706, 711-12 (Miss.2008) (quoting Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990 (Miss.1999)).

¶ 27. The Commission on Judicial Performance contends to this Court that Judge Osborne committed perjury pursuant to Mississippi Code Section 97-9-59. However, the Commission never formally charged Osborne with perjury. A formal charge is inquired. A verdict without a formal complaint is no different from a criminal trial without an indictment. Therefore, in the absence of a formal complaint and a hearing on the merits, this Court lacks the authority to accept the finding of the Commission on the perjury count.

¶ 28. For the reasons stated, the Commission’s recommendation that Judge Osborne be sanctioned for committing perjury must be rejected.

III.

¶ 29. Having accepted and agreed with the Commission’s finding that Judge Osborne’s remarks were in violation of Canons 1, 2(A) & (B), 3(B)(5), thus causing such conduct to be actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi Constitution of 1890, as amended, we now turn to a discussion of appropriate sanctions.

¶ 30. In accordance with Section 177A of the Mississippi Constitution and Rule 10 of the Rules of the Commission on Judicial Performance, as interpreted by this Court, the Commission is charged with recommending disciplinary sanctions, and the Court, based upon a review of the entire record, must determine the appropriate sanction. In fact, in the end, this Court alone has the power to impose sanctions. Miss. Comm’n on Judicial Performance v. Osborne, 977 So.2d 314, 324 (Miss.2008) (citing In re Quick, 553 So.2d 522, 527 (Miss.1989)). The primary purpose of judicial sanctions is not punishment of the individual judge but “to restore and maintain the dignity and honor of the judicial office and to protect the public against future excesses.” Miss. Comm’n on Judicial Performance v. Guest, 717 So.2d 325, 329 (Miss.1998) (citing In re Harned, 357 N.W.2d 300, 302 (Iowa 1984)). The sanctions available to us when disciplining a judge include: (1) removal from office; (2) suspension from office; (3) fine; and (4) public censure or reprimand. Miss. Comm’n on Judicial Performance v. Osborne, 977 So.2d 314, 324 (Miss.2008), cf. Miss. Comm’n on Judicial Performance v. Teel, 863 So.2d 973, 975 (Miss.2004) (citing Miss. Const. art. 6, § 177A); Miss. Comm’n on Judicial Performance v. Walker, 565 So.2d 1117, 1128-32 (Miss.1990) (compiling list of judicial performance sanctions in Mississippi).

¶ 31. The appropriateness of sanctions is weighed based on the following factors, often referred to by this Court as the Gibson factors: (1) the length and character of the judge’s public service; (2) whether there is any prior case law on point; (3) the magnitude of the offense and the harm suffered; (4) whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) whether moral turpitude was involved; and (6) the presence or absence of mitigating or aggravating circumstances. Miss. Comm’n on Judicial Performance v. Gibson, 883 So.2d 1155, 1157 (Miss.2004). The Commission recommended that Judge Osborne be removed from office. However, since the institution of the subject proceedings, Judge Osborne has resigned from the bench.

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

¶ 32. Judge Osborne was appointed to the bench in 2001, and he later was elected and reelected in the 2002 and 2006 general elections, respectively. However, in looking to the character of his service, Judge Osborne’s tenure in the judiciary has been marked by prior disciplinary proceedings before the Commission and sanctions by this Court. In Mississippi Commission on Judicial Performance v. Osborne, 876 So.2d 324 (Miss.2004) (Osborne I), Judge Osborne was publicly reprimanded for practicing law as a judge in violation of Mississippi Code Sections 9-1-25 and 9-9-9 (Rev.2002). In Mississippi Commission on Judicial Performance v. Osborne, 977 So.2d 314, 326 (Miss.2008) (Osborne II), Judge Osborne was suspended for 180 days and assigned the costs of that proceeding for failing to observe high standards of conduct and invoking his office in objecting to the repossession of the automobile jointly owned by his wife and mother-in-law. Today’s case is Osborne III.

B. Whether there is any case law on point.

¶ 33. Having already discussed factual similarities between this case and Mississippi Commission on Judicial Performance v. Boland, 975 So.2d 882 (Miss.2008) (Boland I), we will not belabor the point. In Mississippi Commission on Judicial Performance v. Byers, 757 So.2d 961 (Miss.2000), the Commission had recommended removal from office prior to Judge Byers losing her bid for reelection. Because she was no longer in office, this Court imposed a sanction less severe than removal from office. Id. at 973.

C. The magnitude of the offense.

¶ 34. Undermining the public confidence in the integrity, propriety, and impartiality of the office is an egregious offense. Judge Osborne’s comments received widespread publicity in the media to the extent that forty-eight citizens complained to the Commission.

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

¶ 35. As discussed previously, Judge Osborne has a long history of violating the judicial canons and being sanctioned by this Court. It would stand to reason that a third offense warrants a harsh sanction.

E. Whether moral turpitude was involved.

¶ 36. The Commission argues that Judge Osborne’s comments failed to uphold the “dignity and respect of the judiciary” pursuant to this Court’s holding in Mississippi Commission on Judicial Performance v. Sanford, 941 So.2d 209, 217 (Miss.2006). The Commission’s argument on this point is based on its assertion of perjury committed by Judge Osborne. Inasmuch as we have resolved the perjury issue in favor of Judge Osborne, we find that moral turpitude was not involved.

F. The presence or absence of mitigating or aggravating circumstances.

¶ 37. Judge Osborne urges this Court to consider his community and public service and his plans for improvement to the juvenile justice system in Leflore County. However, the Commission points to Judge Osborne’s prior disciplinary history as an aggravating factor. See Miss. Comm'n on Judicial Performance v. Lewis, 913 So.2d 266 (Miss.2005). This Court agrees with the Commission that two prior offenses outweigh the character of Judge Osborne’s service to his community.

¶ 38. Based on Judge Osborne’s actions in today’s case and his history of judicial misconduct already discussed, the harshest constitutional remedy-removal from office-would be appropriate. We acknowledge that since the institution of these proceedings before the Commission, Judge Osborne has resigned his judicial position, effective May 30, 2008. Thus, one obvious issue to consider is the propriety of removing from office, or suspending from office, a judge who is no longer holding judicial office at the time of this Court’s decision in a judicial misconduct case. In other words, what is the point?

¶ 39. We acknowledge that in at least two eases, after finding egregious conduct on the part of the subject judges, we chose the sanction of public reprimand as the judges, by the time of our decisions, had been removed from judicial office via the citizens at the ballot box. Miss. Comm’n on Judicial Performance v. Boland, 998 So.2d 380, 393 (Miss.2008) (.Boland II); Miss. Comm’n on Judicial Performance v. Byers, 757 So.2d 961, 973 (Miss.2000).

