BEFORE ROY NOBLE LEE, C.J., PRATHER and GRIFFIN, JJ.
GRIFFIN, JUSTICE, FOR THE COURT:
On January 13, 1987, the Mississippi Commission on Judicial Performance (Commission) filed a formal complaint charging Dennis M. Baker, Chancellor, Place 1, Third Chancery District of Mississippi, with judicial misconduct in violation of 177A, Mississippi Constitution of 1890, as amended. The Commission found by clear and convincing evidence that Judge Baker had violated Canons 1, 2A, 2B and 7B(1)(a) of the Code of Judicial Conduct of Mississippi Judges. These canons state:
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.
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.
(B) A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.
A Judge Should Refrain from Political Activity Inappropriate to His Judicial Office.
(1) A candidate, including an incumbent judge, for a judicial office that is filled either by public election between competing candidates or on the basis of a merit system election;
(a) should maintain the dignity appropriate to judicial office, and should encourage members of his family to adhere to the same standards of
political conduct that apply to him; . . .
The Commission issued its "Commission's Findings of Fact and Recommendations" on March 11, 1988, recommending a public reprimand. While this Court commends the Commission for its diligence, we find that this case does not compel public reprimand.
The background of the charge against Judge Baker is long and arduous. Judge Baker was accused of wrongdoing by an attorney, Christian Goeldner. Goeldner was suspended from the practice of law for two years as a result of Judge Baker's report of unethical activities. Goeldner v. Miss. State Bar Ass'n., 525 So.2d 403 (Miss. 1988).
These charges against Goeldner arose in 1984, from a bill submitted to the Conservator of Ms. Florence Middleton. Chancellor Baker did not allow the hourly fee originally charged by Goeldner. A subsequent bill showed "padded" hours at the lower fee which resulted in approximately the same charge.
Christian Goeldner's trial before the Tribunal for the Central Supreme Court District was held on April 10, 1986. At this trial, it was determined that Goeldner should be disbarred. This Court suspended Goeldner.
Twenty-three (23) charges were lodged by Goeldner against Chancellor Baker in March of 1986. These allegations were distributed to the Memphis Commercial Appeal by Goeldner, and published in that paper on March 1, 1986, contrary to Rule 4, Rules of Mississippi Commission on Judicial Performance.
The Judicial Performance Commission investigated all of the Goeldner allegations. Of the twenty-three (23) charges levied by Goeldner against Judge Baker, twenty-one (21) were dismissed as totally groundless; the other two, after extensive hearing, were found insufficient to warrant public reprimand.
The investigation of the Goeldner allegations by the Judicial Performance Commission coincided with a contested election campaign for the post of Chancellor of the Third Chancery District, the post occupied by Judge Baker since 1978. (This election has been enjoined by the federal court). Judge Baker's opponent in the election was an attorney from Grenada, Mississippi. During the investigation of the Goeldner charges, an incident of alleged campaign impropriety was charged in Grenada County.
The campaign incident involved a phone call from Judge Baker to John Grantham on May 9, 1986.
John Grantham had been divorced in September of 1984. In this divorce, styled "Judy Boyd Grantham versus John Leland Grantham, Sr., Grenada County Chancery Court Cause No. 83-12-303," Dennis Baker was the presiding chancellor. The divorce itself was final at the time of the telephone call in question.
This divorce was not amicable, but had resulted in extensive litigation. As a result of the divorce the child of this marriage had experienced severe emotional problems. Chancellor Baker had personally attempted to resolve the conflict between John Grantham and his daughter on several occasions.
In March of 1986 a petition for modification of the divorce settlement was filed by John Grantham; Judy Grantham cross-filed. A hearing was held on these petitions on Friday, March 21, 1986. This hearing was not completed on that day, but was orally continued until June 4, after the scheduled election. The continued case was not docketed, however, and the only record of the continuance is in the transcript of the record.
The telephone call from Chancellor Baker was made while this cause was continued. The case was continued again in June and no action had been taken at the time of the hearing on Chancellor Baker's conduct.
Some time after May 9, 1986, the Judicial Performance Commission amended its charge to include the Grantham matter. Judge Baker cooperated fully in the investigation and proceedings before the Judicial Performance Commission.
When notified of the possible impropriety of the Grantham phone call, Judge Baker checked his personal files and found no file on Grantham. He then checked the court docket and found no Grantham matters pending. It was only after checking the transcript of the March hearing that Judge Baker found that the matter was still pending.
Judge Baker made an "Offer of Judgment" on August 28, 1987 to accept judgment entered by the Commission by way of private admonition or reprimand. This offer was declined. A panel consisting of three persons, Circuit Judge Arthur B. Clark, Jr., Chancellor John C. Love, Jr. and Elizabeth Powers, held hearings on September 21, 1987 and December 9, 1987, and
issued its opinion on January 20, 1988. By a two-to-one vote, the panel concluded that Judge Baker's offenses were the result of poor judgment and poor communications, and that a private reprimand was in order. The two judges voted for a private reprimand. A copy of this "Committee Findings of Fact and Recommendation" was forwarded to Judge Baker.
