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Mississippi Commission on Judicial Performance v. Sutton

Supreme Court of Mississippi, En Banc

July 18, 2019

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE
v.
JUDGE FRANK SUTTON

          DATE 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. BRITTAIN

          ATTORNEY FOR APPELLEE: FRANK SUTTON (PRO SE)

          CHAMBERLIN, JUSTICE

         ¶1. 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.

         ¶2. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶3. 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.

         Count One

         ¶4. 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.

         Count Two

         ¶5. 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 information.

         ANALYSIS

         ¶6. Section 177A of the Mississippi Constitution provides, in part,

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.

         ¶7. 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)).

         I. Willful misconduct and conduct prejudicial to the administration of justice that brings the judicial office into disrepute

         ¶8. 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.

         ¶9. 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 disrepute.

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)).

         ¶10. 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 not ...


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