DATE OF JUDGMENT: 05/20/96 TRIAL JUDGE: HON. JOHN C. LOVE, JR. COURT FROM WHICH APPEALED: COMMISSION ON JUDICIAL PERFORMANCE
NATURE OF THE CASE: CIVIL - JUDICIAL PERFORMANCE DISPOSITION AFFIRMED - 2/26/98 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC.
The opinion of the court was delivered by: Roberts, Justice, For The Court:
¶1. On August 11, 1995, the Mississippi Commission on Judicial Performance filed a formal complaint charging Lillie Blackmon Sanders, Circuit Court Judge for the Sixth Circuit Court District of Mississippi, with judicial misconduct. The Commission charged that Judge Sanders violated Canons 1, 2A, 3A(1), 3A(4), and 3B(1), 3C(1)(b), of the Code of Judicial Conduct of Mississippi Judges that constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of Section 177A, Mississippi Constitution of 1890, as amended.
¶2. The formal complaint arose from the post-sentencing release of two prisoners. On December 13, 1995, a three-member panel of the Commission heard the matter. On February 9, 1996, the Commission found that Judge Sanders had engaged in conduct constituting willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute. For these violations the Commission recommended that Judge Sanders be fined $1,500 and be publicly reprimanded.
¶3. This case is substantially identical to this Court's recently published opinion, Mississippi Commission on Judicial Performance v. Russell, 691 So. 2d 929 (Miss. 1997), and therefore is affirmed.
I. DID THE CONDUCT OF JUDGE LILLIE BLACKMON SANDERS CONSTITUTE WILLFUL MISCONDUCT IN OFFICE AND CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE, PURSUANT TO § 177A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED?
II. SHOULD JUDGE LILLIE BLACKMON SANDERS BE PUBLICLY REPRIMANDED, FINED $1,500 AND ASSESSED THE COSTS OF THIS PROCEEDING BY THE MISSISSIPPI SUPREME COURT, PURSUANT TO § 177A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED?
¶4. Lillie Blackmon Sanders was elected and began to serve her term as Circuit Judge for the Sixth Circuit Court District of Mississippi on January 2, 1995. Although not clearly stated in the record, Judge Sanders previously served in the same position during a portion of 1989- 1990.
¶5. Based upon an anonymous complaint, on August 11, 1995, the Mississippi Commission on Judicial Performance filed a formal complaint charging Judge Sanders with judicial misconduct constituting violations of Canons 1, 2A, 3A(1), 3A(4), and 3B(1), 3C(1)(b), of the Code of Judicial Conduct of Mississippi Judges and constituting willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute in violation of Section 177A, Mississippi Constitution of 1890, as amended.
¶6. The alleged judicial misconduct arose from the post-sentencing release of two inmates after the term of court during which they were sentenced. The Commission charged that Judge Sanders, acting in her official capacity, entered an order which suspended the sentence of a former client and entered an order which suspended the sentence and placed another inmate on probation following a mandate from the Mississippi Court of Appeals which affirmed his conviction and sentence. Moreover, the Commission charged that Judge Sanders entered these orders with the knowledge that she lacked both the authority and jurisdiction to do so.
¶7. On October 13, 1995, Judge Sanders filed her answer to the formal complaint. On December 13, 1995, a hearing was held before a Commission committee, comprised of Judge John M. Montgomery, Judge Gaston H. Hewes, Jr. and Margarett E. Steele. The hearing allowed each side to present testimony and material evidence.
¶8. On February 9, 1996, the Commission filed its findings of fact and recommendation. The Commission declared its findings of fact:
Based on the testimony and evidence presented in this cause, the Commission finds the following by clear and convincing evidence, to-wit:
6. The Respondent, in her official capacity as Circuit Court Judge, entered an order on May 9, 1995, in the Circuit Court of Adams County, Mississippi, in Cause No.'s 8945, 8946, and 10016, in which she suspended the sentence previously entered in these cases. The Commission finds that the Respondent did this with the full knowledge that she lacked jurisdiction to enter such orders. The Respondent acknowledges that she did not consider the Uniform Post Conviction Relief Act in these matters and the Commission finds that the time for entering any such orders, other than Post Conviction, had previously run. The Commission also finds that the Respondent was, or should have been, aware of Section 47-7-33 of the Mississippi Code Annotated, Harrgill v. State, 403 So. 2d 867 (Miss. 1981) as well as the Canons of the Code of Judicial Conduct. The Commission finds Judge Sanders' orders violated Canons 1, 2A, 3A(1), 3A(4) and 3B(1) of the Code of Judicial Conduct of Mississippi Judges.
