Mississippi Commission on Judicial Performance v. Solomon C. Osborne
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-JP-00454-SCT
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
v.
SOLOMON C. OSBORNE
ON MOTIONS FOR REHEARING
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
03/18/2008
HON. FRANKLIN M. COLEMAN
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
ATTORNEYS FOR APPELLANT:
LUTHER T. BRANTLEY, III
DARLENE D. BALLARD
ATTORNEY FOR APPELLEE:
LEONARD McCLELLAN
NATURE OF THE CASE:
CIVIL - JUDICIAL PERFORMANCE
DISPOSITION:
ONE YEAR SUSPENSION FROM OFFICE
AND ASSESSMENT OF COSTS IN THE
AMOUNT OF $731.89 - 06/18/2009
MOTIONS FOR REHEARING FILED: 02/18/2009; 02/20/2009
MANDATE ISSUED:
EN BANC.
CARLSON, PRESIDING JUSTICE, FOR THE COURT:
¶1.
The motion for rehearing filed by Solomon C. Osborne is denied. However, the
motion for rehearing filed by the Mississippi Commission on Judicial Performance is
granted, in part. Thus, the original opinions are withdrawn, and these opinions are substituted
therefor.
¶2.
In this judicial-discipline case, the Mississippi Commission on Judicial Performance
(“the Commission”) recommends to this Court that, based on his judicial misconduct,
Solomon Osborne, former County Court Judge for Leflore County, should be removed from
office, restrained from ever seeking judicial office again, and assessed with costs of this
proceeding.
FACTS AND PROCEEDINGS BEFORE THE COMMISSION
¶3.
On September 13, 2006, while campaigning for reelection as a county court judge for
Leflore County, Judge Solomon C. Osborne spoke before the Greenwood Voters League, a
predominantly African-American political organization. Portions of his speech appeared the
next day in the local newspaper, The Greenwood Commonwealth. In an article entitled:
“Osborne: Blacks not where we should be. County judge says progress has been made, more
is needed,” the newspaper quoted Judge Osborne as stating:
White folks don’t praise you unless you’re a damn fool. Unless they think
they can use you. If you have your own mind and know what you’re doing,
they don’t want you around.1
¶4.
Forty-eight complaints were filed with the Commission regarding Judge Osborne’s
comments. On February 12, 2007, the Commission filed a formal complaint against Judge
Osborne, alleging willful misconduct in office and conduct prejudicial to the administration
of justice which brings the judicial office into disrepute, thus causing such conduct to be
1
According to the Commission, the statement was made in reference to the
appointment of two local African-Americans to the Greenwood Election Commission by a
Caucasian mayor.
2
actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi
Constitution of 1890, as amended.
¶5.
Judge Osborne, acting as his own attorney,2 answered the complaint and denied
making the statements attributed to him by The Greenwood Commonwealth. He moved the
Commission to dismiss the complaint on the basis that its charge violated the First and
Fourteenth Amendments of the United States Constitution and comparable provisions of the
Mississippi Constitution, averring further that the Commission’s complaint was politically
and racially motivated.
¶6.
The Commission referred the matter to a duly-constituted committee, which held a
formal hearing. Both parties agreed to dispense with an evidentiary hearing on the facts,
allowing instead an agreed statement of the facts to be entered into evidence for a review,
finding, and proposed recommendation. The committee concluded the following:
[T]his Tribunal is convinced by clear and convincing evidence that Judge
Solomon C. Osborne, has violated the following Canons, Statute, and Section
177A of the Mississippi Constitution of 1890, as amended, to-wit:
Canon 1. By making a public inflammatory, derogatory
statement about all people of the White race, thereby eroding
public confidence in the integrity and independence of his
Court.
Canon 2. (A) & (B) By making a public spectacle of himself
and thereby demeaning the prestige of his office.
2
By the time of the subsequent committee hearing, Osborne was represented by
counsel.
3
Canon 3. (B)(5) By publicly announcing manifest bias and
prejudice based on race.
Canon 5. (A)(1)(a) By maintaining membership in, attending
meetings, and promoting the agenda of a political organization.
Statute: Section 97-9-59 Mississippi Code, 1972, Ann. (Perjury)
By making an oath to an untrue, false and improper statement
when Solomon C. Osborne knew his statement was untrue and
false.
Section 177A of the Mississippi Constitution of 1890. By
conducting himself in a way which constitutes wilful
misconduct in office and conduct which is prejudicial to the
administration of justice, bringing his judicial office into
disrepute.
¶7.
The committee filed its findings of fact, conclusions of law, and recommendation with
the Commission on February 15, 2008.
The Commission accepted and adopted the
Committee’s recommendation and thereafter entered its findings of facts, conclusions of law,
and recommendation on March 18, 2008. The Commission found that Judge Osborne’s
behavior violated Canons 1, 2(A), 2(B), 3(B)(5), and 5(A)(1)(a) of the Mississippi Code of
Judicial Conduct, and Section 97-9-59 of the Mississippi Code of 1972, Annotated. The
Commission has recommended to this Court that Judge Osborne be removed from office,
restrained from ever seeking judicial office again, and assessed with costs of this proceeding
in the amount of $731.89.
4
DISCUSSION
¶8.
Judicial misconduct proceedings are reviewed de novo, giving considerable deference
to the findings, based on clear and convincing evidence, of the recommendations of the
Commission. Miss. Comm'n on Judicial Performance v. Boland, 975 So. 2d 882, 888
(Miss. 2008) (Boland I) (citing Miss. Comm'n on Judicial Performance v. Boykin, 763 So.
