RICKEY W. THOMPSON
ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, LEE COUNTY DEMOCRATIC PARTY EXECUTIVE COMMITTEE, AND LEE COUNTY ELECTION COMMISSION, AND MARCUS CRUMP
OF JUDGMENT: 09/21/2015
COUNTY CIRCUIT COURT TRIAL JUDGE: HON. WILLIAM A. GOWAN, JR.
ATTORNEYS FOR APPELLANT: JIM WAIDE CARROLL RHODES WILLIE C.
ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY:
KRISSY CASEY NOBILE HAROLD EDWARD PIZZETTA, III WILLIAM C.
MURPHREE GARY L. CARNATHAN
Former Justice Court Judge Rickey Thompson challenges the Lee
County Democratic Executive Committee's decision to
withhold Thompson's name from the general-election ballot
for a new term as a justice court judge, based on the
Court's order removing him from the office of justice
court judge prior to the election. Thompson sought relief
from the Circuit Court of the First Judicial District of
Hinds County; however, the circuit court dismissed
Thompson's case, finding him ineligible for judicial
The primary question presented today is the following: When a
justice court judge is removed from office, what shall be the
duration of the prohibition against the removed person
reentering the office in question? The parties offer two
alternative answers. The Attorney General contends that
removal from office is permanent, and that, once removed from
office, a justice court judge may not return to it by
reelection or otherwise. On the other hand, Judge Thompson
takes the position that removal from office means that the
judge in question must vacate the office but may later return
to it. More accurately, that removal from office cannot
disqualify one from holding the office again in the future,
because Article 6, Section 171 of the Mississippi
Constitution does not list as a requirement for eligibility
to serve that a candidate has never been removed from office.
Persuaded that the phrase "remove from office"
found in Section 177A means a permanent separation between
the individual and the judicial office, we affirm.
Secondary is Thompson's claim that the proper procedures
for removing him from the ballot were not followed, as
neither the Mississippi Commission on Judicial Performance
nor the Lee County Election Commission had authority to
disqualify him. Because we hold that Thompson's removal
was permanent, we need not address whether the proper
procedures for removing him from the ballot were followed.
AND PROCEDURAL HISTORY
Thompson is no stranger to the Court. While Thompson has
served as justice court judge for District 4 of Lee County,
the Court has addressed Thompson's misconduct on three
separate occasions. First, in 2008, the Court held that
Thompson had interjected himself into a criminal matter by
attempting to prevent a warrant from being issued and
executed upon a relative, and we ordered a public reprimand
of Thompson for willful misconduct in office. Miss.
Comm'n on Judicial Performance v. Thompson, 972
So.2d 582, 587, 590 (¶¶ 11, 23) (Miss. 2008),
overruled in part by Miss. Comm'n on Judicial
Performance v. Boone, 60 So.3d 172 (Miss. 2011). Then,
in 2011, we held that Thompson "engaged in six counts of
judicial misconduct prejudicial to the administration of
justice which brought the judicial office into
disrepute." Miss. Comm'n on Judicial Performance
v. Thompson, 80 So.3d 86, 95 (¶ 40) (Miss. 2012).
The Court ordered another public reprimand of Thompson,
suspended him from office for thirty days, and fined him $2,
Most recently, the Court unanimously ordered Thompson's
removal from office, explaining that Thompson had: (1)
"lent the prestige of his office to assist the private
interests of a friend;" (2) deprived a person "of
her right to counsel of her choosing;" (3) kept
"drug court-participants in the drug-court program
longer than the statutorily permitted two years;" (4)
"was not faithful to the law, " and did not
maintain competence in the law; (5) failed to "promote
public confidence in the integrity of the judiciary;"
(6) failed to exercise diligence and impartiality in the
discharge of his administrative duties; (7) accepted
participants "in the Lee County Justice Court Drug Court
from other courts that did not have drug courts" when
explicitly directed not to do so; and (8) deprived
"participants in drug court of their due-process
rights" by signing orders of contempt "without the
persons being properly notified of the charge of contempt or
a right to a hearing and by conducting 'hearings'
immediately after 'staffing meetings' without
adequate time for the persons to have proper counsel or
evidence presented." Miss. Comm'n on Judicial
Performance v. Thompson, 169 So.3d 857, 868-9 (¶
41) (Miss. 2015). Our mandate requiring his removal from
office issued on August 13, 2015.
