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Mississippi Commission on Judicial Performance v. Bowen

Supreme Court of Mississippi, En Banc

October 3, 2013

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE
v.
EDDIE H. BOWEN

DATE OF JUDGMENT: 04/24/2013.

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE HON. H. DAVID CLARK, II, JUDGE.

ATTORNEYS FOR APPELLANT: DARLENE D. BALLARD JOHN B. TONEY.

ATTORNEY FOR APPELLEE: SAM S. THOMAS.

LAMAR, JUSTICE.

¶1. In this judicial-misconduct case, Eddie H. Bowen, Circuit Court Judge for the Thirteenth District, State of Mississippi, failed to disclose a conflict to the parties in a civil lawsuit and failed to rule on counsel's motion to recuse made after the conflict was discovered. The Mississippi Commission on Judicial Performance (Commission) recommends, in a joint motion for approval of recommendations, that Judge Bowen be publicly reprimanded and assessed costs in the sum of $200 under Section 177A of the Mississippi Constitution of 1890, as amended, (Section 177A) and Rule 10A of the Rules of the Mississippi Commission on Judicial Performance. After reviewing the record, we find that the recommended sanctions are insufficient. We order that Judge Bowen be publicly reprimanded, fined $500, and assessed costs in the amount of $200.

FACTS AND PROCEDURAL HISTORY

¶2. In January 2012, the Commission filed a formal complaint against Judge Bowen, charging him with judicial misconduct constituting a violation of Section 177A. Judge Bowen filed his answer to the complaint on May 29, 2012. An agreed statement of facts and proposed recommendation were filed by the parties on February 4, 2013.

¶3. According to the agreed facts, in early April 2011, Judge Bowen commenced a trial in the matter of Brown v. Phillips 66 Co., Union Carbide Corp., et al., Smith County Circuit Court Civil Action No. 2006-196. Brown sought damages from the defendants based on his alleged exposure to asbestos. During jury selection, Judge Bowen preemptively struck, for cause, all prospective jurors who had family members within the first degree of consanguinity who had been screened for an asbestos-related disease or had made a claim for injuries related to asbestos exposure.

¶4. After two weeks of trial, Judge Bowen mentioned to the attorneys in chambers that his father might have been tested for asbestosis, but he did not make such a disclosure on the record. When the defendants requested the name of Judge Bowen's father, he refused to relate it. Defendants later determined, after conducting their own investigation, that Judge Bowen's father had filed two asbestosis lawsuits and that both Judge Bowen's mother and father had settled asbestosis claims with Union Carbide and other Defendants. Defendants also found that Judge Bowen's father had submitted a claim to the bankruptcy trustee for Union Carbide's asbestos supplier.

¶5. After the trial, Union Carbide filed a motion requesting that Judge Bowen recuse himself. Judge Bowen did not rule on the motion within the thirty days required by Rule 1.15 of the Uniform Rules of Circuit and County Court Practice (URCCC). Based on Judge Bowen's failure to rule on the motion to recuse, Union Carbide appealed to this Court. In an en banc order, Union Carbide Corp., et al. v. Brown, No. 2011-M-00874, we removed Judge Bowen from the case based on his refusal to provide information about his father, his decision to preemptively strike all prospective jurors with family members who had asbestos-related claims, the history of asbestosis claims filed by Judge Bowen's parents, and the settlement between Judge Bowen's father and Union Carbide. We found that a reasonable person, knowing all the circumstances, would have doubts regarding Judge Bowen's impartiality in the case.

¶6. The Commission accepted the agreed facts and found by clear and convincing evidence that, by engaging in such conduct, Judge Bowen violated Canons 1, [1] 2A, [2] and 3E(1)(a)[3] of the Code of Judicial Conduct of Mississippi. The Commission also found by clear and convincing evidence that Judge Bowen's conduct constituted willful misconduct in office under Section 177A. The Commission now recommends that Judge Bowen be publicly reprimanded under Section 177A and be assessed costs of this proceeding in the amount of $200. Judge Bowen joins the Commission's recommendation.

DISCUSSION

¶7. This Court has the power, "[o]n recommendation of the commission on judicial performance, " to "remove from office, suspend, fine or publicly censure or reprimand any justice or judge of this state for . . . willful misconduct in office . . . or . . . conduct prejudicial to the administration of justice which brings the judicial office into disrepute[.]"[4] Willful misconduct in office includes "the improper or wrongful use of power of his office by a judge acting intentionally, or with gross unconcern for his conduct and generally in bad faith."[5] "However, a judge may also, through ...


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