In re Removal of Anderson

For the Court:

This case is before us upon the recommendation of the Mississippi Commission on Judicial Performance that Lloyd W. Anderson, a Justice Court Judge of District Three, Hancock County, be removed from office.

We concur with the finding of the Commission that the conduct of Anderson constituted willful misconduct in office. We also accept the recommendation of the Commission that Anderson be removed from office and direct his removal.

By concurrent resolution passed in 1979, the Legislature submitted to the people a proposed amendment to Article 6 of the Mississippi Constitution of 1890 by adding Section 177A, which was ratified by the electorate November 6,1979, and thereafter became a part of our State Constitution.

Section 177A directs the formation of a Commission on Judicial Performance of this State, which is composed of seven members: three judges of courts of record, which are trial courts of original jurisdiction; one judge of a justice court; two resident lay persons who have never held judicial office or been members of the Mississippi Bar; and one practicing attorney.

After directing the formation of the Commission and the composition of its membership, Section 177A reads, in part, as follows:

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

All proceedings before the commission shall be confidential, except upon unanimous vote of the commission. After a recommendation of removal or public reprimand of any justice or judge is filed with the clerk of the supreme court, the charges and recommendations of the commission shall be made public. The commission may, with two-thirds (%) of the members concurring, recommend to the supreme court the temporary suspension of any justice or judge against whom formal charges are pending. All proceedings before the supreme court under the section and any final decisions made by the supreme court shall be made public as in other cases at law.

The provisions of Section 177A have been implemented by legislative enactments providing for a commission on judicial performance, the terms of office of its members, authority as to procedures before it, and its administration. Miss.Laws, ch. 511 (1979); Miss.Laws, ch. 385 (1980) (codified at Mississippi Code Annotated § 9-19-1 et seq. (Supp.1981)).

Mississippi Code Annotated section 9-19-17 provides:

A justice or judge removed by the supreme court or the seven-member tribunal is ineligible for judicial office. . . .

A Mississippi Commission on Judicial Performance was duly appointed and constituted. Pursuant to authority granted under Mississippi Code Annotated section 9-19-23 (Supp.1981), the Commission adopted rules implementing the legislative enactment, including rules of practice and procedure before it, which were approved by order of this Court on July 9, 1980. The complete rules of the Commission are recorded in 385 So.2d at XXII-XXXV.

Rule 8D provides:

Facts requiring action of the Commission shall be established by clear and convincing evidence... .

Rule 8F provides:

The Commission recommendations to the Supreme Court for discipine [sic] may include removal from office, suspension, fine, public censure or reprimand, or retirement. In addition, the Commission may privately admonish a judge as provided by law....

Rule 10 provides for the prompt filing of the record, the findings and recommendations of the Commission with this Court, the briefs of the parties, and our review.

Rule 10E contains the scope of our review:

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

There are two types of official conduct condemned by Section 177A:

(b) willful misconduct in office; and

(e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

Courts in other jurisdictions with constitutional provisions as our own Section 177A have attempted to construe these provisions.

The North Carolina Supreme Court had occasion to state in the case of In re Peoples, 296 N.C. 109, 250 S.E.2d 890, 918 (1978):

We have heretofore attempted to define wilful misconduct and conduct prejudicial to the administration of justice in general terms.. .. Like fraud, however, these terms are “so multiform” as to admit of no precise rules or definition. .. .

The North Carolina Supreme Court in the case of In re Nowell, 293 N.C. 235, 237 S.E.2d 246, 255 (1977), reiterated the definitions of the California Supreme Court:

Willful misconduct in office is the improper or wrongful use of the power of his office by a judge acting intentionally, or with gross unconcern for his conduct, and generally in bad faith. It involves more than an error of judgment or a mere lack of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, or corruption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessary to a finding of bad faith. A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith. ... •

Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute. However, a judge may also, through negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute. (Emphasis theirs).

Based upon its facts and findings, the Commission unanimously found upon clear and convincing evidence that Anderson’s conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute as set forth in Section 177A.

By a vote of five to two the Commission recommends this Court remove Anderson from the office of Justice Court Judge, District 3, Hancock County, Mississippi as provided by Section 177A of the Mississippi Constitution. One dissent as to the recommendation of penalty to be imposed recommends that Anderson be suspended from his present office for a period of ten years. The other dissent would have found the charges against Anderson as to Torrence and Ligón were not sustained by clear and convincing evidence, and recommends that Anderson be suspended from office for a period of six and one-half years.

Rule 3H to the Commission provides a two-thirds vote of the Commission shall be required for any action pertaining to its disciplinary authority.

