Mississippi Commission on Judicial Performance v. Ralph Boone
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-JP-01082-SCT
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
v.
RALPH BOONE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
07/02/2010
HON. H. DAVID CLARK, II
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
DARLENE D. BALLARD
AYANNA B. BUTLER
WAYNE DOWDY
CIVIL - JUDICIAL PERFORMANCE
SUSPENSION FROM OFFICE FOR NINETY
(90) DAYS WITHOUT PAY; PUBLIC
REPRIMAND; AND ASSESSED COSTS OF
$1,907.05 - 04/28/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, PRESIDING JUSTICE, FOR THE COURT:
¶1.
On August 6, 2009, the Mississippi Commission on Judicial Performance
(Commission) filed a Formal Complaint charging Lincoln County Justice Court Judge Ralph
Boone with willful misconduct in office and conduct prejudicial to the administration of
justice which brings the judicial office into disrepute, thus causing such alleged conduct to
be actionable pursuant to the provisions of Section 177A of the Mississippi Constitution of
1890, as amended. Judge Boone filed an answer to the formal complaint on September 8,
2009, denying the claims. On April 8, 2010, a three-person committee appointed by the chair
of the Commission conducted a hearing in this matter, and at the conclusion thereof, the
committee took this matter under advisement. Counsel for the Commission filed Proposed
Findings of Fact and Conclusions of Law on May 13, 2010, and Judge Boone filed his
Proposed Findings of Fact and Conclusions of Law on June 1, 2010. The committee filed
its Findings of Fact and Recommendation on June 11, 2010, in which the committee
unanimously recommended to the Commission that Judge Boone be removed from his
judicial office and assessed the costs of all proceedings.
¶2.
On July 6, 2010, the Commission filed with this Court its Findings of Fact,
Conclusions of Law, and Recommendation. Specifically, the Commission found that Judge
Boone’s conduct violated Canons 1, 2A, 2B, 3B(2), 3B(4), and 4A of the Code of Judicial
Conduct, and that such actions constituted willful misconduct in office and conduct
prejudicial to the administration of justice which brings the judicial office into disrepute
pursuant to Article 6, Section 177A, of the Mississippi Constitution of 1890, as amended.
The Commission recommended to the Court that Judge Boone be removed from the office
of justice court judge and that he be assessed the costs of all proceedings before the
Commission, in the amount of $1,907.05.
One of the several allegations of judicial
misconduct lodged against Judge Boone was that he had made sexual advances toward a
female litigant. As will become apparent, infra, there is not a consensus among the justices
of this Court on whether the facts surrounding this alleged sexual conduct with a female
litigant have been established by clear and convincing evidence; thus, we are unable to adopt
2
the Commission’s recommendation that Judge Boone be removed from office. We do find
that Judge Boone’s conduct violated various canons of our Code of Judicial Conduct, and we
impose a ninety-day suspension without pay, a public reprimand, and assessment of costs in
the amount of $1,907.05.
FACTS AND PROCEEDINGS BEFORE THE COMMISSION
¶3.
In its formal complaint, the Commission alleged, inter alia, that on the morning of
April 15, 2009, Judge Boone presided over the trial of defendant Christina Twaddle. Judge
Boone imposed a $239 fine, to be paid no later than 5:00 p.m. the same day. The formal
complaint further asserted:
Around noon on April 15, 2009, [Judge Boone] spotted Twaddle at a local
gasoline station and inquired as to whether he knew her. Twaddle told him she
had appeared before him that very morning in court. He then asked if she
would ride with him in his automobile to discuss payment of the fine. Twaddle
agreed and left the gasoline station with [Judge Boone].
During the time [Judge Boone] and Twaddle were in his vehicle, [Judge
Boone] touched Twaddle on the breast and crotch area. [Judge Boone] told
Twaddle that he would “fix her fine” in exchange for a sexual act. [Judge
Boone] drove Twaddle to a local business and asked that she meet him around
3 p.m. [Judge Boone] and Twaddle exchanged telephone numbers and [Judge
Boone] left. [Judge Boone] called Twaddle on numerous occasions on the
afternoon of April 15, 2009.
On the afternoon of April 15, 2009, Twaddle paid $139.00 to the justice court
clerk of Lincoln County, Mississippi after [Judge Boone] sua sponte reduced
the amount owed by $100.00.
¶4.
On these alleged facts, the Commission charged Judge Boone with violations of
Canons 1, 2A, 2B, 3B(2), 3B(4), and 4A of the Mississippi Code of Judicial Conduct. The
Commission further asserted that Judge Boone’s alleged judicial misconduct was actionable
pursuant to the provisions of Section 177A of the Mississippi Constitution of 1890, as
3
amended. The Commission complied with the provisions of Mississippi Commission on
Judicial Performance Rule 6C concerning proper notice to Judge Boone, as well as his right
to respond pursuant to Rule 6D.
¶5.
On August 14, 2009, Judge Henry L. Lackey, Chair of the Commission, entered an
order appointing a three-person committee, consisting of certain Commission members, to
conduct a formal, evidentiary hearing concerning the allegations contained in the formal
complaint. Thereafter, Judge Boone filed an answer to the formal complaint, generally
denying the allegations in the complaint. Upon the filing of Judge Boone’s response, Judge
Lackey entered a scheduling order providing various deadlines for discovery, the filing of
motions, as well as a hearing date. On March 16, 2010, Judge H. David Clark, the new chair
of the Commission, entered an amended order appointing a three-person committee to
conduct an evidentiary hearing on the formal complaint.
