Mississippi Commission on Judicial Performance v. Benton Rex Gordon, Jr.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2006-JP-01452-SCT
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
v.
BENTON REX GORDON, JR.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
08/24/2006
HON. PATRICIA D. WISE
COMMISSION ON JUDICIAL
PERFORMANCE
LUTHER T. BRANTLEY
DARLENE D. BALLARD
PRO SE
CIVIL - JUDICIAL PERFORMANCE
PUBLIC REPRIMAND: THIRTY DAY
SUSPENSION AND PAYMENT OF $100.00
IN COSTS - 05/03/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
DICKINSON, JUSTICE, FOR THE COURT:
¶1.
A municipal court judge involved himself in ticket fixing by “passing” fourteen traffic
tickets to the file over the objections of the issuing officer. The Mississippi Commission on
Judicial Performance (“Commission”) filed a formal complaint against the judge alleging
willful misconduct in office and conduct prejudicial to the administration of justice which
brings the judicial office into disrepute. The Commission and judge submitted to this Court
a joint motion for approval of the recommendation of a public reprimand and assessment of
costs.1 In accordance with our constitutional mandate,2 we conduct the following review.
FACTS AND PROCEEDINGS BEFORE THE COMMISSION
¶2.
On or about July 20, 2005, Benton Rex Gordon, Jr., Municipal Court Judge, Union,
Mississippi, approached Officer Melody E. McNall prior to the afternoon court session to
discuss a number of speeding tickets issued by the officer. Judge Gordon explained that
several upset Union residents had contacted him, the police chief, and the clerks of the court
about the citations. Judge Gordon informed Officer McNall that he intended to “pass” all of
the citations to the files and issue warning letters to the defendants instead. Although Officer
McNall expressed her disagreement with this course of action, the defendants were advised
not to appear in court because their tickets had already been “passed” to the files. In total,
Judge Gordon “passed” tickets for fourteen defendants without requiring them to appear in
court.
¶3.
Acting on Officer McNall’s complaint, the Commission filed a formal complaint
against Judge Gordon charging him with “willful misconduct in office and conduct
prejudicial to the administration of justice which brings the judicial office into disrepute” in
1
With regard to this joint motion, we hereby grant in part and deny in part based on the
enhanced sentence imposed pursuant to this opinion.
2
“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: . . . (b) willful misconduct in office; . . . or (e) conduct prejudicial to the administration of justice
which brings the judicial office into disrepute. . . . ” Miss. Const. art. 6, § 177A.
2
violation of Canons 1,3 2A,4 2B,5 3A,6 3B(2),7 3B(7),8 and 3C(1)9 of the Mississippi Code of
Judicial Conduct and Section 177A of the Mississippi Constitution of 1890, as amended.10
The parties reached an agreement on the charges prior to Judge Gordon filing a response, and
they have submitted to this Court a joint motion for approval of the Commission’s
recommendation of a public reprimand and assessment of costs.
3
“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.”
Miss. Code of Judicial Conduct, Canon 1.
4
“A judge shall respect and comply with the law and shall act at all times in a manner that
promotes public confidence in the integrity and impartiality of the judiciary.” Miss. Code of Judicial
Conduct, Canon 2A.
5
“Judges shall not allow their family, social, or other relationships to influence the judges’
judicial conduct or judgment. Judges shall not lend the prestige of their offices to advance the
private interests of the judges or others; nor shall judges convey or permit others to convey the
impression that they are in a special position to influence the judges. . . . ” Miss. Code of Judicial
Conduct, Canon 2B.
6
“The judicial duties of judges take precedence over all their other activities. The judges’
judicial duties include all the duties of their office prescribed by law. . . . ” Miss. Code of Judicial
Conduct, Canon 3A.
7
“A judge shall be faithful to the law and maintain professional competence in it. A judge
shall not be swayed by partisan interests, public clamor, or fear of criticism.” Miss. Code of Judicial
Conduct, Canon 3B(2).
