The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: February 24, 1998
COURT FROM WHICH APPEALED: MISSISSIPPI COMMISSION ONJUDICIAL PERFORMANCE
NATURE OF THE CASE: CIVIL - JUDICIALPERFORMANCE
MOTION FOR REHEARING FILED:
¶1. The Mississippi Commission on Judicial Performance filed a formal complaint against Justice Court Judge R.R. on January 14, 1997, charging him with judicial misconduct in office and conduct prejudicial to the administration of Justice which brings the office into disrepute.
¶2. A hearing was held on October 17, 1997. A commission committee found by clear and convincing evidence Judge R.R.'s conduct constituted willful misconduct in office and conduct prejudicial to the administration of Justice which brings the office into disrepute. Judge R.R. filed objections to the committee's findings. The full commission accepted the recommendation of the committee and voted unanimously that the committee's findings of fact and Conclusions of law be accepted and Judge R.R. should be publicly reprimanded for his actions and taxed with all costs. Judge R.R. lists the following assignments of error:
"I. THERE IS NOT CLEAR AND CONVINCING EVIDENCE THAT JUDGE R.R. VIOLATED CANONS 1, 2A, 2B, 3A(1), AND 3A(3) OF THE CODE OF JUDICIAL CONDUCT OF MISSISSIPPI JUDGES, OR SECTION 177A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED "II. THE COMMISSION DID NOT ALLOW WITNESSES TO BE EXAMINED CONCERNING MITIGATING FACTORS THE COMMISSION AND COURT MUST CONSIDER, AND DID NOT ALLOW CHARACTER WITNESSES TO TESTIFY "III. THE COMMISSION USED OTHER ABUSIVE AND OVERLY AGGRESSIVE TACTICS AND DID NOT FOLLOW ITS RULES"
¶3. The Mississippi Commission on Judicial Performance filed a formal complaint against Justice Court Judge R.R. on January 14, 1997, charging him with willful misconduct in office and conduct prejudicial to the administration of Justice which brings the office into disrepute. The charge arose from a complaint filed by C.C., a deputy clerk in the Justice Court. A hearing was held before a three member panel on October 17, 1997.
¶4. Count I alleged Judge R.R. committed sexual harassment against C.C.. Count II alleged inappropriate comments toward a member of the public, but was dismissed upon motion of the Commission. Count III alleged the conduct in Counts I & II constituted willful misconduct in office and conduct prejudicial to the administration of Justice.
¶5. C.C.'s complaints seem to be grounded in four areas: Judge R.R.'s touching her shoulder; telling her about a sexual dream; conversations in the Justice court office about a pornographic video store in a nearby town; and comments about C.C.'s "checking out" the men in the office and "checking out" Judge R.R.. At the hearing, C.C. was not able to pinpoint the exact dates for any of the incidents though she repeatedly sought to associate the incidents as having taken place during a "fifth week" when no court was held.
¶6. C.C. alleged Judge R.R. touched her on her shoulders several times in spite of being told by both C.C. and deputy clerk B.B. that C.C. did not like to be touched.
¶7. Judge R.R. testified he touched C.C. at least once, possibly more, on the shoulder to get her attention and he probably touched other people in the office the same way for the same reason. He was unsure of the date of the touching and denied that either C.C. or deputy clerk B.B. ever told him C.C. did not like to be touched.
¶8. Deputy clerk B.B., however, testified C.C. told her she did not like to be touched. When she saw Judge R.R. touch C.C. on the shoulder to get her attention, B.B. told him in a light manner that C.C. did not like to be touched. Later she saw Judge R.R. touch C.C. on the shoulder again and then said, "Judge R.R., am I going to have to hit you with a brick? C.C. don't like to be touched." After this exchange, B.B. said she never saw Judge R.R. touch C.C. again. She added that she had never seen Judge R.R. touch anyone else in the office and that she herself had never been touched by him.