¶6.
The formal hearing was held on April 8, 2010, Judge Lee J. Howard presiding. Both
the Commission and Judge Boone were represented by counsel. In the Commission’s casein-chief, the following persons testified: (1) Lincoln County Justice Court Judge Ralph
Boone; (2) Pike County Justice Court Judge Aubrey P. Rimes; (3) Raymond O. Boutwell,
Jr., the attorney who had represented Christina Twaddle at her public drunkenness hearing
before Judge Boone; (4) Lincoln County Deputy Justice Court Clerk Melanie Green; (5)
Mikell Buckley, Chief Investigator for the Mississippi Commission on Judicial Performance;
(6) Christina Twaddle, the complaining witness; (7) Megel Jackson, Twaddle’s godson; and
(8) Truett Simmons, Investigator for the District Attorney’s Office in the Fourteenth Circuit
Court District, of which Lincoln County is a part. Nolan Jones, Assistant Chief of Police for
4
the City of Brookhaven, was the only witness to testify in Judge Boone’s case-in-chief.1
Following the hearing, the committee, on a unanimous vote, entered its fourteen-page
findings of fact and recommendation for the Commission’s consideration. Thereafter, the
Commission entered its fifteen-page findings of fact, conclusions of law and
recommendation, stating, inter alia, that “the Commission, based upon clear and convincing
evidence, adopts the Committee findings . . . .” The Commission’s recommendation stated
in pertinent part:
It is a sad day in the judiciary when judges, who have accepted an oath to
uphold the law, engage in such conduct as witnessed in this case. [Judge
Boone]’s actions have destroyed any positive perception Twaddle or her
family may ever have of the judiciary and such behavior cannot be tolerated.
Therefore, the Commission by clear and convincing evidence, concludes that
[Judge Boone’s] conduct in this case has violated Section 177A of the
Mississippi Constitution of 1890, as amended, and that said conduct
constitutes willful misconduct in office and conduct prejudicial to the
administration of justice which brings the judicial office into disrepute. The
panel finds that the only sanction that will restore confidence in the Lincoln
County Justice Court is to remove [Judge Boone] from the office of Justice
Court Judge, and to assess all costs of this proceedings [sic] in the sum of
$1,907.05 against [Judge Boone].
¶7.
These recommendations are now before this Court.
DISCUSSION
1
Once counsel for the Commission had completed her examination of Judge Boone
during the Commission’s case-in-chief, Judge Boone’s counsel informed Judge Howard that
he did not wish to examine Judge Boone at that time, but that he would reserve his right to
examine Judge Boone during the respondent’s case-in-chief. However, at the conclusion of
Officer Jones’s testimony in the respondent’s case-in-chief, Judge Boone’s counsel
announced that the respondent would rest; and the Commission’s counsel then announced
that the Commission had no rebuttal evidence to offer.
5
¶8.
Our state constitution states that this Court has authority to sanction a judge “[o]n
recommendation of the commission on judicial performance . . . .” Miss. Const. art. 6, §177A
(1890). This Court’s first opportunity to address this constitutional provision, which was
passed by a concurrent resolution of the Legislature in 1979, and ratified by the electorate
on November 6, 1979, was in In re Removal of Lloyd W. Anderson, Justice Court Judge,
412 So. 2d 743 (Miss. 1982). Although we will return to Anderson infra for a more detailed
discussion on our mandated responsibilities in considering cases of alleged judicial
misconduct, suffice it to state here that this Court stated, for the first time, that in cases
coming to us from the Mississippi Commission on Judicial Performance, the Court, in
making a “final determination of the appropriate action to be taken in each case,” would
“conduct an independent inquiry of the record” and in doing so, this Court would “accord
careful consideration [of] the findings of fact and recommendations of the Commission, or
its committee, which has had the opportunity to observe the demeanor of the witnesses.” Id.
at 746. But somewhere along the way, post-Anderson, this Court has strayed from the
wisdom of Anderson in considering cases coming to us from the Commission. We have even
gotten to the point of stating that when acting on a recommendation from the Commission,
we will conduct a de novo review of the Commission’s proceedings, “while affording
deference to the Commission’s recommendations when the Commission’s findings are based
on clear and convincing evidence.” Miss. Comm’n on Judicial Performance v. Thompson,
972 So. 2d 582, 585 (Miss. 2008) (citing Miss. Comm’n on Judicial Performance v. Cole,
932 So. 2d 9, 10 (Miss. 2006) (other citations omitted)). On the other hand, we have stated
that, while this Court does afford considerable deference to the findings of the Commission,
6
“‘we are also charged to render an independent judgment.’” Thompson, 972 So. 2d at 585
(quoting Miss. Comm’n on Judicial Performance v. Gibson, 883 So. 2d 1155, 1156 (Miss.
2004) (other citations omitted)).
We stated in Mississippi Commission on Judicial
Performance v. Hartzog, 904 So. 2d 981, 984 (Miss. 2004), that we give “great deference
to the findings, based on clear and convincing evidence, and recommendations of the
Mississippi Commission on Judicial Performance.” (Emphasis added.) See also Miss.