8
“A judge shall accord to all who are legally interested in a proceeding, or their lawyers, the
right to be heard according to law. A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the judge outside the presence of the
parties concerning a pending or impending proceeding . . . .” Miss. Code of Judicial Conduct,
Canon 3B(7).
9
“A judge shall diligently discharge the judge’s administrative responsibilities without bias
or prejudice and maintain professional competence in judicial administration, and shall cooperate
with other judges and court officials in the administration of court business.” Miss. Code of Judicial
Conduct, Canon 3C(1).
10
See footnote 1, supra.
3
DISCUSSION
¶4.
“This Court conducts de novo review of judicial misconduct proceedings, giving great
deference to the findings, based on clear and convincing evidence, of the recommendations
of the [Commission].” Miss. Comm’n on Judicial Performance v. Gunn, 614 So. 2d 387,
389 (Miss. 1993). However, because we “have the sole power to impose sanctions in judicial
misconduct cases,” we are obligated to render an independent judgment on the charges.
Miss. Comm’n on Judicial Performance v. Gibson, 883 So. 2d 1155, 1157 (Miss. 2004)
(citing Miss. Comm’n on Judicial Performance v. Peyton, 645 So. 2d 954, 956 (Miss.
1994)). Even though the Commission’s findings are considered and are given great weight,
this Court is not bound by the findings, and additional sanctions may be imposed. Miss.
Comm’n on Judicial Performance v. Whitten, 687 So. 2d 744, 746 (Miss. 1997).
I.
¶5.
Whether Judge Gordon’s conduct constituted willful misconduct
prejudicial to the administration of justice which brings the judicial
office into disrepute.
Our initial task is to determine whether the Commission appropriately charged Judge
Gordon with willful misconduct, which we have defined as follows:
‘Willful misconduct in office is the improper or wrongful use of the power of
his [or her] 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 [or her] 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.
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However, a judge may also, through negligence or ignorance not amounting
to bad faith, behave in a manner prejudicial to the administration of justice so
as to bring the judicial office into disrepute.’
In re Anderson, 412 So. 2d 743, 745 (Miss. 1982) (quoting In re Nowell, 293 N.C. 235, 24849, 237 S.E.2d 246, 255 (1977) (emphasis in original)).
¶6.
Judge Gordon used his position as Municipal Court Judge to fix tickets by “passing”
them to the file without requiring the defendants to appear in court and over the objections
of the issuing officer. He also engaged in ex parte conversations with defendants. The
Commission determined by clear and convincing evidence that Judge Gordon’s actions
violated Canons 1, 2A, 2B, 3A, 3B(2), 3B(7), and 3C(1) of the Mississippi Code of Judicial
Conduct and Section 177A of the Mississippi Constitution of 1890, as amended. We can find
no error in the Commission’s determination.
¶7.
Whether Judge Gordon’s behavior was actually willful is of no consequence. Miss.
Comm’n on Judicial Performance v. Cowart, 936 So. 2d 343, 347 (Miss. 2006). “The result
is the same regardless of whether bad faith or negligence and ignorance are involved and
warrants sanctions.” In re Anderson, 451 So. 2d 232, 234 (Miss. 1984).
¶8.
This Court historically has taken a firm stance on the practice of ticket fixing. Gunn,
614 So. 2d at 389 (citing In re Hearn, 542 So. 2d 901, 902-03 (Miss. 1989) (judge removed
from office for continuing to fix tickets)). We have, without exception, found such behavior
to constitute misconduct. See, e.g., Cowart, 936 So. 2d at 347 (willful misconduct for judge
to contact an officer and dispose of traffic violations without hearings or notice to the issuing
officer); Miss. Comm’n on Judicial Performance v. Williams, 880 So. 2d 343, 346 (Miss.
2004) (willful misconduct for judge to find four defendants “not guilty” of speeding
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violations before defendants appeared in court or had their cases set for trial); Miss. Comm’n
on Judicial Performance v. Boykin, 763 So. 2d 872, 874 (Miss. 2000) (willful misconduct
for judge to dismiss tickets based on ex parte communications with the defendants without
holding hearings or notifying the issuing officers); Gunn, 614 So. 2d at 389 (willful
misconduct for judge to dismiss traffic tickets without holding hearings or notifying the
issuing officers).