7. The Respondent had represented the defendant in cause No's 8945 and 8946, and then as Circuit Judge entered the order suspending the sentence in each case. The Commission finds that while there was a scrivener's error in the numbers on the orders presented to the Judge, the only cases in Adams County concerning this defendant were those in which the Respondent had represented the defendant. The Commission further finds that previous representations of a defendant should have put the respondent on notice that a close examination of all proceedings involving the defendant would be necessary. By engaging in the aforementioned conduct, the Respondent violated Canons 1, 2A, 3A(1), 3A(4), 3B(1) and 3C(1)(b) of the Code of Judicial Conduct of Mississippi Judges.
8. The Court of Appeals issued a Mandate in a case from Amite County styled Charles H. Spears v. State of Mississippi, #93-KA-00945-COA, which affirmed a six month sentence previously imposed by the trial court. The Respondent, upon motion of the defendant's lawyer, entered an order suspending the jail sentence and placing the defendant on probation. The Commission finds that the Respondent did this with the full knowledge that a trial court lacks any authority to change a Mandate of an appellate court. The Respondent's conduct in suspending the Mandate violated the principles set down in Denton v. Maples, 394 So. 2d 895 (Miss. 1981), Lewis v. State, 414 So. 2d 437 (Miss. 1982), and Canons 1, 2A, 3A(1), 3A(4), and 3B(1) of the Code of Judicial Conduct of Mississippi Judges.
Based upon the foregoing the Commission finds and by clear and convincing evidence that the conduct of the respondent, Judge Lillie Blackmon Sanders, constitutes willful misconduct in office and conduct prejudicial to the administration of Justice which brings the judicial office into disrepute, pursuant to Section 177A of the Mississippi Constitution of 1890, as amended. The Commission recommends to the Mississippi Supreme Court that the Respondent be publicly reprimanded and fined $1,500.00 pursuant to section 177A of the Mississippi Constitution of 1890 and assessed costs.
¶9. The facts, circumstances and hearing testimony relevant to each matter is set forth in the following summaries:
Annie Mae Washington Binion
¶10. The first case in question is that of Annie Mae Washington Binion, Cause Numbers 8945, 8946 and 10016 in the Circuit Court of Adams County, Mississippi. On February 16, 1990, in Cause No. 8945 and 8946, Binion pled guilty to the felony charges of sale of marijuana and sale of valium. Lillie Blackmon Sanders was Binion's counsel of record. Circuit Judge Richard T. Watson accepted the guilty pleas and sentenced Binion to five years imprisonment in Cause No. 8945 and one year imprisonment in Cause No. 8946. Because of Binion's drug addiction, she was allowed to participate in the Regimented Inmate Discipline (RID) program. Judge Sanders testified that she had no further contact with Binion until she took office as Circuit Court Judge.
¶11. On April 26, 1994, Binion pled guilty in Cause No. 10016 to felony shoplifting; Lillie Blackmon Sanders was not counsel of record in this case. Judge Watson again presided. On April 27, 1994, Binion's probation (from Cause Nos. 8945 & 8946) was revoked by Judge Watson. On May 7, 1995, Judge Sanders suspended the sentences in Cause Nos. 8945, 8946 and 10016.
¶12. Judge Sanders testified she began to practice law in 1979, primarily in Adams County. Although she represented Binion in 1990, judge Sanders stated that very little of her law practice consisted of criminal work. Judge Sanders testified, upon taking over as a Judge, she was assigned Judge Watson's old office. On her desk was a motion from Binion's attorney and proposed order suspending her sentence. She spoke with Judge Watson regarding the Binion case and other holdover cases. Judge Sanders stated that in the following months she received several letters from Binion and spoke with Binion's attorney regarding the intent of Judge Watson to release Binion when she completed the alcohol and drug program.