Comm’n on Judicial Performance v. Peyton, 645 So. 2d 954, 956 (Miss. 1994); Miss.
Comm’n on Judicial Performance v. Gunn, 614 So. 2d 387, 389 (Miss. 1993). Finally,
unquestionably, we have stated that, in considering the Commission’s recommendations in
judicial performance cases, we are the “trier of fact” inasmuch as this Court has “the sole
power to impose sanctions in judicial misconduct cases.” Hartzog, 904 So. 2d at 984 (citing
Peyton, 645 So. 2d at 956.)
¶9.
Additionally, we also have stated that, while we are to look anew at the facts found
by the Commission, as well as the Commission’s recommendations as to sanctions, we are
permitted to afford deference to the Commission and its recommendations when its findings
are undergirded by clear and convincing evidence. In Mississippi Commission on Judicial
Performance v. Carr, 990 So. 2d 763, 765-66 (Miss. 2008), we stated that, “‘[w]hile it is true
that this Court is the trier of fact in judicial misconduct proceedings and may impose
additional sanctions, it nonetheless gives great weight to the findings of the Commission
which has had the opportunity to observe the demeanor of the witnesses.’” (quoting Miss.
Comm’n on Judicial Performance v. Sutton, 985 So. 2d 322, 326 (Miss. 2008). See also
In re Garner, 466 So. 2d 884, 885 (Miss. 1985).
7
¶10.
In a nutshell, when a formal complaint is filed against a judge, a three-member
committee will be appointed by the Commission to conduct an evidentiary hearing on the
formal complaint. At this hearing, the Commission’s representatives and the respondentjudge have the opportunity to call witnesses to give sworn testimony. Exhibits also may be
received into evidence. The committee then submits to the full Commission written findings
of fact and its recommendation. The Commission is free to adopt, in whole or in part, or to
modify or reject, the committee’s findings and recommendation. Eventually, the Commission
submits its findings of fact, conclusions of law, and recommendation to this Court, which
ultimately renders a decision. Throughout this entire process, which involves a three-person
committee, a seven-person Commission, and a nine-justice Mississippi Supreme Court, the
three committee members, and only the three committee members, have the opportunity, not
only to hear the testimony of the witnesses, but also to observe the demeanor of the witnesses
as they testify.
¶11.
With this being said, we state today that we are returning to our mandated review as
set out in Anderson and as discussed in detail infra. Thus, any language contrary to
Anderson adopted by this Court in other cases is expressly overruled. We now return to the
facts and Commission proceedings in today’s case.
I.
WHETHER JUDGE BOONE’S CONDUCT CONSTITUTES
MISCONDUCT IN VIOLATION OF CANONS 1, 2A, 2B, 3B(2),
3B(4), AND 4A OF THE MISSISSIPPI CODE OF JUDICIAL
CONDUCT, THUS CAUSING THIS MATTER TO BE
ACTIONABLE UNDER SECTION 177A OF THE MISSISSIPPI
CONSTITUTION OF 1890, AS AMENDED.
8
¶12.
We set out the facts as revealed in the record as the need arises in our discussion. We
begin, however, with the Commission’s findings of fact. These findings of fact are critical
to our determination here today, and are thus set out verbatim:2
[Judge Boone], in his official capacity as Justice Court Judge, on or about the
morning of April 15, 2009, presided over the trial of defendant, Christina
Twaddle regarding a charge of public drunk in State of Mississippi v. Christian
(sic) Twaddle, Docket 278, Page 582, Lincoln County Justice Court. After
hearing testimony, [Judge Boone] found Twaddle guilty and imposed a fine of
$100.00 plus costs of $139.00; a total of $239.00. [Judge Boone] told Twaddle
and her attorney, Raymond O. Boutwell, Jr., that the sum must be paid no later
than 5 p.m. that same day.
Around noon on April 15, 2009, shortly after Twaddle’s trial, [Judge Boone]
saw Twaddle at a local gasoline station and inquired as to whether he knew
her. Twaddle told him she had appeared before him that morning in court. He
then asked if she would ride with him in his automobile to discuss payment of
the fine. Twaddle, thinking she could work out payment arrangements, agreed
and left the gasoline station with [Judge Boone]. [Judge Boone] now admits
that he and Twaddle left the gasoline station together in his vehicle and he
testified that Twaddle stated to him at the Murphy Oil station that “I thank you
for reducing my fine.” At the Commission hearing Judge Boone and his clerk,
Melanie Green, testified that the reducing of the fine occurred in open court.
The recorded telephone conversation cited in [these findings] refutes both their
testimony.
After being served with the Formal Complaint in this matter by the
Commission investigator, Mikell Buckley on August 6, 2009, [Judge Boone]
initially denied riding [with] Twaddle in his truck. At that same time he also
told Buckley that “he was a Christian and that he allowed the devil to take hold
of him.” He also expressed regret about the incident and that “the devil got
ahold” of his tongue and “made it wicked” and that he had “never really done
anything like this before.” 3 The next morning, at the request of [Judge Boone],
2
To include all the facts we find significant to today’s case, we have supplemented
the Commission’s findings of fact in footnotes.
