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IN RE: INQUIRY CONCERNING COUNTY COURT JUDGE KELLY COLLINS

APRIL 13, 1988

IN RE: INQUIRY CONCERNING COUNTY COURT JUDGE KELLY COLLINS




ON PETITION FOR REHEARING

EN BANC.

ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:

On the petition for rehearing, the petitioner Kelly Collins, argues two propositions, viz:

 I.

 THE COURT ERRED AS A MATTER OF LAW IN ORDERING THE REMOVAL FROM OFFICE OF PETITIONER IN THE ABSENCE OF A RECOMMENDATION FROM THE MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE THAT PETITIONER BE SO PENALIZED.

 II.

 THE COURT ERRED IN ORDERING THE REMOVAL FROM OFFICE OF PETITIONER PRIOR TO REMANDING THIS CAUSE TO THE COMMISSION ON JUDICIAL PERFORMANCE FOR AN EVIDENTIARY HEARING.

 The facts involving the petitioner are fully set out in the majority opinion and will not be repeated here. We do reiterate that the Mississippi Commission on Judicial Performance found, upon the stipulation of the parties, that petitioner's conduct constitutes violations of Canons 1, 2 and 3 of the Canons of the Code of Judicial Conduct of Mississippi Judges, and found by clear and convincing evidence that the conduct of petitioner constitutes conduct prejudicial to the administration of justice which brings the judicial office into disrepute as set forth in Section 177(A) of the Mississippi Constitution of 1890, as amended.

 I.

 The petitioner contends under Proposition I that the Mississippi Supreme Court is without authority to remove a judicial officer absent a recommendation for such removal from the Mississippi Commission on Judicial Performance.

 The petition for rehearing challenges a point we had thought well settled and beyond further controversy. In Re Brown, 458 So. 2d 681 (Miss. 1984), holds that, where the Commission on Judicial Performance recommends discipline of a judge short of removal from office, this Court has the constitutional authority and responsibility to review the matter independently and, if it feels such is required by law, to order the judge removed from office. Petitioner now says we have no authority to impose a sanction more severe than

 that recommended by the Commission.

 Petitioner's argument is not just contrary to precedent, it is without foundation in reason. Petitioner would construe this state's legal scheme for judicial discipline in a wholly irrational manner. This Court concededly has complete authority to try the facts de novo. No one suggests we are bound by the Commission's findings. This is because in law this Court is the fact finder. Notwithstanding, on the matter of sanction, petitioner would tie this Court's hands and limit the Court to the Commission's recommendation. This is legal nonsense, support for which may be found in no case and in only the most wooden reading of Section 177(A) of our Constitution. *fn1

 The pertinent part of Section 177(A), Mississippi Constitution of 1890, as amended, 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: . . . (b) willful misconduct in office; (c) willful and persistent failure to perform his duties; . . . or (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.

 Section 177(A) and the majority of the text of Mississippi Code Annotated 9-19-1 through 9-19-29 (1971), as amended, were originally enacted in 1979. The language was researched, drafted and proposed by the Mississippi Judicial Council. Section 177(A) and the above sections of the Code (9-19-1 through 9-19-29), were taken from the standards relating to judicial discipline and disability retirement as proposed by the American Bar Association's Joint Committee on Professional Discipline in 1977 and approved by the American Bar Association House of Delegates in February, 1978. Standard 7, Standards Relating to Judicial Discipline and Disability Retirement, provides, in part:

 7.08 Determination of Facts. The Court should reach its own conclusion as to the facts found by the commission and as to the ...


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