¶9.
Likewise, this Court has repeatedly characterized a judge’s participation in ex parte
communications as willful misconduct. See, e.g., Cowart, 936 So. 2d at 347 (ex parte
communication with plaintiff in a domestic violence case was willful misconduct); Miss.
Comm’n on Judicial Performance v. Blakeney, 848 So. 2d 824, 826 (Miss. 2003) (ex parte
communication with police officer in DUI and drug possession case was willful misconduct);
Boykin, 763 So. 2d at 874 (ex parte communications with multiple defendants in traffic
violation cases was willful misconduct); Miss. Comm’n on Judicial Performance v. Vess,
692 So. 2d 80, 84 (Miss. 1997) (ex parte communications with criminal defendant, arresting
officer, and prosecutor was willful misconduct).
¶10.
In accordance with this precedent, we find that Judge Gordon’s conduct constituted
willful misconduct in office and conduct prejudicial to the administration of justice which
brings the judicial office into disrepute. Accordingly, we adopt the Commission’s findings.
II.
¶11.
Whether Judge Gordon should be publicly reprimanded and
assessed all costs as recommended by the Commission.
The Commission has recommended that Judge Gordon be publicly reprimanded and
assessed all costs associated with this proceeding in the amount of $100. The Commission
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and Judge Gordon have signed an Agreed Statement of Facts and Proposed Recommendation
to this effect, and the agreement was unanimously accepted and adopted by the Commission.
However, “[i]mposing sanctions is left solely to the discretion of this Court,” and we
endeavor to match the sanction with the offense at issue. Cowart, 936 So. 2d at 347.
¶12.
Pursuant to this Court’s holding in Gibson, 883 So. 2d at 1158, this Court must review
the following mitigating factors when determining the appropriateness of a recommended
sanction:
(1)
¶13.
The length and character of the judge’s public service.
The violations at issue occurred during Judge Gordon’s twelfth year as a municipal
court judge. The record is silent as to the character of his service.
(2)
¶14.
A great deal of judicial precedent exists on these issues. See case law cited infra.
(3)
¶15.
Whether there is any prior case law on point.
The magnitude of the offense and the harm suffered.
Judge Gordon’s willful misconduct violated Canons 1, 2A, 2B, 3A, 3B(2), 3B(7), and
3C(1) of the Mississippi Code of Judicial Conduct and Section 177A of the Mississippi
Constitution of 1890, as amended. The violation of multiple Canons and the Mississippi
Constitution itself reflects the seriousness of the misconduct.
¶16.
The harm caused by Judge Gordon’s behavior extended beyond injuries to the
integrity of his judicial office. His conduct compromised in multiple ways the integrity of
Officer McNall, as well as our system of justice. For instance, Judge Gordon’s actions gave
the impermissible (but apparently correct) impression to some Union residents that they had
sufficient influence over him to deny the prosecution a fair opportunity to present its case
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against the defendants at trial. Finally, as stated by the Commission, “the residents of Union,
Mississippi, were deprived of the municipality’s legitimate interest in punishing drivers who
violate the [city’s speed limits].”
(4)
¶17.
Whether the misconduct is an isolated incident or evidences a pattern
of conduct.
The only prior disciplinary matter involving Judge Gordon is an unrelated, informal
Commission action in 1994. Therefore, the record does not demonstrate that Judge Gordon’s
actions evidence a pattern of misconduct.
¶18.
Judge Gordon improperly “passed” fourteen tickets to the file for fourteen different
defendants without requiring any of them to appear in court. This action was taken despite
the clearly voiced objection of the issuing officer. However, these violations were relatively
close in time and were collectively the subject of one disciplinary action against Judge
Gordon.
(5)
¶19.
Whether moral turpitude was involved.
In Gibson, this Court defined moral turpitude to include “actions which involve
interference with the administration of justice, misrepresentation, fraud, deceit, bribery,
extortion, or other such actions which bring the judiciary into disrepute.” 883 So. 2d at 1158
n.2.