3
Buckley’s complete statement is as follows:
Judge Boone was extremely upset. He stated to me immediately that he was
a Christian and that he had allowed the devil to take hold of him. Judge Boone
9
Judge Aubrey Rimes, Justice Court Judge in Pike County, called Ms. Buckley
with an admission that [Judge Boone] stated to him that he had indeed ridden
with Twaddle in his vehicle and wished to straighten out his prior statement
to her.
During the time [Judge Boone] and Twaddle were in his vehicle, [Judge
Boone] touched Twaddle on the breast and crotch area. [Judge Boone] told
Twaddle that he would “fix her fine” in exchange for a sexual act. [Judge
Boone] drove Twaddle to Rite-Aid Drug Store and asked that she meet him
around 3 o’clock p.m. after he completed his afternoon docket. [Judge Boone]
and Twaddle exchanged cellular telephone numbers and [Judge Boone] left.
[Judge Boone] called Twaddle on numerous occasions on the afternoon of
April 15, 2009 to arrange the meeting and cell phone records were obtained
verifying this.
Twaddle was picked up at Rite-Aid Drugs by her godson, Megel Jackson.
Twaddle immediately told Jackson what had occurred during her ride with
[Judge Boone]. During the Commission hearing, [Judge Boone] says that he
only made “a little block” with Twaddle. Both Twaddle and Megel Jackson
testified that the ride with Judge Boone lasted 15 to 20 minutes. Twaddle and
Jackson then went to the law office of Raymond Boutwell and advised him of
the incident regarding [Judge Boone]. Acting on the advice of counsel,
Twaddle went to the Lincoln County Sheriff’s Department to report the
incident. While at the Sheriff’s Department, Twaddle’s statement was taken
and recorded by the investigator for the Lincoln County District Attorney’s
also expressed regret about the incident.
As I said earlier, he was extremely concerned about his reputation and his
judgeship, because of the nature of the complaint. As I said, I -- throughout
the time he was talking, I asked him to -- to retain counsel.
He told me that he did, in fact, call this girl but that he did it because Nolan
Jones had told him about her.
And I said, “I don’t know what you mean by telling him about you.”
“Well, I knew about her. And I did call her. I never should have.” He said
that -- I remember this explicitly -- that he -- the devil got ahold of his tongue
and made it wicked and that -- and he began to cry.
(Emphasis added.)
10
Office, Truett Simmons. The interview began at 3:45 p.m. on April 15, 2009
and concluded at 4:17 p.m. the same day. A copy of the tape was introduced
at the hearing in this matter. As a result of the interview, Truett Simmons filed
a complaint against [Judge Boone] with the Commission.
On the afternoon of April 15, 2009, Twaddle paid $139.00 to the justice court
clerk of Lincoln County, Mississippi after [Judge Boone] sua sponte reduced
the amount owed by $100.00.
[Judge Boone] denies touching Twaddle and testified that he only took her
riding because she told him that her attorney, Raymond Boutwell, was “out to
get him.” 4 [Judge Boone] also testified that he reduced the fine of $100.00
from the total amount owed at the conclusion of the criminal trial in open court
at the request of Assistant Police Chief, Nolan Jones.5 [Judge Boone]’s
testimony is refuted by the recorded telephone conversation 6 and by both
4
According to Judge Boone, while at the service station, Twaddle had told Judge
Boone that her lawyer, Boutwell, who also was Brookhaven Municipal Judge, was “out to
get” Judge Boone because Boutwell was aware that Judge Boone was interested in becoming
Brookhaven Municipal Judge, thus replacing Boutwell. Again, according to Judge Boone,
this was the reason that Twaddle wanted to ride with Judge Boone in his truck – to elaborate
on this matter concerning Boutwell and Judge Boone. At the hearing before the Commission
(committee), Judge Boone admitted that he was interested in the Brookhaven municipal
judgeship because he “need[ed] the extra income to support my family, and my wife is
retired.” Interestingly, Boutwell, at the Commission hearing, testified that, just recently,
before the hearing, he had learned that Judge Boone, who is not an attorney, was trying to
get appointed as Brookhaven Municipal Judge, “[b]ut that’s impossible, because you have
to be an attorney to be a municipal judge in Brookhaven because of the number of citizens
that we have.”
5
Officer Jones testified at the hearing that he had called Judge Boone on the morning
of April 15 and requested that Judge Boone help him with Twaddle because Officer Jones
was interested in cultivating her as a confidential informant. Officer Jones testified that
Twaddle was with him in his office when he made the phone call to Judge Boone. Twaddle
testified that she was not present in Officer Jones’s office, nor was she aware of Jones’s
request for help.
6
Two phone conversations between Judge Boone and Twaddle that afternoon are
recorded. In their first conversation, Twaddle inquired about her fine. Judge Boone replied,
“[W]hy don’t you just come by the courthouse and we’ll see what we can do with
it?” Twaddle then asked whether she needed to do community service. Judge Boone
responded, “No, no, we’ll see. I’ll have to get with Nolan [Jones] and see what he wants to
do with it . . . . Just holler at me . . . and we’ll see if I can’t help you out with it.” The
11
Twaddle and her attorney, Boutwell. They testified that the amount Twaddle
was ordered to pay as a result of her misdemeanor conviction was $239.00.7
Also, contrary to [Judge Boone]’s testimony and that of his clerk, Melanie
Green, [Judge Boone] called Twaddle during her interview with Truett
Simmons at around 4 o’clock p.m. and told her that he had “fixed” her fine and
reduced the amount by $100.00.8 Considering [Judge Boone]’s lack of
truthfulness about this issue, as well as his failure to be honest with the
Commission investigator when served with the Complaint, supports (sic) this
Commission’s finding that [Judge Boone]’s assertions regarding what
happened during the ride are not credible. Twaddle immediately reported the
incident and took appropriate steps to notify the proper authorities regarding
[Judge Boone]’s misconduct.
