The opinion of the court was delivered by: Roberts, Justice, For The Court
DATE OF JUDGMENT: 02/13/98
COURT FROM WHICH APPEALED: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE
NATURE OF THE CASE: CIVIL - JUDICIAL PERFORMANCE
DISPOSITION AFFIRMED - 9/10/98
¶1. On June 2, 1997, Erik M. Lowrey, Commission Chairman, entered an Order appointing a Formal Commission to conduct a hearing concerning Hyde Rust Jenkins, II (hereinafter "Jenkins"), Chancery Court Judge for the Seventeenth Chancery Court District of Mississippi. On June 5, 1997, the Mississippi Commission on Judicial Performance (hereinafter "Commission") filed a formal complaint charging Jenkins with judicial misconduct constituting 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, Mississippi Constitution of 1890, as amended. It was further alleged that Jenkins had engaged in the practice of law in violation of Miss. Code Ann. § 9-1-25 (Supp. 1997), and § 23-15-975 (Supp. 1997). The Complaint also charged Jenkins with violating Canons 1, 2A, 2B, 3A(1), 3A(4), 3C, 5C(1) and 5F of the Code of Judicial Conduct of the Mississippi Judges. On October 8, 1997, after obtaining a continuance on the hearing of the instant matter, Jenkins filed an Answer to the Formal Complaint. The basis for the Formal Complaint was two counts of alleged misconduct.
¶2. A hearing was held before a duly appointed panel of Commission members in Jackson, Mississippi on October 15 and 16, 1997. At the conclusion of the hearing and subsequent to both parties filing proposed findings of fact and Conclusions of law, the panel concluded that both counts of misconduct were determined to have been proved by clear and convincing evidence. The Committee further recommended that Jenkins be removed from office and assessed the costs accrued in this matter. Thereafter, the Commission by unanimous vote agreed with the findings of the Committee that Jenkins be removed from judicial office and taxed with all costs of this matter in the amount of $2,863.77.
I. DID THE CONDUCT OF JENKINS CONSTITUTE 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?
II. SHOULD JENKINS BE REMOVED FROM JUDICIAL OFFICE AND ASSESSED THE COSTS OF THIS PROCEEDING BY THE MISSISSIPPI SUPREME COURT, PURSUANT TO SECTION 177A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED?
¶3. Jenkins has served as Chancery Court Judge of the Seventeenth Chancery District of the State of Mississippi, which includes Adams, Claiborne, Jefferson and Wilkinson Counties, since October of 1987. He has, since that time, been both privately admonished by the Commission and publicly reprimanded by this Court. See Mississippi Comm'n on Judicial Performance v. Jenkins, 677 So.2d 171 (Miss. 1996).
¶4. Southern Landfill Management, Inc. (hereinafter "SLM") is a Mississippi Corporation owned at least in part by Jack Tomlinson and Robert Hume of Canada, that began negotiations early in the 1990's with Jefferson County, Mississippi for the construction and operation of a solid waste landfill in that county. Jenkins initially met Tomlinson during the time of the negotiations and assisted him in finding property along the Mississippi River that might be used for unloading garbage from barges onto trucks for transportation to the landfill. Apparently Jenkins was initially called because his father owns a dock and storage facility in Vidalia, Louisiana, just across the Mississippi River from Natchez, Mississippi, which possibly could have been adapted for that purpose.
¶5. On April 8, 1993, the Board of Supervisors of Jefferson County were in the process of securing bids for the operation of the Jefferson County Landfill. At this meeting, Jenkins addressed the Jefferson County Board of Supervisors on behalf of Tomlinson and SLM who were still involved in negotiations with the county to purchase the Jefferson County Landfill. The minutes of that board meeting reflect that Jenkins recommended to the Board that it accept SLM's offer. Also, during this same time period, Gerry Winters, a 50% stockholder in Southern Transporters, Incorporated, along with Jenkins, became interested in the garbage collection and hauling business, although those plans did not fully come to fruition until February of 1996.
¶6. In approximately September of 1992, Gill Smith, the attorney for Tomlinson and SLM, initiated negotiations with Marrion Green for the lease or purchase of certain property adjoining the Jefferson County Landfill. The property, a 113-acre tract, was known as the Lucille Fulton or Wesley Fulton land. Green and his sister owned an interest in the property and the other interest was vested in the Estate of Lucille Fulton (Jones), Green's grandmother. On October 21, 1993, Green filed a petition to probate the will of Lucille Fulton which devised her interest in the tract to Katie Ruth Denelli, Green's sister. At the time the will was probated Jenkins was the only Chancery Judge serving Jefferson County. During this time SLM, through Smith, was acquiring purchase options from the Fulton heirs to the interest in the tract in the instance the will was declared invalid. Green's sole purpose, according to him was to try to lease, not sell, all of the property and keep the entire 113 acre tract in his family. Negotiations between Green and Smith became strained and in mid-November, 1993 Odell Anders set up a meeting between Jenkins and Marrion Green. According to Jenkins, Anders called Jenkins out of the blue and told him that Green would like to speak with Jenkins "about the guys at the landfill." Green confirms that Anders set up his initial meeting with Jenkins. At this point the stories begin to differ, although many similar facts are confirmed by both parties.
