The opinion of the court was delivered by: Sullivan, Presiding Justice
DATE OF JUDGMENT: 12/12/97
COURT FROM WHICH APPEALED: COMMISSON ON JUDICIAL PERFORMANCE
NATURE OF THE CASE: CIVIL - JUDICIAL PERFORMANCE
DISPOSITION REMOVAL FROM OFFICE AND SPENCER TAXED WITH ALL COSTS - 09/17/98
MOTION FOR REHEARING FILED: MANDATE
¶1. Howard Junior "Buster" Spencer is a Justice Court Judge for the Southern District of Prentiss County. After receiving numerous complaints against Spencer, the Commission on Judicial Performance found probable cause to institute a formal complaint of judicial misconduct.
¶2. A formal hearing was held on May 12-16, 1997, and May 22-23, 1997, before a duly appointed committee of the Commission on Judicial Performance. On October 31, 1997, the Committee filed its Findings of Fact and Recommendations, recommending that Spencer be removed from office and that he be suspended from office until Conclusion of the matter. The seven members of the Commission met on December 12, 1997, and voted unanimously to accept and adopt the Committee's findings and recommendations.
¶3. On December 18, 1997, the Commission filed a Petition for Interim Suspension of Justice Court Judge Howard Junior "Buster" Spencer. This petition for interim suspension was granted by this Court on March 12, 1998, effective immediately. In addition to the recommendation of interim suspension, the Commission on Judicial Performance recommends permanent removal from judicial office and the assessment of costs totaling $9,454.92 to Spencer. We agree with this recommendation.
¶4. Spencer was elected to the office of Justice court Judge of Prentiss County in 1995, and assumed judicial office in January of 1996. Shortly after Spencer assumed office the Commission began receiving citizen complaints on Spencer's behavior and conduct in office, as well as complaints from elected and appointed officials of Prentiss County, Mississippi. The amended complaint against Spencer consisted of 34 counts of alleged misconduct. Spencer's defense primarily rested on the allegation that there was a conspiracy against him to have him removed from office, and that this alleged conspiracy was spearheaded by Patilda Maness, the Justice court clerk for Prentiss County in 1995 and 1996. The Commission discredited this conspiracy theory, although it did recognize personal hostility between judge Spencer and Clerk Maness. The Commission found clear and convincing evidence to substantiate 25 counts of personal and professional misconduct.
¶5. The Commission found by clear and convincing evidence that Spencer's conduct violates Canons 1, 2A, 2B, 3A(1), 3A(2), 3A(3), 3A(4), 3A(5), 3B(1), 3C(1), and 5C(1) of the Code of Judicial Conduct of Mississippi judges. Further, the Commission found the conduct exhibited by Spencer violates Section 177A of the Mississippi Constitution, and said conduct constitutes willful misconduct in office, willful and persistent failure to perform the duties of his office, and conduct prejudicial to the administration of Justice which brings the judicial office into disrepute.
¶6. The appropriate standard of review applied to this case is as follows: This Court conducts a de novo review of judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Mississippi Judicial Performance Commission. Although this Court considers the recommendations of the Commission, we are in no way bound by them and may also impose additional sanction.
Mississippi Comm'n on Judicial Performance v. Russell, 691 So.2d 929, 935 (Miss. 1997) (internal citations omitted) (quoting Mississippi Comm'n on Judicial Performance v. Milling, 651 So.2d 531, 535 (Miss. 1995)). One important rule this Court has repeatedly applied is that the Commission recommendations are just that, recommendations, with no binding effect and that this Court conducts a de novo review and is the final arbiter of Commission cases and must "render independent judgment." Mississippi Judicial Performance Comm'n v. Peyton, 555 So.2d 1036, 1038 (Miss. 1990); In re Collins, 524 So.2d 553, 556 (Miss. 1987); In re Garner, 466 So.2d 884, 885-86 (Miss. 1985). I. Did the Commission violate the Due Process Rights of the respondent protected by the Fourteenth Amendment to the United States Constitution and Article 3 Section 14 of the Mississippi Constitution of 1890?
¶7. Spencer's argument that his due process rights were violated contains two principle arguments. First he argues that the procedures and investigation of this matter were in violation of its own rules, including the allegation of ex parte communications by the members of the Commission and the failure to grant his request to appear before the full Commission prior to making its findings of fact and recommendations to this Court. Second, he argues that both Article Six, Section 177A of the Mississippi Constitution of 1890 and the Code of Judicial Conduct are unconstitutionally vague.
A. Procedures of the Commission
¶8. The first argument in part was recently addressed in Mississippi Commission on Judicial Performance v. Russell when this Court found that the composition of the Commission is not unconstitutional. Russell, 691 So.2d at 945-47. This Court further found that the combination of investigative, prosecutorial and adjudicative functions in the Commission does not violate due process. Id. at 945-47. At the beginning of the hearing before a three member panel of the Commission, attorney Lowrey moved to have all three members recuse themselves, in particular Judge Lowrey, the presiding Judge, based on alleged improper ex parte communications. This motion was overruled based on how the Commission is set up and the multiple roles assigned to the Commission. This argument goes directly to the multiple roles of the Commission as investigator and prosecutor. As stated in Russell, "[t]he processes of the Commission do not in and of themselves appear to present an unacceptable risk of bias." Id. at 946. This Court finds, as in the Russell case, that based on these allegations Judge Spencer "has not demonstrated that bias in fact permeates the process." Russell, 691 So.2d at 946.
¶9. Spencer next contends that the Commission violated Rule 5B, 5C and 8E of the Rules of the Mississippi Commission on Judicial Performance. Spencer relies on two newspaper clippings in the local Prentiss County Newspaper to support his contention that the Commission breached the confidentiality requirement of Rule 5B. This is without merit. Although there was an article pertaining to the alleged charges dated December 19, 1996, and another article about the closed hearing near the time of trial, there is no indication that the Commission was in any way responsible for this disclosure.
¶10. Spencer also takes issue with the fact that he was not given the required ninety day notice in Rule 5C that shall be given to the Judge if the initial complaint is not dismissed by the Commission. Spencer contends that the 96-091 complaint by Pamela Hodum was filed more than ninety days prior to any notification to Spencer. Rule 5C of the Rules of the Mississippi Commission on Judicial Performance states, "Failure to make timely notification shall not be grounds for dismissal of any investigation or proceeding."
¶11. Spencer further argues that the Findings of Fact and Conclusions of Law are not timely filed pursuant to Rule 8E of the Rules of the Commission. Therefore he moves to have this Court strike the Finding of Facts and Conclusions of Law. Rule 8E requires the Commission to file its findings within thirty (30) days after the hearing is concluded unless the Commission grants additional time. The record reflects that an order was signed on July 24, 1997, ordering both the Commission and the respondent to file their proposed findings of fact and memorandum of law simultaneously forty five (45) days after a copy of the transcript is received by each counsel. In addition, on September 18, 1997, attorney Lowrey filed a motion for additional fifteen (15) days to complete findings of fact and Conclusions of law. Given these facts, we find that although the technical requirement of Rule 8E may not have been followed, given the ...