2d 872, 874 (Miss. 2000)). This Court, however, is obligated to conduct an independent
inquiry. Id. (citing Miss. Comm'n on Judicial Performance v. Neal, 774 So. 2d 414, 416
(Miss. 2000)). Though the Commission’s findings are considered, this Court is not bound
by its findings. Miss. Comm'n on Judicial Performance v. Whitten, 687 So. 2d 744, 746
(Miss. 1997).
I.
¶9.
The role of the judiciary is central to the concept of justice and the rule of law. The
Mississippi Code of Judicial Conduct, through its canons, was established to help ensure the
public’s trust and confidence in the state’s judicial system, and to provide guidance to judges
in maintaining the principal standards of judicial conduct both on and off the bench. This
Court is vested with the authority to discipline any judicial officer for violation of a judicial
canon. Miss. Const. art. 6, § 177A. Enforcement of the canons is essential to the purpose
they serve.
¶10.
Judge Osborne claims First Amendment protection for his speech and for his
attendance before the Greenwood Voter’s League. He challenges the constitutionality of the
Commission’s recommendation that he be punished.
5
¶11.
The Commission responds, arguing that the racial overtones of Judge Osborne’s
comments cast doubt on his integrity, independence, and ability to be fair and impartial in
all matters that come before his court. The Commission asserts that application of the
judicial canons in this case is narrowly tailored to serve a compelling state interest, thus
Judge Osborne’s conduct does not enjoy First Amendment protection.
A. Political organization
¶12.
Beginning with the Commission’s finding that Judge Osborne violated Canon
5(A)(1)(a) by maintaining membership in, attending meetings of, and promoting the agenda
of a political organization, we need not address Judge Osborne’s constitutional argument.3
Based on the record before us, Judge Osborne’s attendance before the Greenwood Voters
League did not violate section 5(A)(1)(a), or any other section of the canons.4 Canon 5(A)(1)
reads in full, as follows:
Except as authorized in Sections 5B(2), 5C(1) and 5C(2), a judge or candidate
for election to judicial office shall not:
(a) act as a leader or hold an office in a political organization;
3
See Kron v. Van Cleave, 339 So. 2d 559, 563 (Miss. 1976) (“courts will not decide
a constitutional question unless it is necessary to do so in order to decide the case”); see also
Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S. Ct. 152, 154, 89 L. Ed.
101 (1944) (If there is one doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on questions of constitutionality
. . . unless such adjudication is unavoidable.).
4
In its formal complaint, the Commission charged Judge Osborne with violating
section A(3)(a), not section A(1)(a) of Canon 5.
6
(b) make speeches for a political organization or candidate or publicly endorse
a candidate for public office;
(c) solicit funds for or pay an assessment or make a contribution to a political
organization or candidate, attend political gatherings, or purchase tickets for
political party dinners, or other political functions.
(Emphasis added.)
¶13.
The Commission’s finding rests solely on what transpired during rebuttal at the formal
hearing for this matter. A committee member queried counsel for Judge Osborne about the
Greenwood Voters League.
The attorney explained he thought it could be fairly
characterized as a non-dues, political organization that meets weekly. When the committee
member asked how one becomes a member, the attorney responded, “Just by attending a
meeting.” The committee member then asked if Judge Osborne therefore was a member.
The attorney said, “Yes.” No further questions were asked about the Voters League.
¶14.
The Commission has misinterpreted and misapplied Canon 5. The canon does not
prohibit membership “per se” in a political organization.5 Rather, as denoted by section
5A(1) and its subsections, the canon prohibits judicial incumbents and judicial candidates
5
The Greenwood Voters League is a predominantly African-American political
organization which regularly endorses candidates sympathetic to the black community.
Jordan v. Greenwood, 534 F. Supp. 1351, 1354 (N.D. Miss. 1982). It is general knowledge
that the League holds weekly meetings in the City of Greenwood, either at public places or
private facilities open to the public, to discuss civic issues. During election cycles, many
candidates running for political office, as well as judicial office, are invited by the League
to speak. There is no evidence in the record demonstrating that the League practices
invidious discrimination on the basis of race, gender, religion, or national origin. See Canon
2C.
7
alike from engaging in certain inappropriate political activity normally associated with such
organizations. See also sections 5B(2), 5C(1), 5C(2) and 5D.
¶15.
There is no evidence in the record that Judge Osborne acted as a leader for, or held
an office in, the Greenwood Voters League, in violation of section 5A(1)(a). Likewise, there
is no indication that Judge Osborne was making a speech on behalf of the Voters League, as
prohibited by section 5A(1)(b). Additionally, although Judge Osborne admittedly attended
political gathering, ordinarily a violation under 5A(1)(c), the record evinces only that he was
there as a judicial candidate running for reelection. Section 5C(1) expressly permits
incumbent judges to attend and speak to political gatherings on their own behalf while
candidates for election or reelection.
B.
¶16.
Political speech
The subject of Judge Osborne’s inflammatory statements was his criticism of a
Caucasian mayor’s appointment of two local African-Americans to the Greenwood Election
Commission. While these statements admittedly were made by Judge Osborne during a year
when he was campaigning for reelection as the incumbent county court judge, we do not find
that these invidious statements constitute protected political speech under the First
Amendment of the United States Constitution, or Article 3, Section 13 of the Mississippi
Constitution of 1890, as amended.
¶17.