¶9. Judge R.R. was alleged to have told C.C. about a sexual dream. According to C.C., Judge R.R. started talking about a dream, saying "You wouldn't believe who I dreamed about . . . You wouldn't believe some of the things she did to me." This and other similar comments led C.C. to believe the dream was sexual in nature and she did not respond.
¶10. Judge R.R. denied he had discussed a dream with C.C.. He admitted, however, he did come to the office and did "mention in the presence of everyone there I had a weird dream." According to Judge R.R., he remembered the incident only because, as he was leaving the courthouse, C.C. asked him, "You are not going to tell me what that dream was about." Judge R.R. testified, "I said no. And she made the comment, Was it about Judge M.M., and laughed. She went in the office. I went to my car and left." Judge R.R. could not recall the contents of the dream but only remembered that it was a weird dream.
C. Offensive Office Conversation and Conduct
¶11. The same week the dream incident occurred, another female employee, a constable, B.B., Judge R.R. and C.C. had a conversation in the office about a video store in a nearby town that carried X-rated movies. C.C. testified that Judge R.R. said he and his wife had been to the store and had watched X-rated movies. She admitted that she took part in the conversation, though she was uncomfortable. C.C. also stated that general conversations among office staff, lawyers, police officers and Judges were common in the office and sometimes those conversations were off color or might have some sexual content, but "not to this extent."
¶12. When asked about sexual conversations in the office, Judge R.R. said there was sexually related banter in the office, but that he did not pay attention to it or act to stop it; that he may have been asked a question and answered a question; but, he always behaved professionally.
¶13. B.B. said she had no personal knowledge of Judge R.R.'s making any sexually related comments to C.C., but said sometimes in the office there is an air of joking around and sometimes sexual things come up. She added that Judge R.R. has participated in those conversations in a joking way and that C.C. usually had some commentary when the sexually related conversations occurred. B.B. recalled that she, Judge R.R., the constable, and the other female employee have talked about porno movies.
¶14. The County Constable testified he had never heard Judge R.R. say anything inappropriate in the presence of the clerks, had not seen Judge R.R. touch C.C. and did not recall a conversation about video tapes .
¶15. C.C. also testified that the only chairs in the office area are the ones for the women who work there, though it is not unusual for police officers or those who have business in the office to sit in any open chair. She alleged that Judge R.R. ". . . would get in my chair and he would swing around in the chair, you know, just playing in the chairs, playing." While sitting in her chair, Judge R.R. would be "just spread-eagle just about."
¶16. According to C.C., Judge R.R. had made a comment about a hole in his blue jeans while sitting in her chair: "He said, I shouldn't have wore these because they have a hole right here, and pointed to his upper - I don't remember his right or his left leg, but it's towards the middle."
¶17. Judge R.R. denied owning a pair of ripped jeans and added that he does not wear jeans on days when he is in court, but he has worn jeans to the court office on other days.
¶18. Regarding C.C.'s chair, Judge R.R. stated that he sat wherever there was a vacant chair, and that included C.C.'s chair. He further stated that sheriff's deputies, patrolmen and constables also sat in the office chairs whenever there was a vacant chair. He was not aware of any problems caused by him or anyone else sitting in the clerks' chairs.
¶19. The constable and a state trooper both testified that officers sit in any of the clerks' chairs in the office whenever there is an empty seat.
¶20. Judge R.R. described a confrontation with C.C. which took place on July 30, 1996. On July 29, Judge R.R. asked C.C. to page a constable to serve a warrant. Before the constable that C.C. paged arrived, another constable came by the office and Judge R.R. told C.C. to give that constable the warrant to serve. The next morning when he came into the office, C.C. yelled at him, "I'm pissed off at you." Judge R.R. was very concerned and asked C.C. what was wrong. Allegedly C.C. answered that she did not like his telling her to do something and then changing his mind. At that point Judge R.R. said she "turned red in the face and water started coming down her eyes. So she just said, Leave me alone." From that point on, Judge R.R. said he noticed things in the office weren't the same. C.C. testified the incident may have happened, but she did not remember it.
¶21. The housekeeper who works about two hours a day at the Justice court remembered C.C.'s yelling at Judge ...