Interestingly, nine days prior to the issuance of our
mandate, Thompson received fifty- five percent of the vote in
the Lee County Democratic Party Primary for reelection to the
position from which he was removed. Presented with the
results from the primary election and our decision removing
Thompson from office, the Lee County Democratic Party sought
guidance from the Attorney General on how to proceed. The
Attorney General directed that the Lee County Democratic
Party place another person on the ballot, which it did -
candidate Marcus Crump.
Initially, Thompson filed a federal lawsuit seeking a
temporary restraining order and preliminary injunction.
Thompson v. Attorney Gen. of Miss., 129 F.Supp.3d
430 (S.D.Miss. 2015). The federal court held that Thompson
had not demonstrated a "substantial likelihood on the
merits of his claim" and denied his
preliminary-injunction request. Id. at 431. Via a
separate order, the district court dismissed Thompson's
claim without prejudice, suggesting that he file his suit in
Thompson filed a Motion for Temporary Restraining Order and
Preliminary Injunction in the circuit court asking the
circuit court to bar "the Democratic Executive Committee
and Lee County Election Commission from printing general
election ballots which [did] not contain . . . Thompson as
the Democratic Party's [sic] for Lee County Justice Court
Judge, District 4." He argued that Mississippi Code
Section 9-19-17 unconstitutionally created an additional
qualification to run for justice court judge, which violated
Article 6, Section 171 of the Mississippi Constitution. He
also argued that the Lee County Election Commission had
violated his right to due process by failing to follow the
proper statutory procedure for removing a person's name
from the ballot based on his qualifications.
Following a hearing, the circuit court found that Article 6,
Section 171, of the Mississippi Constitution "merely
sets forth general qualifications that must be met and does
not address removal from office." Further, Section
9-19-17 "is in compliance with and follows Miss. Const.
art 6 § 177A." Finally, the circuit court
determined that Thompson's due process rights of notice
and hearing before his removal from the ballot were not
violated by the Court's removal of Thompson from his
Thompson now appeals the circuit court's decision, and he
raises the following two issues on appeal, which we recite
I. Thompson meets only the requirements for office of justice
court judge specified by the Mississippi Constitution.
Therefore, Thompson is eligible to serve as justice court
judge. No statute can vary the qualification for office set
in the state constitution.
II. The procedures provided to remove Thompson from running
for office were not followed. Thus, neither the Mississippi
Commission on Judicial Performance nor the Lee County
Election Commission had the authority to disqualify Thompson.
"This Court applies a de novo standard of review when
addressing a statute's constitutionality."
Commonwealth Brands, Inc. v. Morgan, 110 So.3d 752,
758 (¶ 16) (Miss. 2013) (citing Johnson v. Sysco
Food Servs., 86 So.3d 242, 243 (¶ 3) (Miss. 2012)).
We have explained further that, in reviewing the
constitutionality of a statute, we keep in mind "(1) the
strong presumption of constitutionality; (2) the challenging
party's burden to prove the statute is unconstitutional
beyond a reasonable doubt and (3) all doubts are resolved in
favor of a statute's validity. When interpreting a
constitutional provision, we must enforce its plain
language." Johnson 86 So.3d at 243-44 (¶
3). Finally, "[q]uestions of law, such as statutory
interpretation, are subject to a de novo standard of
review." Tellus Operating Group, LLC v. Texas
Petroleum Inv. Co. 105 So.3d 274, 278 (¶ 9) (Miss.
2012) (citing Laurel Ford Lincoln-Mercury, Inc. v.
Blakeney, 81 So.3d 1123, 1125 (¶ 5) (Miss. 2012)).
Article 6, Section 177A of the Mississippi Constitution,
wherein lie the powers of the Mississippi Supreme Court to
discipline members of the judiciary, provides, in pertinent
part, as follows:
On recommendation of the commission on judicial performance,
the Supreme Court may remove from office, suspend, fine or
publicly censure or reprimand any justice or judge of this
state for: (a) actual conviction of a felony in a court other
than a court of the State of Mississippi; (b) willful
misconduct in office; (c) willful and persistent failure to
perform his duties; (d) habitual intemperance in the use of
alcohol or other drugs; or (e) conduct prejudicial to the
administration of justice which brings the judicial office
into disrepute; and may retire involuntarily any justice or
judge for physical or mental disability seriously interfering
with the performance of his duties, which disability is or is
likely to become of a permanent character.