¶ 40. On the other hand, in Mississippi Commission on Judicial Performance v. Dodds, 680 So.2d 180 (Miss.1996), this Court found that the judge “should be removed from the bench.” Id. at 201. This finding was made notwithstanding the fact that the subject judge had chosen not to seek reelection to judicial office and thus was no longer in office at the time of this Court’s decision to remove him from office. Id. at 182 n. 1. Of significant import in today’s case is the following language found in Dodds, in which Justice Banks, writing for the majority, stated:

Floyd Dodds was not a candidate for reelection in the 1995 elections and, therefore, left office in January 1996. It follows that this case is moot insofar as it requires that he leave office. We conclude, however, that there are substantial reasons for bringing this matter to a conclusion with a decision on the merits. First, one should not be able to preclude discipline by the simple expedient of resigning or otherwise voluntarily leaving office. See In re the Matter of Weeks, 134 Ariz. 521, 658 P.2d 174 (1983). Additionally, judicial conduct is a matter of great public interest and our decisions serve as a guide for the entire judiciary and to preserve the public confidence in it. In re Yaccarino, 101 N.J. 342, 502 A.2d 3, 30-31 (1985); Matter of Probert, 411 Mich. 210, 308 N.W.2d 773, 776 (1981); Judicial Inquiry and Review Bd. v. Snyder, 514 Pa. 142, 523 A.2d 294, 298 (1987).

Dodds, 680 So.2d at 182 n1. See also Miss. Comm’n on Judicial Performance v. Brown, 918 So.2d 1247, 1256, 1259 (Miss.2005) (judge removed from office although he “claim[ed] he [would] not seek another term.”).

¶ 41. As we stated in Osborne II, “[a] second offense undoubtedly warrants a harsher penalty.” Osborne, 977 So.2d at 326. In Osborne II, we found that Judge Osborne’s judicial misconduct warranted, inter alia, a suspension from office for a period of 180 days. Id. at 327. It thus logically follows that a third offense of judicial misconduct on the part of Judge Osborne would warrant a harsher penalty than the 180-day suspension which Judge Osborne received for his second offense. Therefore, we find that in today’s case, Osborne III, the appropriate sanction is suspension from office for a period of one year and the assessment of costs. Again, we find this sanction to be in keeping with the logic expressed in Dodds for the imposition of a sanction of removal (or in this case, suspension), even though the judge chose to resign from judicial office prior to this Court’s decision. Dodds, 680 So.2d at 182 n1.

¶ 42. In Boland II, this Court found that because the voters had removed the judge from office by the time we decided her case, the constitutional sanction of removal from office was no longer available. Boland II, 998 So.2d at 393. More specifically, we stated that “[s]ince the public removed [the judge] from office before this Court could act on the Commission’s recommendation, the remaining options [under the Constitution] are only to fine or publicly censure or reprimand her.” Id. However, this statement in Boland II is inconsistent with Dodds. Therefore, to this limited extent, Boland II is overruled.

CONCLUSION

¶ 43. Judge Osborne’s actions constituted willful misconduct in office and conduct prejudicial to the administration of justice which brought the judicial office into disrepute. We thus order Judge Osborne to be suspended from office for a period of one year and to be assessed costs in the sum of $731.89.

¶ 44. FORMER COUNTY COURT JUDGE SOLOMON C. OSBORNE SHALL BE SUSPENDED FROM OFFICE FOR A PERIOD OF ONE YEAR FROM AND AFTER THE ISSUANCE OF THE MANDATE IN THIS CASE AND IS ASSESSED COSTS OF $731.89.

WALLER, C.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY GRAVES, P.J., AND DICKINSON, J. DICKINSON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J., AND KITCHENS, J.

KITCHENS, Justice,

Dissenting.

¶ 45. Although I agree with Justice Dickinson’s conclusion that this case is controlled by the U.S. Supreme Court’s decision in Republican Party v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), I write separately to express my conviction that, where our ethical rules collide with the freedom of speech, our canons must yield to our constitutions.

¶ 46. Credibility is the fresh air by which courts breathe life into their decisions. Without credibility, judicial opinions cannot go forth from the courthouse to spread the rule of law. Without credibility, a court’s written word is worthless. Without credibility, judges are reduced from arbiters of justice to men and women vainly whispering from a lonely mountaintop. No justice voting today would say that the Code of Judicial Conduct is not a critically important standard by which the credibility of our state’s judiciary is measured.

¶ 47. But unwavering fidelity to constitutional principles must always transcend and trump even the loftiest and most laudable goals and guidelines for our state judiciary. Our democracy has survived for more than two centuries for no reason more important than courts’ faithful protection of unfettered political debate, a freedom deemed sacred by our state constitution. Miss. Const. art. 3, § 13. Long have our nation’s judges recognized that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). “Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949).

¶ 48. Today, we are asked to pass judgment in a case that places these two tenets in direct tension, positing a question of whether we afford greater importance to our ethical rules or our dedication to free speech. I agree with Justice Dickinson that the majority’s distinction of this case from the U.S. Supreme Court’s holding in Republican Party v. White is misplaced. But I would also hold that, to the extent the Code of Judicial Conduct regulates speech, it is powerless to sanction.

¶ 49. To be sure, the Mississippi Constitution’s commands that judges refrain from “willful misconduct” and “conduct prejudicial to the administration of justice,” Miss. Const. art. 6, § 177A, are not facially violative of the First Amendment. The U.S. Supreme Court has gone to great lengths to distinguish speech, which the First Amendment fiercely protects, and conduct, which it does not protect. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993). Likewise, to the extent that the Code of Judicial Conduct implicates pure conduct, I do not suggest that it trespasses upon the ground staked off by the First Amendment and our state Constitution, and I would not subject decisions thereunder to great scrutiny. See, e.g., United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). But when government seeks to level the sword of judgment against a speaker because of the political content of his message, rather than for the act of speaking, then the restriction “must be subjected to the most exacting scrutiny.” Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). The majority erroneously applies the lesser standard that the U.S. Supreme Court has developed to address the speech of public employees. Maj. Op. at 18 (citing Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). The high court, the Fifth Circuit Court of Appeals, and this Court all have made abundantly clear that elected judges are no mere “public employees” but moderators of public debate that, like all elected officials, enjoy a “role that ... makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” Republican Party v. White, 536 U.S. 765, 781-82, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (quoting Wood v. Georgia, 370 U.S. 375, 395, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962)). See also Jenevein v. Willing, 493 F.3d 551, 558 (5th Cir.2007) (applying strict scrutiny in a case involving a Texas judge punished for public speech); Miss. Comm’n on Judicial Performance v. Wilkerson, 876 So.2d 1006, 1011 (Miss.2004) (applying strict scrutiny in the case of a judge who wrote in a local newspaper that homosexuals belonged in mental institutions).

