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Thompson v. Attorney General of State

Supreme Court of Mississippi, En Banc

May 11, 2017

RICKEY W. THOMPSON
v.
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

          DATE OF JUDGMENT: 09/21/2015

         HINDS COUNTY CIRCUIT COURT TRIAL JUDGE: HON. WILLIAM A. GOWAN, JR.

          ATTORNEYS FOR APPELLANT: JIM WAIDE CARROLL RHODES WILLIE C. ALLEN

          ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL BY: KRISSY CASEY NOBILE HAROLD EDWARD PIZZETTA, III WILLIAM C. MURPHREE GARY L. CARNATHAN

          COLEMAN, JUSTICE

         ¶1. 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 office.

         ¶2. 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.

         ¶3. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶4. 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, 000. Id.

         ¶5. 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.

         ¶6. 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.

         ¶7. 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 state court.

         ¶8. 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.

         ¶9. 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 position.

         ¶10. Thompson now appeals the circuit court's decision, and he raises the following two issues on appeal, which we recite verbatim:

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.

         STANDARD OF REVIEW

         ¶11. "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)).

         ANALYSIS

         ¶12. 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.

         ¶13. 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).

         ¶14. 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.

         ¶15. 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).

         ¶16. 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 ...

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