Miss. Const. art. 6, § 177A (1890). We must determine
what the Constitution means by "remove from
office." If, as the Attorney General contends, removal
from office means permanent removal from the office, such
that one may not return to it in the future, then there is no
conflict between Mississippi Code Section 9-19-17 and the
Constitution for the purpose of today's case.
The parties and the Court have failed to locate any
Mississippi case that authoritatively addresses what Section
177A means by "remove from office, " although, as
discussed below, two superficially address the issue. In
other words, we have no definitive answer as to whether
removal from office is a temporary or a permanent separation
from the office itself. However, the available secondary
sources and persuasive authorities from other jurisdictions
indicate that to be removed from office is, by definition, to
be permanently separated from the office itself.
Suspension and removal are two different judicial sanctions.
Suspension does not prohibit a judge from seeking reelection,
but removal does. Suspension lasts for a specific term of
days, be it 30 days or the remaining days of a judge's
term; removal is permanent because it entails not only
removal from office but also prohibits the removed judge from
again holding judicial office.
48 C.J.S. Judges § 141 (2016).
In Proctor v. Daniels, 2010 Ark. 206, 392 S.W.3d 360
(2010), the Arkansas Supreme Court considered a case very
much like the one sub judice. There, a former
circuit judge who had been removed from office filed to run
as a write-in candidate for the same office from which the
Arkansas Supreme Court had removed him. Id. at 361.
After filing to run, the former circuit judge, Proctor, filed
a pre-election challenge and sought to have Arkansas Code
Section 16-10-410(d) declared unconstitutional. Like
Mississippi Code Section 9-19-13, the Arkansas statute
prohibited any judge removed from office from thereafter
being appointed or elected to serve as a judge. Id.
For reasons that need not be addressed here, the Arkansas
Supreme Court found the statute to be unconstitutional
because the statute impermissibly added to the constitutional
qualifications of a judge. Id. at 363. However, the
Arkansas Supreme Court, relying on the language quoted from
Corpus Juris Secundum above, held that the option of
removal from office found in the judicial-performance section
of the Arkansas Constitution necessarily means permanent
removal. Id. at 364.
We find ourselves persuaded by the Arkansas Court's
reasoning as to the meaning of the pivotal phrase
"remove from office." The office exists
independently of the individual who, for however long, may
fill it. In almost every circumstance, the office in question
existed before the person came to hold it, and it continues
to exist, held by another, after the individual leaves it.
Thompson argues that the Proctor Court
misinterpreted the Arkansas Constitution because "[t]o
remove from office is to remove from the office one currently
holds." We disagree with Thompson's necessary
implication that the office in question ceases upon the
departure of the individual filling it and becomes a new
office upon the arrival of the subsequent officeholder. When,
e.g., a chancery judge enters an order enjoining
certain behavior by a party, the order remains in effect
after the individual judge leaves office because it is a
function not of the individual, but of the office. Cf.
Love v. Barnett, 611 So.2d 205, 207-208 (Miss.
1992) (discussing the effect of first chancellor's oral
ruling when chancellor who succeeded him in presiding over
the case entered a written judgment that differed from the
first chancellor's oral ruling).
Although in Kentucky Judicial Conduct Commission v.
Woods, 25 S.W.3d 470, 474 (Ky. 2000), the Court wrote
that the question of whether ineligibility to hold office
after the expiration of the term during which a judge is
removed was not before it, the Court's writing on the
difference between removal and suspension supports the result
urged by the Attorney General in today's case. The
Woods Court wrote as follows:
Section 121 of the Constitution of Kentucky gives the
Judicial Conduct Commission the authority to take three
different types of actions with regard to judicial misconduct
or unfitness for office. A judge may be retired for
disability, suspended without pay, or removed for good cause.
Although the Constitution does not define removal, the
concept is not arcane and is addressed in the Sixth Edition
of Black's Law Dictionary. Therein, "Removal from
office" is defined as follows:
Deprivation of office by act of competent superior officer
acting within scope of authority. "Suspension" is
the temporary forced removal from the exercise of office;
"removal" is ...