¶ 50. Under this degree of scrutiny, a speech regulation comports with the First Amendment only when it has been narrowly tailored to address a compelling state interest, Boos, 485 U.S. at 321, 108 S.Ct. 1157, and any restriction that punishes constitutionally protected speech is necessarily overbroad. See United States v. Playboy Entm’t Group, 529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). In my view, Judge Osborne’s comments were far beneath the dignity of a judge. But just as clearly, his comments addressed a political issue, and not just any political issue, but the seminal political issue of this state’s history: race. Therefore, any provision of legal force that punishes Judge Osborne for that speech violates the First Amendment of the U.S. Constitution and Article 3, Section 13 of the Mississippi Constitution.

¶ 51. Ultimately, despite the White Court’s attention to “disputed legal and political issues,” White, 536 U.S. at 768, 122 S.Ct. 2528, our free-speech jurisprudence makes clear that the government violates the First Amendment and Section 13 not only by punishing a speaker for engaging in political speech, but also by enumerating the topics upon which speech is tolerated, “[f]or it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.” Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 86 L.Ed. 192 (1941). See also Boos, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (reiterating that content-based restrictions on speech will be subjected to strict scrutiny). “It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.” White, 536 U.S. at 782, 122 S.Ct. 2528 (Scalia, J.) (quoting Brown v. Hartlage, 456 U.S. 45, 60, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982)).

¶ 52. I would hold, therefore, that an application of the Code of Judicial Conduct violates the First Amendment and Section 13 not only when it punishes speech regarding “disputed legal and political issues,” but also when it punishes speech regarding any political issue, disputed or otherwise. For that reason, I would find that the Mississippi Commission on Judicial Performance is powerless to sanction Judge Osborne for the message that he delivered.

¶ 53. Furthermore, because the First Amendment’s protections also extend to communicative conduct and include the freedom of association, Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), I would find that our federal and state constitutions forbid sanction against Judge Osborne for membership in the Greenwood Voters League or any other political organization. “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as [the U.S. Supreme Court] has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). Therefore, if we recognize, as we should, that Judge Osborne’s political speech fell within the protections of Section 13 and the First Amendment, then we must also recognize that the association he undertook for the expression of those ideas likewise enjoyed constitutional protection.

¶ 54. Today’s decision not only violates the protections afforded to Judge Osborne under the First Amendment and Section 13 of the Mississippi Constitution but also deprives the voters of this state the benefit of full, unfettered debate by their judicial candidates and officeholders. Under our state’s system of judicial elections, the decision of whether an outspoken judge’s comments warrant removal rests properly with his constituents.

¶ 55. Judge Osborne’s rhetoric sits no more easily with me than with any other justice voting today. But “[i]f the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned.” Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483, 54 S.Ct. 231, 78 L.Ed. 413 (1934) (Sutherland, J., dissenting). Accordingly, I dissent.

GRAVES, P.J. AND DICKINSON, J., JOIN THIS OPINION IN PART.

DICKINSON, Justice,

Concurring in Part and Dissenting in Part.

¶ 56. The state may not “censor what the people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer. Deciding the relevance of candidate speech is the right of the voters, not the State.” Republican Party of Minnesota v. White, 536 U.S. 765, 794, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (Kennedy, J., concurring).

¶ 57. Judge Osborne’s malevolent, racist words should be offensive to all rational, fair-minded people. As judicial officers, however, we are required to follow the law. With the utmost respect to the justices comprising the majority, I cannot conclude that this Court is today following the law. I therefore must respectfully dissent in part.

The Law

¶ 58. The controlling law for governmental attempts to control the speech of elected judges is White, in which the United States Supreme Court addressed the question of “whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues.” Id. at 768, 122 S.Ct. 2528. In deciding that states may not prohibit judicial candidates from making speeches on political issues during a campaign, the White Court noted that political speech is a category of speech that is “at the core of our First Amendment freedoms.” Id. at 774, 122 S.Ct. 2528. In reviewing some of its precedent, the White Court went further to state:

“The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” Wood v. Georgia, 370 U.S. 375, 395, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962). “It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign.” Brown v. Hartlage, 456 U.S. 45, 60, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (internal quotation marks omitted). We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.

White, 536 U.S. at 781-82, 122 S.Ct. 2528. Thus, according to White, this Court is constitutionally prohibited from punishing a candidate for judicial office for “announcing their views on disputed legal and political issues.”

¶ 59. Indeed, this Court recently has held that judges do not abandon their constitutional rights when they take the oath of office, and that this Court may not impose sanctions where doing so would contravene an individual’s constitutional rights. Miss. Comm’n on Judicial Performance v. Wilkerson, 876 So.2d 1006, 1010 (Miss.2004).

Judge Osborne’s Statement

¶ 60. According to the Commission, Judge Osborne — referring to the appointment of two local African-Americans to the Greenwood Election Commission by a Caucasian mayor — made the following statement: “White folks don’t praise you unless you’re a damn fool. Unless they think they can use you. If you have your own mind and know what you’re doing, they don’t want you around.”

¶ 61. I cannot agree with the majority’s single sentence with which it attempts to distinguish White. The majority says only that “Judge Osborne’s disparaging insults went well beyond the realm of protected campaign speech expressing views on disputed legal and political issues....” Maj. Op. at 20. To the contrary, Judge Osborne was clearly announcing his view on a disputed political issue-his disagreement with the Greenwood mayor’s appointments to the Greenwood Election Commission. Disagreement with an elected mayor’s political appointments to an election commission would seem to me to easily qualify as a “disputed political issue.”

¶ 62. Judge Osborne made his statements in an election year, after he had qualified as a candidate. He was speaking in his capacity as a qualified candidate. The subject of his inflammatory statements was his criticism of two political appointments to the Greenwood Election Commission. Thus, Judge Osborne’s speech-offensive though it was-constitutes protected political speech, and this Court, in my view, is powerless to punish him for it.

¶ 63. With the greatest respect for my esteemed colleagues in the majority, I find it curious that the majority virtually ignores White (recognized as the controlling authority on the issue of restricting a judicial candidate’s speech), and then proceeds to ignore its holding; relying instead on Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), a case decided forty years ago which involves a school teacher, not a judicial candidate.