The United States Supreme Court addressed the issue of protected political speech in
Republican Party of Minnesota v. White, 536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed. 2d 694
(2002). White stands for the proposition that in states which choose to elect their judges and
8
which have judicial canons prohibiting judicial candidates “from announcing their views on
disputed legal and political issues” such canons violate the First Amendment. White, 536
U.S. at 788. In White, the Court had before it a factual scenario in which a candidate for
associate justice of the Minnesota Supreme Court “distributed literature criticizing several
Minnesota Supreme Court decisions on issues such as crime, welfare and abortion.” Id. at
768. In discussing the procedural history of this case, the Court noted that the Eighth Circuit
Court of Appeals recognized that “the announce clause both prohibits speech on the basis of
its content and burdens a category of speech that is ‘at the core of our First Amendment
freedoms’ – speech about the qualifications of candidates for public office.” Id. at 774 (citing
Republican Party v. Kelly, 247 F.3d 854, 861, 863 (8th Cir. 2001)).
¶18.
Traditionally, this Court, in assessing whether speech by a member of the judiciary
is protected political speech, has applied the two-prong test promulgated in Pickering v.
Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). Applying the
Pickering test, a reviewing court looks to whether, in light of the content, form, and context
of the speech at issue, the speech addresses a matter of legitimate public concern. Miss.
Comm'n on Judicial Performance v. Boland, 975 So. 2d 882, 891 (Miss. 2008) (citing Scott
v. Flowers, 910 F.2d 201, 210 (5th Cir. 1990)). If the speech is not deemed to be a matter
of legitimate public concern, the inquiry ends, otherwise, the next step of the inquiry is to
balance the First Amendment rights of the public employee against the government’s interest.
Boland I, 975 So. 2d at 891.
9
¶19.
In Boland I, this Court found that Judge Boland was not engaging in political speech
when she remarked on the ignorance of members of the Hinds County Board of Supervisors,
criticized the educational background and demeanor of justice court judges, told a participant
to "get the hell out" of the room, and remarked that her African-American constituents in
Hinds County could “go to hell.” Id. In applying the two-prong Pickering test, this Court
held “[s]ince Judge Boland's comment was not made within the content, form or context of
a matter of legitimate public concern, no further analysis is necessary by this Court.
Accordingly, we find that Judge Boland's comment was not protected by the First
Amendment.” Boland I, 975 So. 2d at 892. In doing so, this Court distinguished Judge
Boland from the judge in Mississippi Commission on Judicial Performance v. Wilkerson,
876 So. 2d 1006 (Miss. 2004). Boland I, 975 So. 2d at 892. This Court made that distinction
on the basis that the judge in Wilkerson wrote a letter to a newspaper that contained
commentary on his religious views on homosexuality without ever identifying himself as a
judge. Boland I, 975 So. 2d at 892 (citing Wilkerson, 876 So. 2d at 1008). “Without his
permission, a radio show later aired a conversation Wilkerson had with a reporter concerning
the letter.” Id. (citing Wilkerson, 876 So. 2d at 1008).
¶20.
We find today’s case comparable to the facts in Boland I inasmuch as Judge
Osborne’s commentary on Caucasian officials and their African-American appointees in his
jurisdiction is not worthy of being deemed a matter of legitimate political concern in his
reelection campaign, but merely an expression of his personal animosity. Therefore,
inasmuch as Judge Osborne’s comments “[were] not made within the content, form or
10
context of a matter of legitimate public concern, no further analysis is necessary by this
Court.” Boland I, 975 So. 2d at 892. Likewise, this case is distinguishable from Wilkerson
in that Judge Osborne was appearing at the meeting in his capacity as a judge – this was not
a personal letter to the editor of his local paper. On the other hand, speaking before a group
of his constituents, Judge Osborne no doubt expressed his disdain for the local Caucasian
mayor and his African-American appointees in making his inflammatory remarks; however,
he did not limit his remarks to commentary on the mayor and the mayor’s appointments.
Judge Osborne went further:
White folks don’t praise you [African-Americans] unless you’re a damn fool.
Unless they think they can use you. If you have your own mind and know
what you’re doing, they don’t want you around.
As we found in Boland I, Judge Osborne’s comments “were disparaging insults and not
matters of legitimate public concern.” Boland I, 975 So. 2d at 892. Importantly, today’s case
is distinguishable from White in that Judge Osborne’s disparaging insults went well beyond
the realm of protected campaign speech expressing views on disputed legal and political
issues and discussing the qualifications of the judicial office for which Judge Osborne was
campaigning.
¶21.
As a postscript on this issue, we direct our judges to the commentary under Canon 2
of the Mississippi Code of Judicial Conduct, which states in pertinent part:
Public confidence in the judiciary is eroded by irresponsible or improper
conduct by judges. A judge must avoid all impropriety and appearance of
impropriety. A judge must expect to be the subject of constant public scrutiny.
A judge must therefore accept restrictions on the judge’s conduct that might
11
be reviewed as burdensome by the ordinary citizen and should do so freely and
willingly.
¶22.
No one is compelled to serve as a judge, but once an individual offers himself or
herself for service, that individual accepts the calling with full knowledge of certain
limitations upon speech and actions in order to serve the greater good. A calling to public
service is not without sacrifice, including the acceptance of limitations on constitutionally
granted privileges. This principle is deeply rooted in many areas of government service. For
example, members of the Armed Forces are limited in matters pertaining to outside
employment. See 10 U.S.C. § 973(a) 1980. Likewise, some civil service employees are
restricted from “actively participat[ing] in political activity in any primary or election in a
municipality where he is employed . . . .” Miss. Code Ann. § 21-31-27 (Rev. 2007). See also
Miss. Code Ann. § 21-31-75 (Rev. 2007).