¶13.
Based on the record in today’s case, we find that, under Section 177A of the
Mississippi Constitution of 1890, as amended, Judge Boone’s actions constituted willful
misconduct in office and conduct prejudicial to the administration of justice which brings the
judicial office into disrepute, and that Judge Boone has violated Canons 1, 2A, 2B, 3B(2),
3B(4), and 4A.
A.
Canon 1
dialogue from this first conversation indicates that Judge Boone had not yet modified
Twaddle’s fine. During their second conversation, Twaddle asked about the amount she had
to pay. Judge Boone said, “I got it fixed for you.” He said he had reduced her fine by “[a]
hundred dollars.” He then apparently checked his computer and told her that she would need
to pay $139. Considering both conversations together, it is reasonable to infer that Judge
Boone had altered Twaddle’s fine at some point between the two phone calls.
7
Boutwell maintained that Judge Boone had imposed a fine in excess of $230 that
morning. Boutwell, who serves as a municipal judge, explained that he remembered the
amount of Twaddle’s fine because, as a municipal judge, he had imposed fines in similar
cases. Boutwell said that $186.50 was a typical fine associated with a case such as
Twaddle’s. He specifically recalled being “a little ill” that Twaddle’s fine was more than
this.
8
When Buckley initially discussed the matter with Melanie Green, Green told
Buckley that Twaddle’s fine was changed in the afternoon. At the hearing, Green
contradicted her earlier statement and stated that the fine was changed in the morning, during
open court.
12
¶14.
Canon 1 states:
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.
¶15.
The Commission found that Judge Boone had violated the “very essence” of Canon
1, because his actions diminished the public’s confidence in the judiciary. See Miss. Comm’n
on Judicial Performance v. Brown, 37 So. 3d 14, 18-19 (Miss. 2010) (violation of Canon
1 based, inter alia, on inappropriate sexual touching); Miss. Comm’n on Judicial
Performance v. Spencer, 725 So. 2d 171, 177 (Miss. 1998) (violation of Canon 1 stemming
from ex parte communications).
B.
¶16.
Canon 2A
Canon 2A states:
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.
¶17.
The Commission found that Judge Boone’s fondling Twaddle and his request for oral
sex in return for a fine reduction violated Canon 2A. Citing the canon’s Comment, the
Commission found that Judge Boone “not only created the appearance of impropriety, but
actually behaved improperly by assaulting a litigant and attempting to negotiate sexual favors
in exchange for [Judge Boone] ‘helping’ her with her fines.” The Commission concluded
by finding that Judge Boone’s actions not only eroded, but “shattered,” the public’s
confidence in the judiciary.
13
¶18.
Without question, contradictory testimony was presented at Judge Boone’s hearing.
The Commission found by clear and convincing evidence that Judge Boone had fondled
Twaddle and had requested oral sex in return for reducing Twaddle’s fine. Some of the
evidence presented at the hearing revealed that: (1) Judge Boone stated to Investigator
Buckley that “he had allowed the devil to take hold of him” and that “the devil got ahold of
his tongue and made it wicked;” (2) Judge Boone lied to Buckley about the events of April
15 when Buckley initially presented him with the Commission’s Formal Complaint; and (3)
Twaddle immediately reported the incident to her attorney and the sheriff. See Miss.
Comm’n on Judicial Performance v. Lewis, 913 So. 2d 266, 270-71 (Miss. 2005).
C.
¶19.
Canon 2B
Canon 2B states:
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. Judges shall not testify voluntarily as
character witnesses.
¶20.
Based on Judge Boone’s testimony that he had told Officer Jones that he would reduce
Twaddle’s fine in order to help Jones, the Commission found that Judge Boone had violated
Canon 2B. Specifically, the Commission found that Judge Boone had “lent the prestige of
his office to advance the interests of [Jones] and gave Jones the impression that he was in a
special position to influence [Judge Boone].”
¶21.
We have held that conduct similar to that of Judge Boone’s violates the Code of
Judicial Conduct. Regarding judges’ telephone contacts, we previously have held that it is
14
improper for judges to have contact with those involved in cases before them. Gunn, 614
So. 2d at 389; Miss. Comm’n on Judicial Performance v. Willard, 788 So. 2d 736, 744
(Miss. 2001). We even have admonished judges that it is improper “merely to listen to
another person involved in pending litigation.” Willard, 788 So. 2d at 741 (quoting Miss.
Comm’n on Judicial Performance v. Chinn, 611 So. 2d 849, 852 (Miss. 1992)) (emphasis
added); see generally Uniform Rule of Procedure for Justice Court 1.05.9 In the case in
which another person initiates the ex parte communication via telephone, we have directed
judges to transfer the call to the clerk’s office. Gunn, 614 So. 2d at 389. We even have
found that a judge’s motive, even if “to accord fairness to the litigant,” does not forgive the
wrongfulness of the contact. Miss. Comm’n on Judicial Performance v. Dodds, 680 So. 2d
180, 198 (Miss. 1996).