¶ 64. In fairness to the majority, I recognize — and must point out — that White did not address the precise question of “whether a State may restrict the speech of judges because they are judges-for example, as part of a code of judicial conduct....” White, 536 U.S. at 796, 122 S.Ct. 2528 (Kennedy, J., concurring). Justice Kennedy stated:

Whether the rationale of [Picketing ] and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), could be extended to allow a general speech restriction on sitting judges — regardless of whether they are campaigning — in order to promote the efficient administration of justice, is not an issue raised here.

Id. In my view, however, there is no logical argument why the principles announced in White would not extend to any canon or other restriction on a judge’s right to free speech during the course of a political campaign.

¶ 65. Although I agree with the majority’s conclusions concerning all other matters, I cannot agree that Judge Osborne may be punished for making a political speech. Thus, I concur in part and dissent in part.

GRAVES, P.J., AND KITCHENS, J., JOIN THIS OPINION.

      . According to the Commission, the statement was made in reference to the appointment of two local African-Americans to the Greenwood Election Commission by a Caucasian mayor.

      . By the time of the subsequent committee hearing, Osborne was represented by counsel.

      . See Kron v. Van Cleave, 339 So.2d 559, 563 (Miss.1976) ("courts will not decide a constitutional question unless it is necessary to do so in order to decide the case”); see also Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944) (If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.).

      . In its formal complaint, the Commission charged Judge Osborne with violating section A(3)(a), not section A(1)(a) of Canon 5.

      . The Greenwood Voters League is a predominantly African-American political organization which regularly endorses candidates sympathetic to the black community. Jordan v. Greenwood, 534 F.Supp. 1351, 1354 (N.D.Miss.1982). It is general knowledge that the League holds weekly meetings in the City of Greenwood, either at public places or private facilities open to the public, to discuss civic issues. During election cycles, many candidates running for political office, as well as judicial office, are invited by the League to speak. There is no evidence in the record demonstrating that the League practices invidious discrimination on the basis of race, gender, religion, or national origin. See Canon 2C.

      . We do not dispute the fact that, from the record, the Commission could have charged Osborne with perjury via a formal complaint. and proceeded to an evidentiary hearing on dris issue; however, the Commission did not do so.

      . In Gibson, we modified the Baker factors. Gibson, 883 So.2d at 1158 (citing Inquiry Concerning Dennis M. Baker, Chancellor, 535 So.2d 47, 54 (Miss. 1988)).


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Daryl HAWKINS, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01204-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2008.
    Rehearing Denied March 31, 2009.
    Certiorari Denied June 18, 2009.

      George T. Holmes, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appel-lee.
    Before MYERS, P.J., IRVING and CARLTON, JJ.
   IRVING, J.,

for the Court.

¶ 1. Daryl Hawkins was convicted by the Bolivar County Circuit Court of attempted burglary of an automobile and sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections. Aggrieved, he appeals and asserts (1) that the indictment is void, (2) that he was entitled to a jury instruction based on the theory of abandonment, (3) that the trial court erred in denying his motion for a directed verdict or, alternatively, for a judgment notwithstanding the verdict, and (4) that his sentence is unconstitutional.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. During the early morning hours of March 7, 2004, Robert Graham, an investigator with the Cleveland Police Department, sat in an unmarked car while on special patrol at the Colony Apartments in Cleveland, Mississippi. At approximately 3:00 a.m., Investigator Graham observed a Nissan Altima with two occupants, who would later be identified as Brandon James and Daryl Hawkins, enter the parking lot. Investigator Graham exited his vehicle and hid between other vehicles that were parked in the parking lot and watched as James drove to the back of the apartment complex. Investigator Graham watched as the vehicle came back around, and he saw the passenger, who he recognized as Hawkins, walk toward a vehicle. Investigator Graham then observed Hawkins rub dew off of the vehicle’s window and look inside. Hawkins went to another vehicle, a Nissan Sentra, and broke its window. The car’s alarm sounded, Hawkins ran to his vehicle, and James pulled off.

¶ 4. Investigator Graham called for backup, ran to his vehicle, and gave chase. Investigator Graham followed Hawkins’s vehicle as it continued through Cleveland, Mississippi, toward the City of Boyle. Investigator Graham and other officers, who had arrived to assist him, blocked Hawkins’s car in. Thereafter, Hawkins and James were arrested. After James and Hawkins were placed in a patrol car, Investigator Graham saw a sharp object with a wooden handle which was later determined to be an ice pick.

¶ 5. James also provided his account of what transpired. He testified that Hawkins paid him five dollars to drop him off at the Colony Apartments. James then stated that he drove around to the back of the apartment complex and that Hawkins got out of the vehicle. James stated that he did not see or hear anything else. According to James, shortly thereafter, Hawkins got back in the vehicle and instructed him to “drive before somebody think [sic] we’re out here trying to break into something.” James testified that he heard a car alarm when Hawkins opened the car door. He also stated that he did not hear the alarm when Hawkins exited the vehicle. James and Hawkins then left the apartment complex and were later stopped by the police. James testified that when they noticed the police car behind them, Hawkins stated, “I broke the window out of the car, man, we’re fixing to go to jail.”

¶ 6. Hawkins testified on his own behalf and stated that at approximately 1:00 a.m. he was approached by James while he was standing on a street corner. Hawkins explained that James agreed to give him a ride home, but they somehow ended up at the Colony Apartments. Hawkins stated that once they arrived at the apartment complex, James drove to the rear of the complex and got out of the vehicle. Hawkins claimed that he did not know where James went after he exited the vehicle. According to Hawkins, a short time later, James reappeared and got back into the vehicle. However, James was only in the vehicle for a short time before he got out again. Hawkins stated that James then ran back to the vehicle and drove off. Hawkins testified that he never exited the vehicle. Hawkins recalled hearing the car alarm sound after James re-entered the vehicle the second time. Hawkins testified that Investigator Graham was mistaken about who he saw that night, as he maintained that James was the person who got out of the vehicle that night.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. In his first assignment of error, Hawkins contends that the indictment is defective because it failed to state necessary elements of the offense of attempted burglary, namely that he committed an overt act in furtherance of the attempted burglary and that he failed to consummate its commission. “The question of whether .an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by [the appellate courts].” Jones v. State, 912 So.2d 973, 975(¶8) (Miss.2005) (citing Peterson v. State, 671 So.2d 647, 652 (Miss.1996) (superceded by statute)). Therefore, we review a claim that an indictment is defective de novo. Id.