¶23.
In the end, we find that Judge Osborne’s disparaging remarks were not protected
speech under either our federal or state constitution. Accordingly, we agree with the
Commission’s findings that Judge Osborne’s remarks violated Canons 1, 2 (A)&(B), and
3(B)(5), thus causing the judge’s conduct to be actionable under Section 177A of the
Mississippi Constitution of 1890.
II.
¶24.
The Commission asserts that, when confronted with the complaint alleging judicial
misconduct for his inappropriate remarks, Judge Osborne, under oath, knowing that the
allegations were true and that he had in fact said what was reported in the newspaper,
12
purposely denied making the remarks. The Commission further asserts that, by entering into
an agreed statement of the facts in lieu of an evidentiary hearing, Judge Osborne conceded
that the remarks were made. The Commission, therefore, contends that Judge Osborne
committed perjury in violation of Mississippi Code Annotated Section 97-9-59, which
provides in pertinent part:
Every person who shall wilfully and corruptly swear, testify or affirm falsely
to any material matter under oath, affirmation or declaration legally
administered in any matter, cause or proceeding pending in any court of law
or equity, or before any officer thereof, or in any case where an oath or
affirmation is required by law or is necessary for the prosecution or defense of
any private right or for the ends of public justice, or in any matter or
proceeding before any tribunal or officer created by the Constitution or by law,
or where any oath may be lawfully required by any judicial, executive, or
administrative officer, shall be guilty of perjury . . . .
Miss. Code Ann. § 97-9-59 (Rev. 2006).
¶25.
In Re Collins, quoting 83 C.J.S. Stipulations Section 25, held:
[An] Agreed Statement of Facts on which the parties submit [a] case for trial
is binding and conclusive on them, and the facts stated are not subject to
subsequent variation. So, the parties will not be permitted to deny the truth of
the facts stated, or the truth, competency or sufficiency of any admission
contained in the Agreed Statement or to maintain a contention contrary to the
Agreed Statement or be heard to claim that there are other facts that the Court
may presume to exist, or to suggest, on appeal, that the facts were other than
stipulated, or that any material fact was omitted.
In re Collins, 524 So. 2d 553, 561 (Miss. 1987) (citing 83 C.J.S. Stipulations § 25 (1954)).
¶26.
Lying under oath is an abuse of the judicial process which Judge Osborne was elected
to uphold. Perjury is not a matter to be taken lightly, nor will it be tolerated by this Court. A
proceeding before the Commission on Judicial Performance is no different from a trial and
13
“[a] trial is a proceeding designed to be a search for the truth.” Sims v. ANR Freight
Systems, Inc., 77 F.3d 846, 849 (5th Cir. 1996). “When a party attempts to thwart such a
search, the courts are obligated to ensure that such efforts are not only cut short, but that the
penalty will be sufficiently severe to dissuade others from following suit.” Jones v. Jones,
995 So. 2d 706, 711-12 (Miss. 2008) (quoting Scoggins v. Ellzey Beverages, Inc., 743 So.
2d 990 (Miss. 1999)).
¶27.
The Commission on Judicial Performance contends to this Court that Judge Osborne
committed perjury pursuant to Mississippi Code Section 97-9-59. However, the Commission
never formally charged Osborne with perjury. A formal charge is required. A verdict
without a formal complaint is no different from a criminal trial without an indictment.
Therefore, in the absence of a formal complaint and a hearing on the merits, this Court lacks
the authority to accept the finding of the Commission on the perjury count.
¶28.
For the reasons stated, the Commission’s recommendation that Judge Osborne be
sanctioned for committing perjury must be rejected.6
III.
¶29.
Having accepted and agreed with the Commission’s finding that Judge Osborne’s
remarks were in violation of Canons 1, 2 (A)&(B), 3(B)(5), thus causing such conduct to be
6
We do not dispute the fact that, from the record, the Commission could have charged
Osborne with perjury via a formal complaint, and proceeded to an evidentiary hearing on this
issue; however, the Commission did not do so.
14
actionable pursuant to the provisions of Article 6, Section 177A of the Mississippi
Constitution of 1890, as amended, we now turn to a discussion of appropriate sanctions.
¶30.
In accordance with Section 177A of the Mississippi Constitution and Rule 10 of the
Rules of the Commission on Judicial Performance, as interpreted by this Court, the
Commission is charged with recommending disciplinary sanctions, and the Court, based
upon a review of the entire record, must determine the appropriate sanction. In fact, in the
end, this Court alone has the power to impose sanctions. Miss. Comm'n on Judicial
Performance v. Osborne, 977 So. 2d 314, 324 (Miss. 2008) (citing In re Quick, 553 So. 2d
522, 527 (Miss. 1989)). The primary purpose of judicial sanctions is not punishment of the
individual judge but “to restore and maintain the dignity and honor of the judicial office and
to protect the public against future excesses.” Miss. Comm'n on Judicial Performance v.
Guest, 717 So. 2d 325, 329 (Miss. 1998) (citing In re Harned, 357 N.W.2d 300, 302 (Iowa
1984)). The sanctions available to us when disciplining a judge include: (1) removal from
office; (2) suspension from office; (3) fine; and (4) public censure or reprimand. Miss.