The Commission argues that “[t]he act of ‘ticket fixing’ interferes with the
administration of justice by interfering with the judicial process,” and therefore, Gordon’s
conduct involves moral turpitude. See Cowart, 936 So. 2d at 350.
¶20.
The bottom line of this element is that we must determine whether a judge’s conduct
crosses the line from simple negligence or mistake, to willful conduct which takes advantage
8
of a judge’s position for greed or other inappropriate motives. If the conduct willfully
subverts justice, more punishment is warranted. In this instance, we hold that “fixing tickets”
willfully subverts justice; therefore, Judge Gordon has crossed the line of moral turpitude.
(6)
¶21.
The presence or absence of mitigating or aggravating circumstances.
Although there is little in the record before us concerning mitigating or aggravating
circumstances, we find it quite significant that Judge Gordon readily acknowledged his
inappropriate conduct and took responsibility for his actions.
¶22.
The above Gibson factors, when considered together under our standard of review,
lead us to the conclusion that the Commission’s recommendation is insufficient considering
the egregious nature of Judge Gordon’s conduct. We therefore find that the Commission’s
recommendation should be enhanced to provide for a thirty-day suspension.
¶23.
In several prior judicial misconduct cases involving ex parte communications in
conjunction with improper ticket fixing, this Court has found a public reprimand and
assessment of costs to be appropriate. See Williams, 880 So. 2d at 347 (“Often the sanction
for ‘fixing’ tickets is a public reprimand, fine, and assessment of costs.”); Miss. Comm’n
on Judicial Performance v. Warren, 791 So. 2d 194, 196 (Miss. 2001) (imposing a public
reprimand, a $765 fine, and $100 in court costs for “fixing” tickets based on ex parte
communications); Gunn, 614 So. 2d at 388 (adopting Commission’s recommendations for
public reprimand and a $400 fine for a judge who “fixed” eight traffic tickets by writing on
the ticket or docket book that the charges were dismissed).
¶24.
In the instant case, Judge Gordon involved himself in ticket fixing by “passing”
fourteen tickets to the file without requiring the defendants to appear in court and over the
9
specific objections of the issuing officer. This misconduct was precipitated by Judge
Gordon’s ex parte communications with some of the defendants. It is true that, in the past,
this Court has not always required a suspension for similar conduct. However, since Miss.
Comm’n on Judicial Performance v. Sanford, this Court has made it very clear that conduct
akin to Judge Gordon’s warrants a more severe penalty, including a suspension. 941 So. 2d
209 (Miss. 2006). In Sanford, we recognized the need for consistency in imposing sanctions
but held that where egregious conduct is apparent, the appropriate sanction is not only a
reprimand, but also a suspension. Accordingly, Judge Gordon’s conduct was egregious, and
we find that the Commission’s recommendation should be enhanced to provide for a thirtyday suspension.
CONCLUSION
¶25.
For the reasons herein, we find the egregious conduct of Benton Rex Gordon, Jr.,
Municipal Court Judge, Union, Mississippi, constituted willful misconduct in office and
conduct prejudicial to the administration of justice which brings the judicial office into
disrepute pursuant to Section 177A of the Mississippi Constitution of 1890, as amended. The
Joint Motion for Approval of Recommendations filed by the Commission and Judge Gordon
is granted, and accordingly, Judge Gordon is to be publicly reprimanded, suspended for thirty
days and assessed $100 in court costs.
¶26. JUDGE BENTON REX GORDON, JR., MUNICIPAL COURT JUDGE, SHALL
BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE
OF THE NEWTON COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE
NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL; IS
SUSPENDED WITHOUT PAY FOR THIRTY (30) DAYS FROM AND AFTER THE
DATE OF ISSUANCE OF THE MANDATE IN THIS CASE AND ASSESSED
COURT COSTS OF $100.00.
10
CARLSON AND RANDOLPH, JJ., CONCUR. EASLEY AND GRAVES, JJ.,
CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN
OPINION. SMITH, C.J., WALLER AND DIAZ, P.JJ., NOT PARTICIPATING.
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