Section 177A does not give the Commission power to actually impose any sanction against a judicial officer, but simply to recommend.

Also Rule 10E of the Commission above quoted empowers this Court to accept, reject or modify, in whole or in part, the findings and recommendations of the Commission.

Therefore, it appears we are required to be a factfinding body, at least to some degree, in every case of this nature. California’s constitutional provision is almost identical to our Section 177A. We believe the standard announced by the Supreme Court of California in Geiler v. Commission on Judicial Performance, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1, 4 (1973), is the standard we should adopt in this State for review by the tribunal:

[Cjince the ultimate, dispositive decision to censure or remove a judge has been entrusted to this court, we conclude that in exercising that authority and in meeting our responsibility we must make our own, independent evaluation of the record evidence adduced below. After conducting such a review we may then decide as a question of law whether certain conduct, which we may have found as a fact to have occurred, was “wilful misconduct in office” or “conduct prejudicial to the administration of justice that brings the judicial office into disrepute . .. . ” Finally, it is to be our findings of fact and conclusions of law, upon which we are to make our determination of the ultimate action to be taken, to wit, whether we should dismiss the proceedings or order the judge concerned censured or removed from office.

See also In re Haddad, 128 Ariz. 490, 627 P.2d 221 (1981); West Virginia Judicial Inquiry Commission v. Dostert, 271 S.E.2d 427 (W.Va.1980); In re Jordan, 290 Or. 303, 622 P.2d 297 (1981); In re Cieminski, 270 N.W.2d 321 (N.D.1978); In re Nowell, supra; In re Brown, 512 S.W.2d 317, 320 (Tex.1974).

The power to impose sanctions is delegated solely to this Court; it therefore follows we have an obligation to conduct an independent inquiry of the record in order to make our final determination of the appropriate action to be taken in each case. In so doing, we will accord careful consideration the findings of fact and recommendations of the Commission, or its committee, which has had the opportunity to observe the demeanor of the witnesses.

On December 8, 1980, the Commission, acting through its executive director, initiated a written, formal complaint against the respondent Lloyd W. Anderson, official justice court judge of District Three, Hancock County. The complaint is in the form of a chancery court bill of complaint, and sets forth in detail all acts of misconduct upon which proof was offered at the hearing. Proper notice was given to Anderson, an answer was filed on January 15,1981, and a hearing was held before a committee of the Commission on April 9, 1981.

We first deal with the conduct of Anderson in charging traffic violators a greater sum to be paid as a fine than that officially reported and paid to the county.

Cecil Jones, investigator with the State Department of Audit, interviewed Anderson in June, 1979, on the complaint of Gary M. Cooke’s mother, a Florida resident, that she had upon demand paid her son’s fine twice. The first payment was a $33.00 money order signed and cashed by Anderson, with no credit given to Cooke. A few weeks later a $35.00 money order was mailed to Anderson, for which he gave official credit of $31.00. At first Anderson’s explanation was that it was a mistake, and upon further questioning he stated he sometimes charged a “late fee.” According to Jones, when he asked Anderson what authority he had for charging a late fee, he received no answer, and when asked who got the money for the late fee, Anderson became a little nervous, turned away, and said he would rather not talk about it any more.

Thereafter, Jones was assigned to do an investigation of Anderson’s office, and called upon him again August 27, 1979, to get the necessary paperwork, including court dockets and traffic tickets. At Jones’ request, Anderson delivered approximately 225 traffic tickets issued during the months of April, May, and June of 1979. Only 105 of these tickets were legible. Letters were mailed on these 105 tickets requesting the violators to reply with an explanation of how much they had paid, and to whom. Thirty-three letters were returned undelivered because the addressee was unknown or moved, or for similar reasons. Fifteen replied they had paid a fine, but did not send proof of payment.

Of 72 recipients of traffic tickets, Jones received written documentation from 35 of the amount paid. All showed overpay-ments. In the vast majority of instances, Anderson had charged the violator $33.00, while reporting $31.00 to the county. There were two instances of charging $35.00 while reporting $31.00, two of charging $39.00 while reporting $35.00, one of charging $39.00 while reporting $33.00, and an instance of collecting $70.00 while reporting $31.00. Also, he collected $99.00 from the employer of three defendants, but only reported $31.00 to the county, leaving $68.00 unpaid. Attached to this opinion as Appendix “A” is a schedule of these overpay-ments.