Comm'n on Judicial Performance v. Osborne, 977 So. 2d 314, 324 (Miss. 2008), cf. Miss.
Comm'n on Judicial Performance v. Teel, 863 So. 2d 973, 975 (Miss. 2004) (citing Miss.
Const. art. 6, § 177A); Miss. Comm'n on Judicial Performance v. Walker, 565 So. 2d 1117,
1128-32 (Miss. 1990) (compiling list of judicial performance sanctions in Mississippi).
¶31.
The appropriateness of sanctions is weighed based on the following factors, often
referred to by this Court as the Gibson 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
15
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; and (6) the
presence or absence of mitigating or aggravating circumstances. Miss. Comm'n on Judicial
Performance v. Gibson, 883 So. 2d 1155, 1157 (Miss. 2004).7 The Commission
recommended that Judge Osborne be removed from office. However, since the institution of
the subject proceedings, Judge Osborne has resigned from the bench.
A.
¶32.
The length and character of the judge’s public service.
Judge Osborne was appointed to the bench in 2001, and he later was elected and
reelected in the 2002 and 2006 general elections, respectively. However, in looking to the
character of his service, Judge Osborne’s tenure in the judiciary has been marked by prior
disciplinary proceedings before the Commission and sanctions by this Court. In Mississippi
Commission on Judicial Performance v. Osborne, 876 So. 2d 324 (Miss. 2004) (Osborne
I), Judge Osborne was publicly reprimanded for practicing law as a judge in violation of
Mississippi Code Sections 9-1-25 and 9-9-9 (Rev. 2002). In Mississippi Commission on
Judicial Performance v. Osborne, 977 So. 2d 314, 326 (Miss. 2008) (Osborne II), Judge
Osborne was suspended for 180 days and assigned the costs of that proceeding for failing to
observe high standards of conduct and invoking his office in objecting to the repossession
of the automobile jointly owned by his wife and mother-in-law. Today’s case is Osborne III.
B.
Whether there is any case law on point.
7
In Gibson, we modified the Baker factors. Gibson, 883 So. 2d at 1158 (citing
Inquiry Concerning Dennis M. Baker, Chancellor, 535 So. 2d 47, 54 (Miss. 1988)).
16
¶33.
Having already discussed factual similarities between this case and Mississippi
Commission on Judicial Performance v. Boland, 975 So. 2d 882 (Miss. 2008) (Boland I),
we will not belabor the point. In Mississippi Commission on Judicial Performance v.
Byers, 757 So. 2d 961 (Miss. 2000), the Commission had recommended removal from office
prior to Judge Byers losing her bid for reelection. Because she was no longer in office, this
Court imposed a sanction less severe than removal from office. Id. at 973.
C.
¶34.
The magnitude of the offense.
Undermining the public confidence in the integrity, propriety, and impartiality of the
office is an egregious offense. Judge Osborne’s comments received widespread publicity in
the media to the extent that forty-eight citizens complained to the Commission.
D.
¶35.
Whether the misconduct is an isolated incident or evidences a pattern of
conduct.
As discussed previously, Judge Osborne has a long history of violating the judicial
canons and being sanctioned by this Court. It would stand to reason that a third offense
warrants a harsh sanction.
E.
¶36.
Whether moral turpitude was involved.
The Commission argues that Judge Osborne’s comments failed to uphold the “dignity
and respect of the judiciary” pursuant to this Court’s holding in Mississippi Commission on
Judicial Performance v. Sanford, 941 So. 2d 209, 217 (Miss. 2006). The Commission’s
argument on this point is based on its assertion of perjury committed by Judge Osborne.
17
Inasmuch as we have resolved the perjury issue in favor of Judge Osborne, we find that
moral turpitude was not involved.
F.
¶37.
The presence or absence of mitigating or aggravating circumstances.
Judge Osborne urges this Court to consider his community and public service and his
plans for improvement to the juvenile justice system in Leflore County. However, the
Commission points to Judge Osborne’s prior disciplinary history as an aggravating factor.
See Miss. Comm’n on Judicial Performance v. Lewis, 913 So. 2d 266 (Miss. 2005). This
Court agrees with the Commission that two prior offenses outweigh the character of Judge
Osborne’s service to his community.
¶38.
Based on Judge Osborne’s actions in today’s case and his history of judicial
misconduct already discussed, the harshest constitutional remedy – removal from office –
would be appropriate. We acknowledge that since the institution of these proceedings before
the Commission, Judge Osborne has resigned his judicial position, effective May 30, 2008.
Thus, one obvious issue to consider is the propriety of removing from office, or suspending
from office, a judge who is no longer holding judicial office at the time of this Court’s
decision in a judicial misconduct case. In other words, what is the point?
¶39.
We acknowledge that in at least two cases, after finding egregious conduct on the part
of the subject judges, we chose the sanction of public reprimand as the judges, by the time
of our decisions, had been removed from judicial office via the citizens at the ballot box.
Miss. Comm’n on Judicial Performance v. Boland, 998 So. 2d 380, 393 (Miss. 2008)
18
(Boland II); Miss. Comm’n on Judicial Performance v. Byers, 757 So. 2d 961, 973 (Miss.
2000).
¶40.