¶13. Judge Sanders stated she knew Binion was a former client of hers and was concerned there might be a conflict of interest. As a result, she went to the circuit clerk's office and pulled Cause No.'s 8945 and 8946 but did not see anything referencing Cause No. 10016. Judge Sanders testified that she was unsure of what she should do, so she called Assistant District Attorney Ronnie Harper and Parole Officer Ronnie Brown for advice.
¶14. Judge Sanders testified that she reviewed the court file for Cause No. 10016 but admitted that she did not review the transcript. After hearing a portion of the transcript from Cause No. 10016, Judge Sanders agreed that there is no question that the circuit court did not retain jurisdiction in Cause No. 10016. However, Judge Sanders stated personal conversations with Judge Watson led her to believe the court had retained jurisdiction. Judge Watson was not called as a witness to verify this testimony.
¶15. Judge Sanders testified that an informal Discussion, in chambers, regarding Binion's release was held between Judge Sanders, counsel for Binion and Assistant District Attorney Ronnie Harper. No record or transcript of the meeting was taken. Harper stated the District Attorney's office would not pursue another unrelated charge against Binion and did not have any objection to the order suspending sentence. After this meeting, Judge Sanders instructed the court administrator to type the May 10, 1995, order which suspended Binion's sentence. Unknown to Judge Sanders, the court administrator transposed the Cause No.'s from 8945 and 8946 to 9845 and 9846. Judge Sanders testified that after she signed the order she did not look any further into the matter. Judge Sanders stated she did not know she was entering an order in the same matter in which she had represented Binion. Judge Sanders admitted she could have directed the circuit clerk to pull all cases involving Binion, and to discover if there were actually four prior convictions to Cause No. 10016 or just the two convictions.
¶16. Next, Judge Sanders stated the Department of Corrections had sent a letter (not produced at the hearing) indicating Binion had completed the drug and alcohol program and requested "some kind of order." Judge Sanders knew Binion had been convicted for felony shoplifting and sentenced to five years imprisonment in Cause No. 10016. Judge Sanders testified she assumed Judge Watson had retained jurisdiction for one year, although, by her own admission, no jurisdiction was retained.
¶17. On May 29, 1995, Joe Goff from the Attorney General's Office called judge Sanders and informed her she had no jurisdiction to suspend the sentence. After their conversation, Judge Sanders researched the jurisdiction and discovered she had none. At this time, she learned that the Cause No.'s had been transposed by the clerk from 8945 and 8946 to 9845 and 9846. Judge Sanders pulled the files and realized she had entered an order suspending a sentence for a client she had represented in the same matter. On May 30, 1995, Judge Sanders entered an order rescinding the May 9, 1995, order that suspended Binion's sentence and granted probation.
¶18. Judge Sanders stated she did not know until the summer of 1995 a convicted felon is not eligible for probation on a subsequent offense. Counsel for Judge Sanders stipulated Denton v. Maples, 394 So. 2d 895 (Miss. 1981), and Harrigill v. State, 403 So. 2d 867 (Miss. 1981), prohibit modifying, changing or suspending a sentence of a felony after the term of court. Judge Sanders stated she did not speak with anyone regarding the appearance of impropriety of her hearing Binion's case.
¶19. When asked if she had read the Judicial Canons, and if the Canons prohibited her from hearing cases and motions, as those involving former clients like Binion, Sanders testified,"I was--I went back and I did look at the Canons, and it did not--from the Canons it did not appear that I was disqualified from hearing cases." She stated in reviewing the court file of Cause No. 10016, she did not read the indictment which listed Binion's prior convictions in Cause No.'s 8945 and 8946. Judge Sanders stated she does not think acting in Cause No. 10016 pertaining to a former client created an appearance of impropriety. Judge Sanders stated, "I view that as having your former law partners appear before you in -- in situations. And if it's something that if enough time has passed between that -- and in this particular case, a period of five years had expired between the time that I had last represented -- well, the time I represented her. There was no ongoing relationship or ongoing ...