¶ 8. Hawkins’s indictment states, in pertinent part, that:

DARYL HAWKINS & BRANDON L. JAMES,
late of the County and Judicial District aforesaid, on or about March 7, 2004, in the County, Judicial District and State aforesaid, and within the jurisdiction of this Court, individually or while aiding and abetting and/or acting in concert with each other, did then and there, unlawfully, willfully, feloniously and bur-glariously attempt to break and enter a certain automobile, commonly known as, called and being a 2000 Nissan Sentra, by breaking out a window, said automobile being located at Colony Apartments in Cleveland, Mississippi, there situated, of the property of Kristi Ann Beachy a/k/a “Chris Beachy,” in which there were then and there goods, merchandise, equipment or valuable things, kept for use or sale, with the intent to steal therein, or to commit any felony....

(Emphasis added). As clearly evidenced by the indictment, Hawkins was on notice that he was being indicted for attempting to break into an automobile by “breaking out a window.” The Mississippi Supreme Court has held that “[t]he crime of attempt to commit an offense occurs when a person shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same.... ” Henderson v. State, 660 So.2d 220, 222 (Miss.1995) (quoting Ross v. State, 601 So.2d 872, 874 (Miss.1992)).

¶ 9. In order to convict Hawkins of attempted burglary, the State was required to show that he “attempted to” break and enter the Nissan Sentra but either failed or was prevented from doing so. In this case, the evidence clearly shows that Hawkins possessed the requisite intent to commit the crime of burglary. He peered into the window of one vehicle before he even approached the Nissan Sentra. It was only after he had broken the window and the car alarm had sounded that Hawkins fled from the Nissan Sentra. Thus, we find that the record supports Hawkins’s conviction for attempted burglary. We further find that the indictment was sufficient to put Hawkins on notice that he was being charged with attempted burglary, and that the indictment specifically set forth the conduct that constituted the attempt. Based on the reasons stated, we find no merit to this issue.

¶ 10. Hawkins also argues that the indictment is defective because it failed to charge the third element of attempt: the failure to consummate its commission. It is the law of this State that “the intent to commit a crime plus any slight act toward its consummation is sufficient in law to constitute the commission of an attempted crime.” Ford v. State, 218 So.2d 731, 732 (Miss.1969) (citing Stokes v. State, 92 Miss. 415, 428, 46 So. 627, 629 (1908)). Thus, Hawkins’s indictment is not defective even though it did not charge that he failed to consummate the burglary. This issue lacks merit.

¶ 11. Next, Hawkins argues that the trial court erred in refusing to grant his request for the following abandonment jury instruction:

If you find from the evidence, beyond a reasonable doubt, that Daryl Hawkins freely and voluntarily abandoned his intent to commit the crime of burglary of an automobile before the defendant performed any overt act toward the commission of that crime, and if you further believe there was not an outside cause prompting the abandonment, then you shall find the defendant not guilty.

“A defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may properly refuse the requested instructions if they are found to ... be without proper foundation in the evidence of the case.” Green v. State, 884 So.2d 733, 735(¶3) (Miss.2004) (quoting Howell v. State, 860 So.2d 704, 761 (¶203) (Miss.2003)). The State objected to the abandonment instruction and argued that “the breaking [of] the window is the act toward the commission of a felony and that the alarm is what says, ‘Don’t do it.’ ”

¶ 12. In order for an abandonment instruction to be warranted a defendant must show that he voluntarily abandoned his intent and did “not have his intent frustrated by the resistance of the victim or the intervention of a third party.” Pruitt v. State, 528 So.2d 828, 831 (Miss.1988) (citing Edwards v. State, 500 So.2d 967, 969 (Miss.1986)). Investigator Graham testified that Hawkins did not flee from the vehicle until after he had broken the window and the car alarm sounded. On the other hand, Hawkins testified that Investigator Graham mistakenly identified him as being the person who had broken the window out of the Nissan Sentra. Hawkins also testified that he never exited his vehicle. Further, James stated that Hawkins exited the vehicle even though James stated that he did not see Hawkins approach the Nissan Sentra. As such, there is nothing in the record that supports Hawkins’s contention that he abandoned his attempt to burglarize the Nissan Sentra. By contrast, Hawkins testified that he did not approach the Nissan Sentra at all. In Ishee v. State, 799 So.2d 70, 73(¶7) (Miss.2001) (emphasis added) (quoting Bucklew v. State, 206 So.2d 200, 202-03 (Miss.1968)), the Mississippi Supreme Court stated that:

An attempt is a direct movement toward the commission of the crime after the preparations have been made; the defendant’s act must be a direct, unequivocal act toward the commission of the intended crime; that his acts must have progressed to the extent of giving him power to commit the offense and nothing but an interruption prevented the commission of the offense; that the defendant’s act must reach far enough toward the accomplishment of his intention to commit the offense to amount to a commencement of the consummation or to be a step in the direct movement toward its commission; and that some appreciable fragment of the crime must be committed so that the crime would be completed if the defendant were not interrupted.

It is extremely likely that Hawkins would have burglarized the Nissan Sentra had its car alarm not sounded; thus, the burglary would have been completed if he were not interrupted by it. We conclude that the trial judge committed no error in refusing to allow the abandonment instruction, as it is clear that it was not supported by the evidence. This issue lacks merit.

¶ 13. Hawkins also argues that the trial judge erred in failing to grant his motion for a directed verdict or, alternatively, his motion for a judgment notwithstanding the verdict. Motions for directed verdicts and motions for judgments notwithstanding the verdict challenge the sufficiency of the evidence used to convict. Fleming v. State, 732 So.2d 172, 182(¶ 33) (Miss.1999) (citing Noe v. State, 616 So.2d 298, 302 (Miss.1993)). “When reviewing a case for 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.’ ” Brown v. State, 970 So.2d 710, 712-13(¶ 7) (Miss.2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). “If, keeping in mind the reasonable-doubt standard, ‘reasonable and fair-minded [jurors] in the exercise of impartial [judgment] might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Id. at 713(¶ 7) (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

¶ 14. We conclude that reasonable, fair-minded jurors could have found Hawkins guilty of attempted burglary of an automobile, as the evidence shows that Hawkins approached a vehicle prior to approaching the Nissan Sentra; he then made his way to the Nissan Sentra, looked inside, and broke its window. Investigator Graham, James, and Hawkins testified at trial. The jury must have found Hawkins’s testimony less credible than that of Investigator Graham and James. “[T]he jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of witnesses.” Luster v. State, 515 So.2d 1177, 1180 (Miss.1987) (citing Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980)). There is nothing to support Hawkins’s assertion that the evidence was insufficient to sustain his conviction. There is no merit to this issue.