On the other hand, in Mississippi Commission on Judicial Performance v. Dodds,
680 So. 2d 180 (Miss. 1996), this Court found that the judge “should be removed from the
bench.” Id. at 201. This finding was made notwithstanding the fact that the subject judge had
chosen not to seek reelection to judicial office and thus was no longer in office at the time
of this Court’s decision to remove him from office. Id. at 182 n1. Of significant import in
today’s case is the following language found in Dodds, in which Justice Banks, writing for
the majority, stated:
Floyd Dodds was not a candidate for reelection in the 1995 elections and,
therefore, left office in January 1996. It follows that this case is moot insofar
as it requires that he leave office. We conclude, however, that there are
substantial reasons for bringing this matter to a conclusion with a decision on
the merits. First, one should not be able to preclude discipline by the simple
expedient of resigning or otherwise voluntarily leaving office. See In re the
Matter of Weeks, 134 Ariz. 521, 658 P.2d 174 (1983). Additionally, judicial
conduct is a matter of great public interest and our decisions serve as a guide
for the entire judiciary and to preserve the public confidence in it. In re
Yaccarino, 101 N.J. 342, 502 A.2d 3, 30-31 (1985); Matter of Probert, 411
Mich. 210, 308 N.W.2d 773, 776 (1981); Judicial Inquiry and Review Bd. v.
Snyder, 514 Pa. 142, 523 A.2d 294, 298 (1987).
Dodds, 680 So. 2d at 182 n1. See also Miss. Comm’n on Judicial Performance v. Brown,
918 So. 2d 1247, 1256, 1259 (Miss. 2005) (judge removed from office although he
“claim[ed] he [would] not seek another term.”).
¶41.
As we stated in Osborne II, “[a] second offense undoubtedly warrants a harsher
penalty.” Osborne, 977 So. 2d at 326. In Osborne II, we found that Judge Osborne’s
19
judicial misconduct warranted, inter alia, a suspension from office for a period of 180 days.
Id. at 327. It thus logically follows that a third offense of judicial misconduct on the part of
Judge Osborne would warrant a harsher penalty than the 180-day suspension which Judge
Osborne received for his second offense. Therefore, we find that in today’s case, Osborne
III, the appropriate sanction is suspension from office for a period of one year and the
assessment of costs. Again, we find this sanction to be in keeping with the logic expressed
in Dodds for the imposition of a sanction of removal (or in this case, suspension), even
though the judge chose to resign from judicial office prior to this Court’s decision. Dodds,
680 So. 2d at 182 n1.
¶42.
In Boland II, this Court found that because the voters had removed the judge from
office by the time we decided her case, the constitutional sanction of removal from office
was no longer available. Boland II, 998 So. 2d at 393. More specifically, we stated that
“[s]ince the public removed [the judge] from office before this Court could act on the
Commission’s recommendation, the remaining options [under the Constitution] are only to
fine or publicly censure or reprimand her.” Id. However, this statement in Boland II is
inconsistent with Dodds. Therefore, to this limited extent, Boland II is overruled.
CONCLUSION
¶43.
Judge Osborne’s actions constituted willful misconduct in office and conduct
prejudicial to the administration of justice which brought the judicial office into disrepute.
We thus order Judge Osborne to be suspended from office for a period of one year and to be
assessed costs in the sum of $731.89.
20
¶44. FORMER COUNTY COURT JUDGE SOLOMON C. OSBORNE SHALL BE
SUSPENDED FROM OFFICE FOR A PERIOD OF ONE YEAR FROM AND AFTER
THE ISSUANCE OF THE MANDATE IN THIS CASE AND IS ASSESSED COSTS
OF $731.89.
WALLER, C.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ.,
CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED IN PART BY GRAVES, P.J., AND DICKINSON, J. DICKINSON, J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES, P.J., AND KITCHENS, J.
KITCHENS, JUSTICE, DISSENTING:
¶45.
Although I agree with Justice Dickinson’s conclusion that this case is controlled by
the U.S. Supreme Court’s decision in Republican Party v. White, 536 U.S. 765, 122 S. Ct.
2528, 153 L. Ed. 2d 694 (2002), I write separately to express my conviction that, where our
ethical rules collide with the freedom of speech, our canons must yield to our constitutions.
¶46.
Credibility is the fresh air by which courts breathe life into their decisions. Without
credibility, judicial opinions cannot go forth from the courthouse to spread the rule of law.
Without credibility, a court’s written word is worthless. Without credibility, judges are
reduced from arbiters of justice to men and women vainly whispering from a lonely
mountaintop. No justice voting today would say that the Code of Judicial Conduct is not a
critically important standard by which the credibility of our state’s judiciary is measured.
¶47.
But unwavering fidelity to constitutional principles must always transcend and trump
even the loftiest and most laudable goals and guidelines for our state judiciary. Our
democracy has survived for more than two centuries for no reason more important than
courts’ faithful protection of unfettered political debate, a freedom deemed sacred by our
21
state constitution. Miss. Const. art. 3, § 13. Long have our nation’s judges recognized that
“[i]f there is a bedrock principle underlying the First Amendment, it is that the government
may not prohibit the expression of an idea simply because society finds the idea itself
offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed.
2d 342 (1989). “Accordingly, a function of free speech under our system of government is
to invite dispute. It may indeed best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 93 L. Ed. 1131 (1949).
¶48.
Today, we are asked to pass judgment in a case that places these two tenets in direct
tension, positing a question of whether we afford greater importance to our ethical rules or
our dedication to free speech. I agree with Justice Dickinson that the majority’s distinction
of this case from the U.S. Supreme Court’s holding in Republican Party v. White is
misplaced. But I would also hold that, to the extent the Code of Judicial Conduct regulates
speech, it is powerless to sanction.
¶49.
