OF JUDGMENT: 01/09/2019
MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE HON. KENT
McDANIEL TRIAL JUDGE
ATTORNEYS FOR APPELLANT: MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE BY: DARLENE D. BALLARD RACHEL W. MICHEL MEAGAN C.
ATTORNEY FOR APPELLEE: FRANK SUTTON (PRO SE)
The Mississippi Commission on Judicial Performance (the
"Commission") recommends that the Court publicly
reprimand and assess a $500 fine against Judge Frank Sutton,
a justice court judge for Post Three in Hinds County. The
Commission made this recommendation after finding by clear
and convincing evidence that Judge Sutton's conduct
constituted misconduct in violation of the Code of Judicial
Conduct as well as Section 177A of the Mississippi
Constitution of 1890.
We agree with the Commission that Judge Sutton's conduct
constituted misconduct. We disagree with the Commission's
imposition of sanctions. Instead, we order a public
reprimand, fine Judge Sutton $500 and suspend Judge Sutton
for thirty days without pay.
AND PROCEDURAL HISTORY
Based on complaints against Judge Sutton, the Commission
initiated an inquiry into his role in two matters. This
investigation led to the Commission's filing a formal
complaint. Judge Sutton did not file an answer to the
complaint; instead, he and the Commission stipulated to
agreed facts. The Commission then unanimously adopted those
facts in its findings of fact and recommendation. The
Commission recommended that Judge Sutton be publicly
reprimanded and fined $500.
On January 31, 2018, Investigator Nick Brown with the Hinds
County Sheriff's Department arrested and charged Amanda
Howard with prostitution. Howard's hearing was scheduled
for February 22, 2018. The day after Howard's arrest,
Michael Liddell approached Judge Sutton in court and asked
Judge Sutton if he could help Liddell with the charges
pending against Howard. That afternoon, Judge Sutton called
Investigator Brown and asked him if he could "help him
out" on the prostitution charge against Howard because
he knew her family. Investigator Brown told Judge Sutton that
he would not "help him out" with the prostitution
charge. That same day-February 1, 2018, Judge Sutton, sua
sponte and without a hearing, remanded Howard's
prostitution charge to the file, subject to recall.
On June 26, 2018, Investigator Keith Burnett, with the Hinds
County Sheriff's Department, arrested Barry Jones and
charged him with possession of marijuana. Jones's mother,
who is a parishioner at Fairfield Missionary Baptist Church
where Judge Sutton serves as pastor, approached Judge Sutton
and asked if he could help Jones. Judge Sutton called
Investigator Burnett and inquired about Jones's arrest
and pending charges. Judge Sutton asked about the weight of
the marijuana collected from Jones and whether the charge was
a misdemeanor or felony. Investigator Burnett informed Judge
Sutton that 35.2 grams of marijuana had been collected from
Jones's apartment and that he was charging Jones with
"Possession of a Controlled Substance Felony." The
record is silent as to what Judge Sutton did with this
Section 177A of the Mississippi Constitution provides, in
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 . . . .
Miss. Const. art. 6, § 177A.
In a judicial-performance case, this Court conducts an
independent review of the entire record and "makes the
final determination as to the appropriate action to be taken
when a judge has committed willful misconduct or conduct
prejudicial to the administration of justice that brings the
judicial office into disrepute." Miss. Comm'n on
Judicial Performance v. Skinner, 119 So.3d 294,
299 (Miss. 2013) (citing Miss. Comm'n on
Judicial Performance v. Thompson, 80 So.3d 86, 88
(Miss. 2012)). Making the final determination, the Court
"may accept, reject, or modify, in whole or in part, the
findings and recommendation of the Commission." R. Miss.
Comm'n on Judicial Performance 10E. Further, the Court is
not bound by a joint recommendation between the Commission
and the judge. Skinner, 119 So.3d at 299 (citing
Miss. Comm'n on Judicial Performance v.
Sanford, 941 So.2d 209, 217-18 (Miss. 2006)).
"To impose sanctions, the Court 'must find clear and
convincing evidence of misconduct.'" Miss.
Comm'n on Judicial Performance v. Shoemake,
191 So.3d 1211, 1216 (Miss. 2016) (quoting Miss.
Comm'n on Judicial Performance v. Carver,
107 So.3d 964, 969 (Miss. 2013)).
Willful misconduct and conduct prejudicial to the
administration of justice that brings the
judicial office into disrepute
The Commission and Judge Sutton agreed that he violated
Canons 1, 2A, 2B, 3A, 3B(1), 3B(2), 3B(8), 3B(11), 3C(1),
3E(1) and 4A of the Code of Judicial Conduct. We agree, but
we add that Judge Sutton violated Canon 3B(7) as well.
The Court has discussed willful misconduct and conduct
prejudicial to the administration of justice:
Willful misconduct in office is 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. It involves more than an error of judgment or a mere
lack of diligence. Necessarily, the term would encompass
conduct involving moral turpitude, dishonesty, or corruption,
and also any knowing misuse of the office, whatever the
motive. However, these elements are not necessary to a
finding of bad faith. A specific intent to use the powers of
the judicial office to accomplish a purpose which the judge
knew or should have known was beyond the legitimate exercise
of his authority constitutes bad faith . . . .
Willful misconduct in office of necessity is conduct
prejudicial to the administration of justice that brings the
judicial office into disrepute. However, a judge may also,
through negligence or ignorance not amounting to bad faith,
behave in a manner so as to bring the judicial office into
Miss. Comm'n on Judicial Performance v. Boykin,
763 So.2d 872, 874-75 (Miss. 2000) (quoting In re
Quick, 553 So.2d 522, 524-25 (Miss. 1989)).
Canon 1 of the Code of Judicial Conduct provides,
An independent and honorable judiciary is indispensable to
justice in our society. A judge should participate in
establishing, maintaining, and enforcing high standards of
conduct, and shall personally observe those standards so that
the integrity and independence of the judiciary will be
preserved. The provisions of this Code should be construed
and applied to further that objective.
Judge Sutton's contacting the investigators, his sua
sponte actions on behalf of Howard and his conversation
with Jones's mother violated the "high standards of
conduct" required by Canon 1. Further, his actions did