¶7. According to Jenkins, Green and a friend showed up at his home on November 18, 1993, at 10:00 p.m. Although they had never met before, the judge invited them in and they began drinking gin and talking about hunting. Jenkins stated that he and Green began talking about the landfill and he told Green everything he knew about the landfill and the people who were involved. Green told Jenkins about SLM's proposed offer for the Wesley-Fulton tract and in turn Jenkins told Green that the offer was a good deal. Jenkins recalled that Green informed Jenkins that he needed to get the proposed lease agreement into one document. Green advised the Judge on the details of the lease and Jenkins typed the proposed lease agreement into a cohesive document. According to Jenkins, he left some blank lines in the document and filled in the monetary terms of the lease in his own hand writing later in the evening after which Green took the document and left around 2:30 in the morning. By his own testimony, Jenkins not only typed and wrote the lease, but gave Green certain advice about the purchase of the property.
¶8. Green's recollection of the events of November 18th and 19th, 1993 differ from Jenkins' in two respects. According to Green he saw Jenkins not only at his home on the evening of November 18th and the morning of the 19th, he also conferred in chambers with Jenkins on the afternoon of November 18th and later on the morning of the 19th at the law office of Gill Smith. Green testified that on the afternoon of November 18, 1993, he and his brother, James, met with Jenkins in his chambers at the Adams County Courthouse wherein they discussed the proposed lease of the Wesley Fulton property and the probate of the will of Lucille Fulton. Green recalled presenting the will to Jenkins who make a copy thereof. This was confirmed by James W. Green, Marrion Green's brother. Marrion Green stated that he had to leave for work later that afternoon but he and Jenkins made arrangements for Green to come by Jenkins home later that night to complete the terms of the SLM lease of Green's property. According to Green, the terms of the lease were completed at Jenkins' home when he arrived there at 11:00 p.m. on the same night. It was Green's recollection that once the lease was completed, save the blanks that were not filled in, he left it with the Judge who brought it to the law office of Gill Smith the next morning where they met again.
¶9. On the morning of November 19, 1993, Green, his brother, James, and friend Tony Byrd met with Jenkins, Odell Anders and Gill Smith at Smith's law office. It was at this meeting that the terms of the lease were finalized and Jenkins filled in the monetary amounts per acre in his own handwriting according to Green, his brother and Tony Byrd. This meeting was further substantiated by the testimony of Betty Butler, Green's sister, who spoke with her brothers, Smith and Jenkins on the telephone from her place of employment in Chicago, Illinois. Further confirmation of the meeting was had through the testimony of Gill Smith who recalled that Anders was present but could not say for certain if Jenkins was there.
¶10. Whether Jenkins was at the meeting in Smith's office on the morning of November 19, 1993, is of little consequence in light of the fact that he at least partially drafted the lease, some of which is admittedly in his own hand writing. Moreover, the record supports the supposition that Jenkins had ongoing contact with Green regarding the SLM lease throughout this period of time and during the ensuing will contest. This is especially evident from the testimony of Green and Gill Smith and letters and memoranda forwarded to Green and Jenkins regarding this matter. Smith confirmed that he had written a memoranda to Green stating in part: I have made copies of everything I can think of which would shed some light on your families lease situation with Jack Tomlinson and his corporation, and delivered it to Judge Jenkins, together with a memorandum explaining what each of the documents are. He told me that he had gotten in touch with you and I gathered that since he has now received just about all the material that I have, or copies of it, he will be getting back in touch with you so that you all can sit down and hash this thing out.
This evidence against Jenkins confirms Green's version of the events in which he stated that he met with Jenkins on more than the one occasion. It also lends support to the fact that Jenkins was involved in every aspect of the lease negotiation, as he had copies of every document concerning the matter.
¶11. On December 14, 1993 various heirs of Lucille Fulton filed a petition to contest the will of Lucille Fulton (Jones) in the Chancery Court of Jefferson County, Mississippi, before Judge Jenkins. On May 24, 1994, the will contestants filed their Motion for Summary Judgment. SLM through Gill Smith filed a petition to intervene and Motion to Show Cause in the will contest alleging that SLM would suffer irreparable harm and injury if not allowed to intervene. This Motion was filed on May 31, 1994, requesting the Judge extend the purchase options that SLM had acquired from the will contestants. On June 14, 1994, the options were extended by order of Judge Jenkins for a period of forty-five days subsequent to the final judgment on the will. On November 11, 1994, SLM filed a Motion to Show Cause requesting relief in its negotiations with Green which was granted by Jenkins. On July 14, 1995, Jenkins granted the contestants Motion for Summary Judgment.
¶12. The evidence reveals that Gerry Winters and Jenkins attended at least two public hearings regarding Mississippi Department of Environmental Quality issuing the necessary subtitle D permit for operation of the landfill by SLM. One of these meetings was the final DEQ meeting in Jackson, Mississippi wherein the actual permit was issued to SLM. Furthermore, the record is clear that the Southern Transporters Incorporated, the Jenkins and Winters garbage hauling business, has an ongoing and lucrative relationship with SLM, the same company ...