While Anderson received these amounts in fines (in most of the instances upon written demand specifying the amount), he or his office would prepare and transmit an official receipt to the violator for the lesser amount. Also, the justice court dockets showed Anderson had received the lesser amount. Finally, in his official reports to the Chancery Clerk of Hancock County itemizing the fines collected for the previous month, which he was required by law to make on or before the first Monday of each month, Anderson reported receipt of the lesser sum. In this manner, Anderson failed to report a total of $214.00 for these particular tickets, retaining and converting this sum to his own use.

In his answer Anderson alleged that he received a total of 5,346 traffic citations in 1979, and that for the months of April, May, June, 1979, his office handled 1,118. His defense was that these overcharges were mistakes. His wife testified she did most of the major bookkeeping except during the months of April, May and June, 1979, when she was sick and assisted by her sister-in-law. The sister-in-law did not testify.

The only tickets on which any investigation was made were those furnished by Anderson to Jones, the field investigator for the Auditing Department. The record made before the Commission reveals a clear, consistent pattern of petty embezzle-ments totaling $214.00. Anderson handled a very heavy volume of tickets, according to his answer. If the processing of the tickets furnished Jones had been errors in bookkeeping by his sister-in-law, he had every opportunity to present to the Commission records of other fines levied to show a pattern of rectitude on the part of himself and his office. No such proof was offered by him.

We concur in the finding of fact of the Commission that by clear and convincing evidence Anderson was shown to have violated the following duties imposed upon him by law and the Code of Judicial Conduct.

(1) Anderson unlawfully converted $214.00 in public money to his own use, failed to keep an accurate entry of each and every sum of public money he received, and willfully and fraudulently made false entries on his monthly report and claim form and certified the same was genuine, when not genuine, in violation of Mississippi Code Annotated section 97-11-29 (Supp.1981).

(2) Anderson violated the statutory duty imposed upon him as a justice court judge by Mississippi Code Annotated section 97— 11-29 (Supp.1981), to account for all fines imposed by him to the clerk of the board of supervisors and to pay the monies into the county treasury.

(3) This conduct violated Canons 1, 2A and 3B of the Code of Judicial Conduct of Mississippi Judges.

The Canons the Commission found Anderson to have violated are attached as Appendix “B” to this opinion.

The Commission also found misconduct with regard to the manner in which Anderson handled two traffic tickets presented him by Officer Silkwood, a Mississippi Highway Safety Patrolman. One concerned a Mr. Torrence and the other a Mr. Ligón.

In each case the underlying question involved the constitutional guarantees of due process. See Article 3, Sections 14 and 26, Mississippi Constitution of 1890. Many volumes have been written attempting to define these rights. Lawyers, judges, and legal scholars are very often in disagreement as to their applicability in a given fact situation. Absent proof of malice or ill will, the question of due process should be remedied, if necessary, by appeal or otherwise and not through disciplinary proceedings.

We are of the further opinion that the improper handling of the Torrence and Ligón cases was not of such magnitude as to constitute “conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” Mr. Torrence and Mr. Ligón were understandably unhappy when they learned that speeding convictions had been entered against them, (but suspended) when they thought that the highway patrolman was “giving them another chance” and that the matter would not go before any court. However, Anderson explained that the highway patrolman said he told Torrence and Ligón that he would give them another chance and ask the justice court judge (Anderson) to suspend the sentences, which is what Anderson did. The patrolman did not testify.

Our justice court system, particularly with regard to traffic violations, operates in a layman oriented, non-technical atmosphere and errors are going to occur. However, dishonesty is not to be tolerated and without considering the incidents involving Torrence and Ligón, there remains sufficient grounds for the removal of Anderson as heretofore discussed.

Therefore, the recommendations of the Commission that Lloyd W. Anderson be removed from office as Justice Court Judge of District Three of Hancock County is accepted, and his removal is so ordered and directed upon the filing of this opinion.

REMOVAL OF LLOYD W. ANDERSON AS JUSTICE COURT JUDGE OF DISTRICT THREE OF HANCOCK COUNTY IS HEREBY ORDERED AND DIRECTED THIS DATE.

PATTERSON, C. J., SUGG, P. J., and ROY NOBLE LEE, BOWLING and DAN LEE, JJ., concur.

HAWKINS, BROOM and DARDEN, JJ., specially concur.

APPENDIX A

DISPOSITION OF UNIFORM TRAFFIC CITATIONS BY JUSTICE COURT JUDGE

LLOYD W. ANDERSON

APPENDIX B

CANON 1

A Judge Should Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

CANON 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

CANON 3

A Judge Should Perform the Duties of His Office Impartially and Diligently

The judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:

B. Administrative Responsibilities

(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.

(2) A judge should require his staff and court officials subject to his direction and control to observe the standards of fidelity and diligence that apply to him.

(3) A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.