¶ 15. Finally, Hawkins argues that his sentence is unconstitutionally disproportionate to the crime of attempted burglary of an automobile. Hawkins relies on Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) to support his contention that his sentence of life without the possibility of parole in the custody of the Mississippi Department of Corrections is unconstitutional. In Solem, the United States Supreme Court set the standard for proportionality as follows:

a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Solem, 463 U.S. at 292, 103 S.Ct. 3001. Hawkins argues that his sentence runs afoul of the three-pronged analysis in So-lem. We point out that the United States Supreme Court subsequently held that “Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee.” Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). We also note that the Mississippi Supreme Court held in Hoops v. State, 681 So.2d 521, 538 (Miss.1996) (quoting Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir.1996)) that “[i]n light of Harmelin, it appears that Solem is to apply only when a threshold comparison of the crime committed to the sentence imposed leads to an inference of ‘gross dis-proportionality.’ ”

¶ 16. Hawkins was convicted of attempted burglary of an automobile and sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2007) which provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added). It is clear that under the facts of this case if Hawkins were found guilty of the charge of attempted burglary of an automobile, he could be sentenced as a habitual offender under section 99-19-83, as he has one previous conviction for robbery and two for burglary. It is well established that “[s]entenc-ing is within the complete discretion of the trial court and [is] not subject to appellate review if it is within the limits prescribed by statute.” Hoops, 681 So.2d at 537 (citing Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)). We find no merit to this issue, as Hawkins’s sentence was within the statutory limits. Thus, no further analysis pursuant to Solem is required.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF ATTEMPTED BURGLARY OF AN AUTOMOBILE AND SENTENCE AS A HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

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

      . Investigator Graham staled that he did not see what Hawkins used to break the glass.

      . Investigator Graham was clear that James did not exit the vehicle at any time.


author: MYERS, P.J., LEE, P.J.,

text:
    Lillie POE, Mae Helen Wethers Douglass, Walter Ingram and James Ingram, Appellants v. Timothy SUMMERS and Stephanie N. Summers O’Neal, Appellees.
    No. 2007-CA-02278-COA.
    Court of Appeals of Mississippi.
    April 14, 2009.

      James Mortimer Crews, Canton, attorney for appellants.
    Jessie L. Evans, Canton, attorney for appellees.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Lillie Poe, Mae Helen Wethers Douglass, Walter Ingram, and James Ingram filed suit in the Madison County Chancery Court alleging that Dr. Timothy Summers and his daughter, Stephanie Summers, committed fraud in transferring title to real property located in Madison County, Mississippi. After the appellants had presented their case, Dr. Summers and Stephanie moved to dismiss the case. The chancellor found that the appellants had failed to prove fraud by clear and convincing evidence and dismissed their claim with prejudice. The appellants appeal the chancellor’s ruling.

FACTS AND PROCEDURAL HISTORY

¶ 2. The subject of this dispute is part of twenty acres originally owned by Bruce Perkins. At the time of his death, Perkins bequeathed five acres to each of his three grandchildren — Mae Helen Douglass (Douglass), Walter Ingram (Walter), and James Ingram (James) — and five acres to his common-law wife. After Perkins’s common-law wife passed away, Lillie Poe inherited her five acres. Poe is the granddaughter of Perkins’s common-law wife. Thus, Mae Helen Douglass, Walter Ingram, James Ingram, and Lillie Poe each owned five acres of the original twenty-acre parcel owned by Perkins.

¶ 3. In 1995, Poe contacted Walter and James Ingram (collectively, the Ingram brothers) about acquiring each person’s five-acre inheritance. Poe claims she orally agreed with each of the Perkins’s grandchildren to purchase their five acres of the subject property for $2,500, a total of $7,500 for the fifteen acres. The appellants admit that no written agreement was prepared containing the above arrangement.

¶ 4. Poe asserts that she decided to travel to Kansas City, Missouri, the home of Douglass and the Ingram brothers, and purchase the subject property. However, due to health problems, Poe was unable to travel to Kansas City for the purchase. She decided to send her daughter as her proxy and informed Douglass and the Ingram brothers about this arrangement.

¶ 5. In October 1997, according to Douglass, she picked up who she thought was Poe’s daughter from the Kansas City airport, but it was actually Stephanie. On October 10, 1997, the two sides executed a quitclaim deed, where Douglass and the Ingram brothers each transferred their five acres to Stephanie for $7,500, with $2,500 going to each grantor. The quitclaim deed clearly lists Stephanie Summers as the grantee. Stephanie returned to Kansas City a week later, on October 17, 1997, to execute a warranty deed on the same property. Again, the warranty deed lists Stephanie Summers as the grantee. Approximately a month later, Stephanie mailed a corrected warranty deed to Douglass and the Ingram brothers. The corrected warranty deed, like the original warranty deed and the quitclaim deed, lists Stephanie Summers as the grantee. Douglass and the Ingram brothers signed the corrected warranty deed on February 17, 2000, and returned it to Stephanie. Stephanie then filed an action in the Madison County Chancery Court to confirm title, which resulted in an order on July 11, 2000, confirming title to Stephanie.

¶ 6. Poe and her actual daughter, Renee, visited Kansas City sometime after the execution of the corrected warranty deed. It was at this point, the appellants claim, that Douglass realized that Stephanie was not Poe’s daughter, as she originally thought. However, Douglass vacillated in her testimony about when she first discovered that Stephanie and Renee were not the same person. She stated three separate instances of when she initially discovered the identity of Stephanie and Renee: during a phone conversation with Poe in 1999 (prior to the execution of the corrected warranty 'deed), when Poe and her actual daughter visited Kansas City, and when an affidavit was sent to her containing a picture of Renee.

¶ 7. Douglass and the Ingram brothers all testified that they believed Stephanie was Poe’s daughter when she arrived in Kansas City in October 1997 to execute the quitclaim deed.

¶ 8. On April 10, 2001, Poe, Douglass, and the Ingram brothers filed suit in the Madison County Chancery Court alleging that Dr. Summers and Stephanie fraudulently acquired title to the subject property. In particular, the complaint alleges that Stephanie fraudulently represented herself as Poe’s daughter. After the appellants presented their case, the appellees made a motion to dismiss. On November 19, 2007, the chancellor dismissed the action with prejudice. The chancellor found that Poe failed to list the present action in her petition for bankruptcy, and pursuant to ease law, Poe was judicially estopped from proceeding with the action. The chancellor further found that the appellants failed to establish by clear and convincing evidence that they were defrauded out of the subject property. Aggrieved, the appellants appeal arguing that the chancellor erred in her finding.