¶22.
The conduct in today’s case involves a telephone conversation with Officer Jones,
which Jones initiated. Jones was interested in Twaddle becoming a confidential informant
and had asked Judge Boone to reduce her fine in order to gain her trust. Despite Officer
Jones’s initiating the conversation and Judge Boone’s claim that he had wanted to help
Officer Jones and Twaddle, Judge Boone’s actions still were highly improper. Judge Boone
9
Rule 1.05 states:
No person shall undertake to discuss with, or in the presence of, or hearing of
the judge, the law or facts or alleged facts of any case then pending in the
court, or likely to be instituted therein, except in the orderly progress of the
trial, and arguments or briefs connected therewith; nor attempt in any manner,
except as stated above, to influence the decision of the judge in any manner.
15
has a duty to follow diligently the Code of Judicial Conduct, and he failed to do so in his
conversation with Officer Jones.
¶23.
We take this opportunity to remind all judges and law enforcement officials of the
impropriety in having any ex parte communications with each other on the merits of pending
litigation. Such conduct ultimately might affect a judge’s subsequent decision in open court.
Here, it is obvious that Officer Jones’s ex parte communication with Judge Boone before
Twaddle’s hearing had an effect on the ultimate outcome, because Judge Boone in fact
reduced the amount of Twaddle’s fine at Jones’s request. Notably, Judge Boone’s clerk
testified that the judge often reduced fines at the behest of law enforcement officials:
Q: Now, do you often reduce fines for Nolan Jones?
A: Not necessarily Nolan Jones. But we have in the past helped other officers,
other agencies, if they’ve asked us – you know, they had someone coming
through if they ask us can you maybe help this person. We do that. It’s not
nothing uncommon.
Q: So that happens frequently?
A: Yeah, we do. We try to help when we can.
Q: And would that be a reduction or a suspension of the fine?
A: Yes.
When asked whether “other people ask you for help,” Judge Boone responded equivocally,
“No, ma’am, not – you know, it’s some people like – that will ask for court costs, but I
consider them case by case.” Moreover, despite Judge Boone’s recognizing that “back in our
schooling they say we can’t help with that fine,” he testified clearly that he reduced
Twaddle’s fine “because [Officer Jones] asked me to do it.” Judge Boone elaborated, saying:
16
Right before the court, Nolan Jones asked me to – he knew her. And he asked
me if I could help her with the fines on it or whatever I could do to help her.
I told him as far as my legal power, all I could do was the county fine. I could
not help with the state assessment or anything like that.
Thus, Judge Boone admitted that he had reduced Twaddle’s fine based solely on Officer
Jones’s out-of-court, ex parte request, despite his having had at least some understanding that
such conduct was prohibited. In his brief to this Court, Judge Boone “categorically denies
that his conduct is in violation of [Section] 177A of the Mississippi Constitution.” (Emphasis
added.) The judge has stubbornly maintained that his actions were entirely proper throughout
the proceedings, despite his knowledge to the contrary. We emphasize here that Officer
Jones should not have contacted Judge Boone. But when he did, Judge Boone should have
firmly refused to discuss Twaddle’s case with Jones.
D.
¶24.
Canon 3B(2)
Canon 3B(2) states:
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.
¶25.
The Commission found that Judge Boone’s contacts with Officer Jones and his
conduct toward Twaddle – specifically requesting fellatio in return for a reduced fine –
violated Canon 3B(2).
E.
¶26.
Canon 3B(4)
Canon 3B(4) states:
Judges shall be patient, dignified, and courteous to litigants, jurors, witnesses,
lawyers, and others with whom they deal in their official capacities, and shall
require similar conduct of lawyers, and of their staffs, court officials, and
others subject to their discretion and control.
17
¶27.
The Commission found that Judge Boone’s “indignant acts in taking a litigant for a
ride in his vehicle and fondling her while asking for sexual favors in exchange for a fine
reduction violates the very nature of this Canon.” See Brown, 37 So. 3d at 18-19; Lewis, 913
So. 2d at 271. This Court has noted that most Mississippi citizens will have their only
contact with our State’s judicial system through justice court. Because of this, we have held
that justice court judges must scrupulously follow the Code of Judicial Conduct. Miss.
Comm’n on Judicial Performance v. Sanford, 941 So. 2d 209, 215 (Miss. 2006) (citing In
re Bailey, 541 So. 2d 1036, 1039 (Miss. 1989)).
F.
¶28.
Canon 4A
Canon 4A states:
A.
Extra-judicial Activities in General. A judge shall conduct all of the
judge’s extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) demean the judicial office; or
(3) interfere with the proper performance of judicial duties.
¶29.
The Commission found that there was “an intertwining of judicial vs. extra-judicial
activities” in today’s case. Further, the Commission found that Judge Boone’s actions
toward Twaddle “cast[s] doubt on his ability to act as a judge, demeans the judicial office and
interferes with the proper performance of his judicial duties.”
¶30.