On March 11, 1988, the Commission issued its final "Commission Findings of Fact and Recommendation." This document recommended a public reprimand and stated that the Commission by a five-to-two vote recommended public rather than private reprimand. It further stated that the minority favoring the private reprimand consisted of the two members of the designated panel who had initially recommended the private reprimand, Judges Clark and Love.
On May 2, 1988, while the record of the Commission's proceedings was being prepared for filing with the Supreme Court, Judge Baker filed with this Court a "Motion to Retain Confidentiality of Judge's Identity with Regard to Proposed Public Reprimand Pending Supreme Court Review." On May 24, 1988, by a vote of seven-to-two, the Motion to Retain Confidentiality of Judge's Identity Pending Supreme Court Review was denied.
On June 7, 1988, the record, findings of fact and recommendation were filed by the Commission with this Court. The recommendation of public reprimand, with Judge Baker identified by name, was promptly disseminated through the news media. Articles appeared in the Memphis Commercial Appeal, June 8, 1988; the Grenada Daily Sentinal Star, June 8, 1988; and the Jackson Clarion-Ledger, June 8, 1988.
According to the Associated Press (AP) and United Press International (UPI) articles, reported in the Commercial Appeal and Daily Sentinal Star, respectively, the Commission's Executive Director talked with AP and UPI wire service reporters concerning the charges and recommendation. "The Mississippi Commission on Judicial Performance found . . . said Brant Brantly, [sic] the Executive Director of the Commission." "The Commission voted 5-2 to recommend the reprimand, Brantly [sic] said." AP news article reported June 8, 1988, in the Commercial Appeal; "Executive Director Brant Brantley said the Commission found that while campaigning for re-election . . . ." UPI news article reported in June 8, 1988 Daily Sentinal Star.
STANDARD BY WHICH A JUDGE IS TO BE JUDGED
The commentary to Canon 2 of the Code of Judicial
Conduct of Mississippi Judges, states:
Public confidence in the judiciary is eroded by irresponsible or improper conduct of judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
The Commission found that Judge Baker's conduct fails to conform to the high standard required of a judge and did not uphold the integrity and independence of the judiciary but rather created an appearance of impropriety. While not disputing the Commission's position, we note that: "not every failure of a judge to conform to the standards of the Code amounts to judicial misconduct or merits formal discipline." Matter of Alvino, 100 N.J. 92, 494 A.2d 1014 at 1016 (1985).
While judges are held to the very highest standards of performance in this state, they are not infallible. It was never intended that each and every failure to conform to the standards of the Code would lead to judicial discipline. Id.
DOES JUDGE BAKER'S CONDUCT CONSTITUTE CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE?
Section 177A was ratified on November 6, 1979. It reads in part:
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: . . . (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute . . . .
The Commission's recommendation states that Judge Baker's act of contacting Grantham is conduct prejudicial to the administration of justice which brings the judicial office
into disrepute in that he violated Canons 1, 2A, 2B and 7B(1)(a) of the Code of Judicial Conduct of Mississippi.
Judge Baker contends that this contact was made without knowledge or intent of impropriety and does not warrant public reprimand under 177A.
There is no simple, black-letter definition of conduct prejudicial to the administration of justice which brings the judicial office into disrepute. The Maryland Supreme Court, in In re Diener and Broccolino, 268 Md. 659, 304 A.2d 587 (1973), cert. denied, 415 U.S. 989, 94 S. Ct. 537, 38 L.Ed.2d 328 (1974) said:
Precisely what "conduct prejudicial to the proper administration of justice" is or may be, in any or all circumstances, we shall not undertake to say. Indeed, a comprehensive, universally applicable definition may never evolve but it is unlikely we shall ever have much trouble recognizing and identifying such conduct whenever the constituent facts are presented.
The Nebraska Supreme Court, in defining language identical to that of our 177A, went into more depth and detail in the case of In re Kneifl, 217 Neb. 472, 351 N.W.2d 693 (1984). *fn1 The Nebraska Court found that:
Conduct which falls short of reaffirming one's fitness for the high responsibilities of judicial office constitutes conduct prejudicial to the administration of justice that brings the judicial office into disrepute. See Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 515 P.2d 1, 110 Cal.Rptr. 201 (1973), cert. denied 417 U.S. 932, 94 S. Ct. 2643, 41 L.Ed.2d 235 (1974). It includes conduct which would justify a reasonable man in believing that a result achieved by a judge was achieved because of his position and prestige, see In re Foster, 271 Md. 449, 318 A.2d 523 (1974), and conduct which would appear to an objective observer to be not only unjudicial but prejudicial to public
esteem for the judicial office. In re Edens, 290 N.C. 299, 226 S.E.2d 5 (1976). It depends not so much on the judge's motives but more on the conduct itself, the results thereof, and the impact such conduct might reasonably have upon knowledgeable observers. In re Stuhl, 292 N.C. 379, 233 S.E.2d 562 (1977). The "judicial office" refers not to the judge as an individual but, rather, to the judiciary. Matter of Dalessandro, 483 Pa. 431, 397 A.2d 743 (1979). Conduct prejudicial to the administration of justice that brings the judicial office into disrepute is less grave than willful misconduct in office. ...