STANDARD OF REVIEW

¶ 9. “In granting a motion to dismiss made under [Mississippi Rule of Civil Procedure] 41(b), a trial court should consider ‘the evidence fairly, as distinguished from in the light most favorable to the plaintiff,’ and the court should dismiss the case if it would find for the defendant.” Singing River Elec. Power Ass’n v. State ex rel. Miss. Dep’t of Envtl. Quality, 693 So.2d 368, 371 (Miss.1997). “[T]his Court’s review of the chancellor’s decision to dismiss [the] claim is limited to ascertaining whether the record reveals substantial evidence to support the trial court’s findings in support of its decision.” Id. A chancellor, being the only one to hear the testimonies of witnesses and observe their demeanor, is in the best position to judge their credibility. Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983).

DISCUSSION

WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE APPELLANTS FAILED TO PROVE FRAUD BY CLEAR AND CONVINCING EVIDENCE.

¶ 10. Generally, “[i]n order to establish fraud, the following elements must be proven: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) the speaker’s intent that the representation should be acted upon by the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance on the representation’s truth; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate injury.” Holland v. Mayfield, 826 So.2d 664, 674(¶ 45) (Miss.1999).

¶ 11. The appellants contend that Dr. Summers and Stephanie committed fraud in obtaining title to the property in Madison County. We will address each claim separately.

A. Dr. Timothy Summers

¶ 12. The appellants allege that Dr. Summers, Poe’s psychiatrist, and his daughter, Stephanie, conspired to defraud them out of the subject property. The appellants further allege that Dr. Summers breached his confidential relationship with Poe by informing Stephanie about Poe’s interest in acquiring the property. However, the chancellor found that the appellants failed to established by clear and convincing evidence that Dr. Summers perpetrated fraud on the appellants.

¶ 13. We find substantial evidence to support the chancellor’s ruling. The appellants provide no proof of their claims against Dr. Summers except the naked declarations by Poe herself. According to Poe, during one of her sessions with Dr. Summers, she confided to him about the agreement to purchase the subject property. In turn, Dr. Summers informed his daughter, Stephanie, about Poe’s agreement to purchase the subject property, thus, breaching his confidentiality duty to Poe. Stephanie then became interested in acquiring the property. Poe claims that Stephanie came to her house and began asking questions about the owners of the property and their contact information.

¶ 14. Poe’s rendition is completely contradicted by Dr. Summers’s account of what transpired. Dr. Summers testified that Poe approached him asking whether he would be interested in purchasing the property. He declined and sent Poe to Stephanie to ask whether she would like to purchase the property. It was then that Poe and Stephanie began their discussions about Stephanie acquiring the property. The appellants did not provide any further evidence with regard to Dr. Summers.

¶ 15. Based upon the testimony given by Poe and Dr. Summers, we find the chancellor’s ruling was correct. The contradictions in each of their respective versions of what occurred support the finding that the appellants failed to prove fraud by clear and convincing evidence. Accordingly, this argument is without merit.

B. Stephanie Summers

¶ 16. The appellants claim that Stephanie fraudulently misrepresented and fraudulently concealed her identity. These two arguments will be addressed together.

¶ 17. The appellants argue that Stephanie’s failure to identify herself as Stephanie Summers was fraudulent. According to Douglass, when she picked up Stephanie from the Kansas City airport, Douglass asked Stephanie how her mother was doing. Douglass testified that she was inquiring about Poe’s health, knowing that Poe had been unable to travel to Kansas City. Instead of correcting Douglass, Stephanie responded, “Fine. Just Fine.” When Douglass and Stephanie reached the bank where the transaction took place, Douglass introduced Stephanie to the Ingram brothers as Poe’s daughter. The Ingram brothers testified that Stephanie was within an earshot of Douglass (two to three feet) when she made these introductions, but, again, she did not correct Douglass. The appellants argue that these actions and non-actions by Stephanie were part of a scheme to defraud the appellants into thinking that she was Poe’s daughter.

¶ 18. The dispositive issue is whether Stephanie’s nondisclosure amounted to fraud. Silence may constitute fraud when a duty exists to disclose the information claimed to have been suppressed. 37 Am.Jur.2d Fraud and Deceit § 204 (2001). Stephanie had no underlying fiduciary duty to the appellants to speak. There was no evidence presented that could result in Stephanie having a trust or fiduciary relationship with the appellants. She did not have a joint bank account with any of the appellants, handle any of their financial affairs, consult with the appellants regarding their business affairs, or possess keys to any of their possessions. Moreover, no evidence was presented that Stephanie was acting on the appellants’ behalf, or had dominion or control over them. Thus, Stephanie did not have a pre-existing duty to the appellants to inform them of her actual identity.

¶ 19. However, a party to a business transaction is under a duty to disclose facts basic to the transaction if the party knows the other is about to enter into it under a mistake as to them, and the other party could reasonably expect a disclosure of those facts. 37 Am.Jur.2d Fraud and Deceit § 206 (2001). “[Sjilence in a business transaction is not equivalent to fraud unless it is accompanied by deceptive conduct or the suppression of material facts causing actual deception.” Id. Where the parties do not stand in a confidential or fiduciary relationship with one another, an affirmative act of concealment is necessary. Van Zandt v. Van Zandt, 227 Miss. 528, 539, 86 So.2d 466, 470 (1956). Stated differently:

Where one party to a contract or transaction has superior knowledge or knowledge which is not within the fair and reasonable reach of the other party and which he or she could not discover by the exercise of reasonable diligence or has means of knowledge which are not open to both parties alike, he or she is under a legal obligation to speak, and his or her silence constitutes fraud. Where the fact concealed is peculiarly within the knowledge of one party and of such a nature that the other party is justified in assuming its nonexistence, there is a duty of disclosure, and a deliberate suppression of such a fact constitutes fraud.
Accordingly, where a party conceals a material fact knowing that the other party is acting on the assumption that no such fact exists, the concealment is as much a fraud as though the existence of the fact were expressly denied or the reverse of it expressly stated. A duty to disclose is found where one party to a transaction knows that the other is about to enter into the transaction under a mistake as to the material facts, and that the other party because of the relationship between them, the customs in the trade, or other objective circumstances, would reasonably expect a disclosure of such facts.