We return to In re Anderson, 412 So. 2d 743 (Miss. 1982). Because the Court was
addressing for the first time the provisions of Section 177A, the Court considered the
experiences of Arizona, California, North Carolina, North Dakota, Oregon, Texas, and West
18
Virginia in order to determine the solemn obligations of this Court in reviewing cases coming
from the Mississippi Commission on Judicial Performance. Id. at 745-46.10 Most, if not all,
of these states, had constitutional provisions at least somewhat similar to our Section 177A.
Id. at 745.11 This Court also considered Mississippi Code Section 9-19-1, et seq. (Supp.
1981), and Mississippi Commission on Judicial Performance Rules 8D & 10E. Id. at 744-45.
¶31.
The Court found of significant import the California experience since that state had
a constitutional provision “almost identical to our Section 177A.” Id. at 746. This Court then
quoted extensively from Geiler v. Commission on Judicial Performance, 515 P. 2d 1 (Cal.
1973), and announced that the California standard should be adopted by this Court. Id. In
the end, this Court pronounced the standard by which it would consider these cases:
Therefore, it appears we are required to be a factfinding body, at least to some
degree, in every case of this nature.
...
The power to impose sanctions is delegated solely to this Court; it therefore
follows we have an obligation to conduct an independent inquiry of the record
in order to make our final determination of the appropriate action to be taken
in each case. In so doing, we will accord careful consideration [to] the findings
of fact and recommendations of the Commission, or its committee, which has
had the opportunity to observe the demeanor of the witnesses.
Id. In essence, since the Court was considering a California constitutional provision “almost
identical” to our constitutional provision, the Court followed an approach this Court has
10
It is apparent that this Court struggled mightily with this task, since the mandated
review of judicial misconduct cases was foreign to the traditional appellate standards of
review such as de novo, abuse of discretion, manifest error and the like, when considering
cases appealed from our trial courts.
11
On this point, in Anderson, this Court stated that “[c]ourts in other jurisdictions with
constitutional provisions as our own Section 177A have attempted to construe these
provisions.” In re Anderson, 412 So. 2d at 745.
19
taken in the past concerning the “borrowed statute” doctrine. Pope v. Brock, 912 So. 2d 935,
938-39. (Miss. 2005).
¶32.
Pursuant to our mandated review under Anderson, after many efforts to at least reach
a majority decision on whether the facts surrounding the sexual allegations against Judge
Boone toward Christina Twaddle have been established by clear and convincing evidence,
the Court is unable to do so. Admittedly, the Court is splintered on this issue. However,
Judge Boone’s ex parte communications with Officer Jones and Twaddle, as well as the
inappropriate manner in which he handled the fine reduction, run afoul of our judicial
canons. The facts surrounding these actions were established by clear and convincing
evidence, and form the foundation for our decision in this matter.
¶33.
In sum, we find that Judge Boone violated Canons 1, 2A, 2B, 3B(2), 3B(4), and 4A
of the Judicial Code of Conduct, and that his actions constituted willful misconduct in office
and conduct prejudicial to the administration of justice which brings the judicial office into
disrepute, pursuant to Article 6, Section 177A, of the Mississippi Constitution of 1890, as
amended. We now move to consideration of the appropriate sanctions in this case.
II.
¶34.
WHETHER THE JUDICIAL MISCONDUCT WARRANTS
REMOVAL FROM OFFICE AND ASSESSMENT OF COSTS IN
THE SUM OF $1,907.05.
The Commission has recommended that this Court find Judge Boone violated various
canons of our Code of Judicial Conduct and that, under Section 177A of the Mississippi
Constitution of 1890, as amended, he should be removed from the office of justice court
judge and assessed all of the costs of these proceedings in the amount of $1,907.05. For the
reasons discussed below, we respectfully disagree with the Commission’s recommendation
20
and impose, instead, a ninety-day suspension without pay and assessment of costs in the
amount of $1,907.05.
¶35.
The appropriateness of sanctions is weighed based on the following factors: (1) the
length and character of the judge’s public service; (2) whether there is any prior caselaw 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; and (6) the presence or absence of mitigating or aggravating factors. Gibson, 883
So. 2d at 1157. The primary purpose of judicial sanctions is not punishment of the individual
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) (quoting In re Harned, 357 N.W.2d 300, 302 (Iowa 1984)). In
light of our findings already discussed, we discuss the Gibson factors only as to Judge
Boone’s judicial misconduct concerning the ex parte communications with Jones and
Twaddle and the improper fine reduction.
A.
¶36.
The Length and Character of Judge Boone’s Public Service
Judge Boone has been a justice court judge for three years. The record reveals no
other public service on the part of Judge Boone.
B.
¶37.
Prior Caselaw on Point
Turning to Judge Boone’s ex parte contacts with Officer Jones, although there is no
case directly on point, we find Mississippi Commission on Judicial Performance v. Vess,
10 So. 3d 486 (Miss. 2009), to be somewhat similar. In Vess, this Court ordered a public
reprimand, $2,000 fine, and costs of $100 for a judge who had set aside a guilty verdict after
21
engaging in ex parte communications with the prosecutor and the victim’s family. Id. at 488.
See also Sanford, 941 So. 2d at 211-12 (justice court judge suspended from office for thirty
days for engaging in ex parte communications with sheriff, requesting that sheriff inform
arresting officer to be late for court in order to dismiss DUI case for lack of prosecution);
Willard, 788 So. 2d at 743 (justice court judge removed from office based on thirty-one
counts of misconduct, including ex parte communications with law enforcement).