To be sure, the Mississippi Constitution’s commands that judges refrain from “willful
misconduct” and “conduct prejudicial to the administration of justice,” Miss. Const. art. 6,
§ 177A, are not facially violative of the First Amendment. The U.S. Supreme Court has gone
to great lengths to distinguish speech, which the First Amendment fiercely protects, and
conduct, which it does not protect. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 113 S. Ct.
2194, 124 L. Ed. 2d 436 (1993). Likewise, to the extent that the Code of Judicial Conduct
implicates pure conduct, I do not suggest that it trespasses upon the ground staked off by the
22
First Amendment and our state Constitution, and I would not subject decisions thereunder
to great scrutiny. See, e.g., United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed.
2d 672 (1968). But when government seeks to level the sword of judgment against a speaker
because of the political content of his message, rather than for the act of speaking, then the
restriction “must be subjected to the most exacting scrutiny.” Boos v. Barry, 485 U.S. 312,
321, 108 S. Ct. 1157, 99 L. Ed. 2d 333 (1988). The majority erroneously applies the lesser
standard that the U.S. Supreme Court has developed to address the speech of public
employees. Maj. Op. at ¶18 (citing Pickering v. Board of Education, 391 U.S. 563, 88 S.
Ct. 1731, 20 L. Ed. 2d 811 (1968)). The high court, the Fifth Circuit Court of Appeals, and
this Court all have made abundantly clear that elected judges are no mere “public employees”
but moderators of public debate that, like all elected officials, enjoy a “role that . . . makes
it all the more imperative that they be allowed freely to express themselves on matters of
current public importance.” Republican Party v. White, 536 U.S. 765, 781-82, 122 S. Ct.
2528, 153 L. Ed 2d 694 (2002) (quoting Wood v. Georgia, 370 U.S. 375, 395, 82 S. Ct. 1364,
8 L. Ed. 2d 569 (1962)). See also Jenevein v. Willing, 493 F. 3d 551, 558 (5th Cir. 2007)
(applying strict scrutiny in a case involving a Texas judge punished for public speech); Miss.
Comm’n on Judicial Performance v. Wilkerson, 876 So. 2d 1006, 1011 (Miss. 2004)
(applying strict scrutiny in the case of a judge who wrote in a local newspaper that
homosexuals belonged in mental institutions).
¶50.
Under this degree of scrutiny, a speech regulation comports with the First Amendment
only when it has been narrowly tailored to address a compelling state interest, Boos, 485 U.S.
23
at 321, and any restriction that punishes constitutionally protected speech is necessarily
overbroad. See United States v. Playboy Entm’t Group, 529 U.S. 803, 120 S. Ct. 1878, 146
L. Ed. 2d 865 (2000). In my view, Judge Osborne’s comments were far beneath the dignity
of a judge. But just as clearly, his comments addressed a political issue, and not just any
political issue, but the seminal political issue of this state’s history: race. Therefore, any
provision of legal force that punishes Judge Osborne for that speech violates the First
Amendment of the U.S. Constitution and Article 3, Section 13 of the Mississippi
Constitution.
¶51.
Ultimately, despite the White Court’s attention to “disputed legal and political issues,”
White, 536 U.S. at 768, our free-speech jurisprudence makes clear that the government
violates the First Amendment and Section 13 not only by punishing a speaker for engaging
in political speech, but also by enumerating the topics upon which speech is tolerated, “[f]or
it is a prized American privilege to speak one’s mind, although not always with perfect good
taste, on all public institutions.” Bridges v. California, 314 U.S. 252, 270, 62 S. Ct. 190, 86
L. Ed. 192 (1941). See also Boos, 485 U.S. 312 (reiterating that content-based restrictions
on speech will be subjected to strict scrutiny). “It is simply not the function of government
to select which issues are worth discussing or debating in the course of a political campaign.”
White, 536 U.S. at 782 (Scalia, J.) (quoting Brown v. Hartlage, 456 U.S. 45, 60, 102 S. Ct.
1523, 71 L. Ed. 2d 732 (1982)).
¶52.
I would hold, therefore, that an application of the Code of Judicial Conduct violates
the First Amendment and Section 13 not only when it punishes speech regarding “disputed
24
legal and political issues,” but also when it punishes speech regarding any political issue,
disputed or otherwise. For that reason, I would find that the Mississippi Commission on
Judicial Performance is powerless to sanction Judge Osborne for the message that he
delivered.
¶53.
Furthermore, because the First Amendment’s protections also extend to
communicative conduct and include the freedom of association, Roberts v. United States
Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984), I would find that our
federal and state constitutions forbid sanction against Judge Osborne for membership in the
Greenwood Voters League or any other political organization. “Effective advocacy of both
public and private points of view, particularly controversial ones, is undeniably enhanced by
group association, as [the U.S. Supreme Court] has more than once recognized by remarking
upon the close nexus between the freedoms of speech and assembly.” NAACP v. Ala. ex rel.
Patterson, 357 U.S. 449, 460, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958). Therefore, if we
recognize, as we should, that Judge Osborne’s political speech fell within the protections of
Section 13 and the First Amendment, then we must also recognize that the association he
undertook for the expression of those ideas likewise enjoyed constitutional protection.
¶54.
Today’s decision not only violates the protections afforded to Judge Osborne under
the First Amendment and Section 13 of the Mississippi Constitution but also deprives the
voters of this state the benefit of full, unfettered debate by their judicial candidates and
officeholders. Under our state’s system of judicial elections, the decision of whether an
outspoken judge’s comments warrant removal rests properly with his constituents.