37 C.J.S. Fraud § 31 (2008) (footnotes omitted).

¶ 20. We find substantial evidence to support the chancellor’s finding that Stephanie did not commit fraud. The Ingram brothers did not testify in person during trial; their depositions were entered into evidence in lieu of their testimony. Walter testified that Stephanie never stated she was Poe’s daughter. Moreover, he testified that Stephanie never told the appellants to sign the deed on behalf of her mother, Poe. We give great weight to this testimony because Walter was the person who arranged the entire transaction. He contacted his brother and sister about their desire to sell the property. Walter’s account of what occurred was corroborated by James; Stephanie never stated she was Poe’s daughter or requested that they sign the deed on behalf of her mother Poe. Similarly, Douglass testified that she thought Stephanie was Poe’s daughter based on her words and actions, and what Walter had previously told her. Douglass never testified that she based her belief directly on what Stephanie said. Inferably, Stephanie never told Douglass that she was Poe’s daughter or that she was acting on behalf of Poe. Otherwise, Douglass would have testified that Stephanie told her that she was Poe’s daughter. Her failure to do so leaves us to conclude that Stephanie never directly stated that she was Poe’s daughter. Thus, we find that Stephanie did not participate in suppressing her identity to deceive the appellants into thinking she was Poe’s daughter.

¶ 21. Moreover, Douglass and the Ingram brothers clearly desired to transfer the subject property to Stephanie; all three deeds list Stephanie as the grantee. This clear intention coupled with Stephanie never stating she was Poe’s daughter and the appellants’ inability to testify to the same time line supports the chancellor’s ruling. Accordingly, this issue is without merit.

¶ 22. THE JUDGMENT OF THE MADISON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., IRVING, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. LEE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BARNES, J., AND JOINED IN RESULT ONLY BY CARLTON, J. MAXWELL, J., NOT PARTICIPATING.

LEE, P.J.,

Dissenting:

¶ 23. I disagree with the majority’s af-firmance of the chancellor’s order to dismiss this case with prejudice. I find that the record provides evidence, when reviewed in the light most favorable to the appellants, to support a conclusion of fraud. The majority declines to explain in detail why Stephanie Summers maintained her silence when she was incorrectly perceived and introduced as Lillie Poe’s daughter. The majority further turns a blind eye to how the party’s perception of Stephanie’s true identity materially altered the conveyance.

¶ 24. The majority claims Stephanie had no underlying fiduciary duty to identify herself to the appellants because she was not acting on their behalf, was not in a trust relationship with them, or was not maintaining dominion or control over them. To the contrary, I would argue that the appellants did indeed perceive themselves as in a trust relationship with Stephanie because they honestly believed her to be a member of their extended family. A fiduciary duty exists “where one person or institution assumes a trust relationship with another, such that the former, as a matter of choice or legal obligation, assumes the responsibility to act in the best interest of the latter, even to the detriment and peril of the best interests of the former.” Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213, 1239 (¶ 82) (Miss.2005). From the perspective of the appellants, it is reasonable to believe they expected Stephanie to disclose any material facts to them prior to the transaction. It is also clear to me that the appellants believed Stephanie was Poe’s daughter. The depositions of Walter and James Ingram, trial testimony of Mae Helen Douglass, and prior phone discussions regarding the transaction confirm this belief.

¶ 25. Stephanie did not disclose her true identity. Her true identity was a material fact because the family intended to convey-the property to a family member. Stephanie, who was not a member of their family, refrained from disclosing this fact, and, thus, breached her duty to disclose her identity. As a result, a non-family member received title to the property. Thus, the majority’s affirmation approves Stephanie’s use of trickery to fraudulently entice the appellants into the conveyance.

¶ 26. I would also argue that Stephanie possessed a “duty to disclose” her true identity because she was a party to a business transaction. The duty to disclose is based upon a theory of fraud that recognizes that the failure of a party to a business transaction to speak may amount to the suppression of a material fact which should have been disclosed and is, in effect, fraud. Welsh v. Mounger, 883 So.2d 46, 49(¶ 11) (Miss.2004). The Restatement (Second) of Torts § 551 (1977) outlines when a “duty to disclose” arises in a business transaction. It states:

(1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
(2) One party to a business transaction is under a duty to exercise reasonable care to disclose to the other before the transaction is consummated,
(b) matters known to him that he knows to be necessary to prevent his partial or ambiguous statement of the facts from being misleading; and
(e) facts basic to the transaction, if he knows that the other is about to enter into it under a mistake as to them, and that the • other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts.

¶ 27. It is illogical to believe Stephanie possessed any other reason to remain silent about who she was except that she knew any reference to her true identity would likely have ended the transaction and prohibited her from obtaining the property. She knew the parties were conveying the property with the belief that she was Poe’s representative. She was under a duty to exercise reasonable care to disclose facts that could have justifiably induced the appellants to act or to refrain from acting in a contrary matter to the transaction. Her identity was a fact basic to the transaction; it likely would have altered the transaction; and the mistaken identity was not known. Thus, using the Restatement’s guidelines, Stephanie breached her duty to disclose.

¶ 28. Furthermore, this Court has recognized that an omission or concealment of a material fact may constitute a misrepresentation. Rankin v. Brokman, 502 So.2d 644, 646 (Miss.1987). The elements of fraud were stated in the majority’s opinion, and I believe that elements are satisfied here in regard to a concealed material fact: A false and material representation was made that Stephanie was Poe’s daughter; Stephanie heard the falsity uttered with her own ears and did nothing to remedy the matter; Stephanie wanted Douglass and the Ingrams to believe she was Poe’s daughter because she wanted the land; Douglass and the Ingrams relied on the false information that she was Poe’s representative; and the damaging result was that their land was conveyed to someone outside their family, which was against their expressed intent.

¶ 29. For these reasons, I respectfully dissent.

BARNES, J., JOINS THIS SEPARATE OPINION. CARLTON, J., JOINS THIS SEPARATE OPINION IN RESULT ONLY.

      . We will refer to Stephanie Summers O'Neal as Stephanie Summers because this is how she was referenced in the lower court, throughout the record, and in the parties' briefs.

      . Douglass testified the land was worth $40,000 at the time of the hearing.

      . Of note, the appellants never attempted to return the money they received from Stephanie to support their fraud claim.

      . In re Pryor, 341 B.R. 571, 577-78 (Bkrtcy.N.D.Miss.2006), the United States Bankruptcy Court for the Northern District of Mississippi held that a plaintiff is judicially estopped from pursuing a claim after failing to disclose that claim in their bankruptcy petition.