Concerning the ex parte communications with Twaddle on the issue of the fine reduction,
we have sanctioned judges in the past for similar misconduct. See Miss. Comm’n on Judicial
Performance v. Anderson, 32 So. 3d 1180 (Miss. 2010); Miss. Comm’n on Judicial
Performance v. Britton, 936 So. 2d 898 (Miss. 2006). In these two cases, the judges were
sanctioned, inter alia, by way of a thirty day suspension from office; however, what makes
Judge Boone’s ex parte communications with Twaddle more egregious than those depicted
in Anderson and Britton is the fact that Judge Boone allowed Twaddle to ride around in
public in his truck for a period of time, and, during the time that Twaddle’s case had yet to
be finalized by way of the fine payment. Judge Boone’s actions exhibited a monumental
lapse of sound judgment, because an undetermined number of Lincoln County citizens had
the occasion to see one of their elected judges riding around town with a female litigant.
Certainly the citizenry of Brookhaven and Lincoln County, upon learning of the later fine
reduction, at the very least, could infer that Twaddle had received favorable treatment from
Judge Boone via the fine reduction as a result of this ex parte communication.
C.
Magnitude of the Offense and Harm Suffered
22
¶38.
The magnitude of the offenses in today’s case is significant and places the entire
judiciary in a negative light. As the Commission found, Judge Boone “also involved another
judge and his clerk as well as the Assistant Chief of Police in Brookhaven, Mississippi and
made unfounded accusations against Twaddle’s attorney, Raymond Boutwell.”
D.
¶39.
Pattern of Conduct
We need to look no further than the hearing testimony of deputy justice court clerk
Melanie Green and Judge Boone, himself, discussed supra, to come to the inescapable
conclusion that Judge Boone’s ex parte communications with law enforcement officials
exhibit a habitual pattern of conduct which affects our ultimate decision on the appropriate
sanction to impose in today’s case.
E.
¶40.
Moral Turpitude
This Court has defined moral turpitude as “actions which involve interference with
the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such
action which bring the judiciary into disrepute.” Gibson, 883 So. 2d at 1158, n.2. Furthering
our discussion of moral turpitude, this Court has stated:
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 of a judge’s position for greed or other inappropriate
motives. If the conduct willfully subverts justice, more punishment is
warranted.
Miss. Comm’n on Judicial Performance v. Gordon, 955 So. 2d 300, 305 (Miss. 2007)
(emphasis added). Even without considering the allegations of sexual conduct, we find from
the record that the totality of Judge Boone’s actions, including lying to the Commission
investigator, constitutes moral turpitude.
23
F.
¶41.
Mitigating or Aggravating Circumstances
Although Judge Boone has not admitted his wrongful conduct on the record, he did
acknowledge remorse in his statement to Buckley. Buckley testified at the hearing that Judge
Boone had expressed regret about the incident.
¶42.
The Commission’s recommendation, based for the most part on a finding of Judge
Boone’s sexual molestation of Twaddle, was that Judge Boone be removed from office. But,
we find, based on the totality of the circumstances revealed in the record before us, that
Judge Boone’s actions require the imposition of a ninety-day suspension without pay, a
public reprimand, and assessment of costs of this proceeding in the amount of $1,907.05.
CONCLUSION
¶43.
We are mindful of the many selfless contributions made by the duly appointed
members of the Mississippi Commission on Judicial Performance. Not surprisingly, they
once again have dutifully performed their mandated responsibilities in this case. Their
allegiance to duty in this case, and in all other cases, does not go unnoticed by this Court. In
the end, struggle though we do in these cases, as did this Court in Anderson, we likewise
must carry out our mandated duties, which we alone can perform. This is our charge. In re
Anderson, 412 So. 2d at 746. Judge Boone’s actions constituted willful misconduct
prejudicial to the administration of justice which brought the judicial office into disrepute.
Effective upon the date of the issuance of this Court’s mandate, we thus order Judge Ralph
Boone to be suspended from the office of justice court judge, post one, Lincoln County, for
a period of ninety days without pay; to be publicly reprimanded; and to be assessed costs of
the proceedings in the amount of $1,907.05. The public reprimand shall be read in open
24
court by the presiding judge on the first day of the next term of the Circuit Court of Lincoln
County in which a jury venire is present, with Judge Boone present.
¶44. LINCOLN COUNTY JUSTICE COURT JUDGE RALPH BOONE SHALL BE
SUSPENDED FROM OFFICE FOR A PERIOD OF NINETY (90) DAYS WITHOUT
PAY, EFFECTIVE ON THE DATE OF ISSUANCE OF THIS COURT’S MANDATE;
PUBLICLY REPRIMANDED; AND ASSESSED COSTS OF $1,907.05. THE PUBLIC
REPRIMAND SHALL BE READ IN OPEN COURT BY THE PRESIDING JUDGE
OF THE LINCOLN COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE
NEXT TERM OF THAT COURT IN WHICH A JURY VENIRE IS PRESENT
AFTER THE ISSUANCE OF THIS COURT’S MANDATE, WITH JUDGE BOONE
IN ATTENDANCE.
WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS,
CHANDLER, PIERCE AND KING, JJ., CONCUR.
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