25
¶55.
Judge Osborne’s rhetoric sits no more easily with me than with any other justice
voting today. But “[i]f the provisions of the Constitution be not upheld when they pinch, as
well as when they comfort, they may as well be abandoned.” Home Building & Loan Ass’n
v. Blaisdell, 290 U.S. 398, 483, 54 S. Ct. 231, 78 L. Ed. 413 (1934) (Sutherland, J.,
dissenting). Accordingly, I dissent.
GRAVES, P.J. AND DICKINSON, J., JOIN THIS OPINION IN PART.
DICKINSON, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:
¶56.
The state may not "censor what the people hear as they undertake to decide for
themselves which candidate is most likely to be an exemplary judicial officer. Deciding the
relevance of candidate speech is the right of the voters, not the State." Republican Party of
Minnesota v. White, 536 U.S. 765, 794, 122 S. Ct. 2528, 153 L. Ed. 2d 694 (2002)
(Kennedy, J., concurring).
¶57.
Judge Osborne's malevolent, racist words should be offensive to all rational,
fair-minded people. As judicial officers, however, we are required to follow the law. With
the utmost respect to the justices comprising the majority, I cannot conclude that this Court
is today following the law. I therefore must respectfully dissent in part.
The Law
¶58.
The controlling law for governmental attempts to control the speech of elected judges
is White, in which the United States Supreme Court addressed the question of "whether the
26
First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial
election in that State from announcing their views on disputed legal and political issues." Id.
at 768. In deciding that states may not prohibit judicial candidates from making speeches on
political issues during a campaign, the White Court noted that political speech is a category
of speech that is "at the core of our First Amendment freedoms." Id. at 774. In reviewing
some of its precedent, the White Court went further to state:
"The role that elected officials play in our society makes it all the more
imperative that they be allowed freely to express themselves on matters of
current public importance." Wood v. Georgia, 370 U.S. 375, 395, 82 S. Ct.
1364, 8 L. Ed. 2d 569 (1962). "It is simply not the function of government to
select which issues are worth discussing or debating in the course of a political
campaign." Brown v. Hartlage, 456 U.S. 45, 60, 102 S. Ct. 1523, 71 L. Ed. 2d
732 (1982) (internal quotation marks omitted). We have never allowed the
government to prohibit candidates from communicating relevant information
to voters during an election.
White, 536 U.S. at 781-82. Thus, according to White, this Court is constitutionally prohibited
from punishing a candidate for judicial office for "announcing their views on disputed legal
and political issues."
¶59.
Indeed, this Court recently has held that judges do not abandon their constitutional
rights when they take the oath of office, and that this Court may not impose sanctions where
doing so would contravene an individual's constitutional rights. Miss. Comm'n on Judicial
Performance v. Wilkerson, 876 So. 2d 1006, 1010 (Miss. 2004).
27
Judge Osborne's Statement
¶60.
According to the Commission, Judge Osborne -- referring to the appointment of two
local African-Americans to the Greenwood Election Commission by a Caucasian mayor -made the following statement: "White folks don't praise you unless you're a damn fool.
Unless they think they can use you. If you have your own mind and know what you're doing,
they don't want you around."
¶61.
I cannot agree with the majority's single sentence with which it attempts to distinguish
White. The majority says only that "Judge Osborne's disparaging insults went well beyond
the realm of protected campaign speech expressing views on disputed legal and political
issues. . . ." Maj. Op. at ¶20. To the contrary, Judge Osborne was clearly announcing his
view on a disputed political issue -- his disagreement with the Greenwood mayor's
appointments to the Greenwood Election Commission. Disagreement with an elected mayor's
political appointments to an election commission would seem to me to easily qualify as a
"disputed political issue."
¶62.
Judge Osborne made his statements in an election year, after he had qualified as a
candidate. He was speaking in his capacity as a qualified candidate. The subject of his
inflammatory statements was his criticism of two political appointments to the Greenwood
Election Commission. Thus, Judge Osborne's speech -- offensive though it was -- constitutes
protected political speech, and this Court, in my view, is powerless to punish him for it.
¶63.
With the greatest respect for my esteemed colleagues in the majority, I find it curious
that the majority virtually ignores White (recognized as the controlling authority on the issue
28
of restricting a judicial candidate's speech), and then proceeds to ignore its holding; relying
instead on Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811
(1968), a case decided forty years ago which involves a school teacher, not a judicial
candidate.
¶64.
In fairness to the majority, I recognize -- and must point out -- that White did not
address the precise question of "whether a State may restrict the speech of judges because
they are judges -- for example, as part of a code of judicial conduct . . . ." White, 536 U.S.
at 796 (Kennedy, J., concurring). Justice Kennedy stated:
Whether the rationale of [Pickering] and Connick v. Myers, 461 U.S. 138, 75
L. Ed. 2d 708, 103 S. Ct. 1684 (1983), could be extended to allow a general
speech restriction on sitting judges -- regardless of whether they are
campaigning -- in order to promote the efficient administration of justice, is
not an issue raised here.
Id. In my view, however, there is no logical argument why the principles announced in White
would not extend to any canon or other restriction on a judge's right to free speech during the
course of a political campaign.
¶65.
Although I agree with the majority's conclusions concerning all other matters, I cannot
agree that Judge Osborne may be punished for making a political speech. Thus, I concur in
part and dissent in part.
GRAVES, P.J., AND KITCHENS, J., JOIN THIS OPINION.
29
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