Mississippi Commission on Judicial Performance v. Albert G. Gibson, Jr.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-JP-00442-SCT
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
v.
ALBERT G. GIBSON, JR.
DATE OF JUDGMENT:
2/25/2004
TRIAL JUDGE:
HON. PATRICIA D. WISE
COURT FROM WHICH APPEALED: COMMISSION ON JUDICIAL
PERFORMANCE
ATTORNEY FOR APPELLANT:
LUTHER T. BRANTLEY, III
ATTORNEY FOR APPELLEE:
PRO SE
NATURE OF THE CASE:
CIVIL - JUDICIAL PERFORMANCE
DISPOSITION:
PUBLIC REPRIMAND, PAYMENT OF
COSTS, AND A FINE - 09/16/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1.
The Mississippi Commission on Judicial Performance has recommended that
Municipal Court Judge Albert G. Gibson, Jr. of Derma, Mississippi be publicly reprimanded
and assessed costs of the proceedings against him for dismissing, without notice or hearing,
a fine imposed by another municipal court judge in his jurisdiction. We adopt the
recommendation of the Commission and Judge Gibson to the extent that they propose public
reprimand as well as assessing costs of these proceedings ($100). We further impose a fine
against Judge Gibson of $330.00, the amount lost by the City of Derma in fines and court
costs as a result of his actions.
FACTS
¶2.
In August of 1994, Floyd Yates was charged with driving while his license was
suspended. Yates failed to appear in court, and Derma Municipal Court Judge Jimmy Vance
continued the case until September. Yates again failed to appear in September, and Judge
Vance found him guilty and fined him $200 plus $22.50 in court costs.
¶3.
In June of 1997, Judge Vance cited Yates for contempt of court for failure to pay the
fine and imposed an additional fine of $107.50. In April of 1998, a ten-day notice of failure
to pay was sent to Yates, and the next month the Derma Municipal Court suspended Yates'
drivers license. In February of 2003, Derma Municipal Court Judge Albert G. Gibson, Jr.
set aside the judgments by Judge Vance without any notice or hearing.
ANALYSIS
Standard of Review
¶4.
We conduct de novo review of judicial misconduct proceedings, giving great
deference to the findings, based on clear and convincing evidence, of the recommendations
of the Mississippi Commission on Judicial Performance. Miss. Comm'n on Judicial
Performance v. Gunn, 614 So. 2d 387, 389 (Miss. 1993). While we do give great deference
to the Commission's findings, we are also charged to render an independent judgment. Miss.
Comm'n on Judicial Performance v. Peyton, 645 So. 2d 954, 956 (Miss. 1994). We are the
trier of fact and have the sole power to impose sanctions in judicial misconduct cases. Id.
Whether Judge Gibson Acted Inappropriately
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¶5.
The Commission found that Judge Gibson's conduct violated Section 177A of the
Mississippi Constitution of 1890 as amended, in that he engaged in "willful misconduct in
office" and "conduct prejudicial to the administration of justice which brings the judicial
office into disrepute[.]" Miss. Const. art. 6, § 177A (b) & (e). In regard to what actions
constitute willful misconduct in the judicial office, we have held:
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. . . . 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.
In re Quick, 553 So. 2d 522, 524-25 (Miss. 1989).
¶6.
Judge Gibson has agreed to the Commission's recommendation and has joined the
Commission's motion for approval of its recommendations. Accordingly, the judge's
decision acknowledges that his actions constituted willful misconduct prejudicial to the
administration of justice which brought the judicial office into disrepute, and we need not
make any further findings on this issue.
Appropriate Punishment for Judge Gibson
¶7.
We have publicly reprimanded, assessed the costs of the proceeding, and fined a
judge for acting outside of the scope of her authority when she suspended the sentence of a
former client and placed an inmate on probation after his conviction and sentence had been
affirmed by the court of appeals. Miss. Comm'n on Judicial Performance v. Sanders, 708
So. 2d 866, 877-78 (Miss. 1998); see also Miss. Comm'n on Judicial Performance v.
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Russell, 691 So. 2d 929 (Miss. 1997). In Sanders, we found that public reprimand and a
fine of $1500 were the appropriate punishment for a judge who acted without authority in
usurping the judgments of other state courts. Sanders, 708 So. 2d at 877-78. In determining
whether or what fine to impose, the Sanders Court relied entirely upon the recommendation
of the Commission. Id. at 877. However, in determining the propriety of whether to impose
a public reprimand, the Sanders Court used the Baker test which considers mitigating
factors, along with evidence from the case, that weigh in favor of confidential, private action.
Id.1
¶8.
In Mississippi Commission on Judicial Performance v. Bishop, 761 So. 2d 195, 198
(Miss. 2000), we named Baker's seven-factor test and inaccurately held those factors were
to be used "when determining appropriate judicial sanctions." In fact, as noted above, the
purpose of Baker's test is to determine "whether a reprimand should be public . . . [rather
than a] confidential, private action." Miss. Judicial Performance Comm'n v. Walker, 565
So. 2d 1117, 1125 (Miss. 1990) (emphasis added), citing In re Baker, 535 So. 2d 47 (Miss.
1988). However, our mistaken description of the test highlights the need for a generally
applicable test to provide greater uniformity in regard to the punishments given in judicial
misconduct proceedings.
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Those factors are: (1) The length and character of the judge's public service; (2)
Positive contributions made by the judge to the courts and the community; (3) The lack of
prior judicial precedent on the incident in issue; (4) Commitment to fairness and innovative
procedural form on the part of the judge; (5) The magnitude of the offense; (6) The number
of persons affected; and (7) Whether moral turpitude was involved. Miss. Judicial
Performance Comm'n v. Walker, 565 So. 2d 1117, 1125 (Miss. 1990), citing In re Baker,
535 So. 2d 47, 54 (Miss. 1988).
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¶9.
Today, in line with the spirit of Bishop, we modify Baker to apply generally to the
determination of all sanctions in judicial misconduct proceedings (rather than merely
applying to the question of public reprimand) and examine the appropriateness of such
sanctions based on the following factors: (1) The length and character of the judge's public
service; (2) Whether there is any prior case law on point; (3) The magnitude of the offense
and the harm suffered; (4) Whether the misconduct is an isolated incident or evidences a
pattern of conduct; (5) Whether moral turpitude was involved;2 and (6) The presence or
absence of mitigating or aggravating circumstances.
¶10.
First, there is no evidence on the record of the length or character of Judge Gibson's
public service. Second, as noted above, in Sanders we found that judicial usurpation of the
authority of other state courts deserved public reprimand and a fine of $1500. However, we
note that Sanders is different in that Judge Sanders was cited for two violations while Judge
Gibson's conduct occurred only once. In cases where judges have dismissed fines or tickets,
we have previously held that the appropriate punishment for such conduct is payment of the
amount of fines inappropriately dismissed. See Miss. Comm'n on Judicial Performance
v. Boykin, 763 So. 2d 872 (Miss. 2000). In this case, the amount of lost fines and court costs
to the City of Derma was $330.00. Third, the nature of the conduct was a gross abuse of
Judge Gibson's power to act in his official capacity as a municipal court judge. Fourth, the
record does not show any other incidents that demonstrate that this type of behavior
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Moral turpitude includes, but is not limited to, actions which involve interference
with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or
other such actions which bring the judiciary into disrepute.
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evidences a pattern of conduct by Judge Gibson. Fifth, there was no moral turpitude
involved in the offense. Finally, aggravating circumstances are present in that, along with
dismissing a ticket, Judge Gibson dismissed another judge's order and did so without notice
or hearing. Mitigating circumstances are also present in light of the fact that Judge Gibson
has publicly acknowledged the inappropriateness of his conduct and agrees with the findings
of the Commission.
CONCLUSION
¶11.
Judge Gibson's actions constituted willful misconduct prejudicial to the administration
of justice which brought the judicial office into disrepute. Accordingly, we adopt the
recommendation of the Commission and Judge Gibson to the extent that they have proposed
public reprimand and the cost of these proceedings ($100). The public reprimand shall be
administered in the Calhoun County Circuit Court by the presiding circuit court judge, in
open court with Judge Gibson present on the first day of the next court term after this
decision becomes final. We also fine Judge Gibson $330.00, the amount lost by the City of
Derma in fines and court costs as a result of his actions, and further add that such deplorable
conduct which brings the Mississippi judiciary into disrepute will not be tolerated as it is an
affront to the dignity of all courts.
¶12. CITY OF DERMA MUNICIPAL COURT JUDGE ALBERT G. GIBSON, JR.
SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING
JUDGE OF THE CALHOUN COUNTY CIRCUIT COURT ON THE FIRST DAY OF
THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES
FINAL, SHALL PAY THE COSTS OF THIS PROCEEDING OF $100.00 AND
SHALL PAY TO THE CITY OF DERMA A FINE OF $330.00.
SMITH, C.J., COBB, P.J., CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ AND EASLEY, JJ., NOT PARTICIPATING.
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