Mississippi Commission on Judicial Performance v. McGee

71 So. 3d 578, 2011 Miss. LEXIS 388, 2011 WL 3505311
CourtMississippi Supreme Court
DecidedAugust 11, 2011
Docket2011-JP-00114-SCT
StatusPublished
Cited by13 cases

This text of 71 So. 3d 578 (Mississippi Commission on Judicial Performance v. McGee) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mississippi Commission on Judicial Performance v. McGee, 71 So. 3d 578, 2011 Miss. LEXIS 388, 2011 WL 3505311 (Mich. 2011).

Opinions

[580]*580CARLSON, Presiding Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance (Commission) filed two formal complaints against Alcorn County Justice Court Judge Jimmy McGee, alleging willful misconduct and conduct prejudicial to the administration of justice which brings the office into disrepute. The Commission and Judge McGee submitted to this Court a joint motion for approval of the recommendation of a 120-day suspension from office without pay, a public reprimand, and assessment of costs of this proceeding in the amount of $100.

¶ 2. After our independent review, we agree that Judge McGee’s conduct violated various canons of our Code of Judicial Conduct and constituted 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 actionable pursuant to the provisions of the Mississippi Constitution. Miss. Const, art 6, § 177A (1890). However, we respectfully disagree with the Commission’s recommendation. For the reasons discussed below, we find that Judge McGee’s actions warrant a public reprimand, suspension from office without pay for 270 days, and assessment of costs of this proceeding in the amount of $100.

FACTS AND PROCEEDINGS BEFORE THE COMMISSION

¶ 3. The Commission appropriately consolidated the two formal complaints and referred to the charge set out in Inquiry No.2009-241 as Count One, and to the charge set out in Inquiry No.2010-046 as Count Two. In lieu of a hearing before the Commission, Judge McGee (Respondent) and the Commission entered into an Agreed Statement of Facts and Proposed Recommendation, which states, the following:

COUNT ONE (2009-241)
During April, 2008 the Respondent learned that a relative of the Respondent had allegedly been the victim of a crime. Respondent actively participated in the investigation of the matter which resulted in the indictment and arrest of a person identified herein as “A.B.”
Subsequent to the indictment and arrest of A.B., the Respondent, in his official capacity as Justice Court Judge, interfered with the orderly prosecution of the ease against A.B. Respondent interfered with A.B.’s attempt to post bond, insisting that A.B. only be allowed to post a cash or written bond. Respondent became upset upon learning that A.B.’s family was allowed to post a property bond rather than a cash bond of $50,000 as Respondent proposed to law enforcement. Subsequently, the Respondent disrupted an executive session of the Alcorn County Board of Supervisors by entering the closed meeting uninvited, angrily complaining of the sheriffs actions relating to the bond and otherwise causing a disturbance and an interruption of the business of the said Board of Supervisors.
Respondent then interfered with A.B.’s attempts to employ legal counsel by discouraging local attorneys from representing A.B. thereby attempting to deny A.B. his constitutional right to counsel and to a fair criminal proceeding.
On or about the 13th day of April, 2009, Respondent appeared at the public hearing for acceptance of A.B.’s misdemean- or guilty plea and sentencing in the Circuit Court of Alcorn County, Mississippi. The presiding Circuit Judge allowed the Respondent to address the Court and [581]*581the following was stated by Respondent on the record and in open court:
I could assure you that if anything like this ever happened to anybody that I know, my advice to them would be do not use the court, handle it themselves.
I would like for everyone in this court to know that had I had this to do over again we would never had went to a grand jury, that we would have taken care of this down at Biggersville, Mississippi, down on the farm like things should have been taken care of.
COUNT TWO (2010-046)
The Respondent, in his official capacity as Justice Court Judge, individually and in concert with others, allowed certain misdemeanor charges to be remanded, non-adjudicated and “retired to the files” without authority of law, thereby failing to properly adjudicate criminal matters assigned to him. Specifically, Respondent, upon Motion of the County Prosecuting Attorney to Retire to Files, allowed the de facto non-adjudication of charges of Driving Under the Influence (DUI), said conduct likewise amounting to a reduction of the charge, a violation of § 63-11-39 of the Mississippi Code of 1972, as amended, Implied Consent Law.1
The Respondent, without authority of law and in violation of § 63-11-39 of the Mississippi Code of 1972, as amended, Implied Consent Law,2 on motion of the County Prosecuting Attorney and in concert with her, “retired to the files” charges of DUI upon defendants’ successful completion of alcohol and drug treatment programs when the Respondent knew, or should have known, that the successful completion of such treatment programs by defendants could not serve as a lawful basis for the non-adjudication of DUI charges.3

¶ 4. This Agreed Statement of Facts and Recommendation (Agreement) was signed by John B. Toney, the Commission’s executive director, Judge McGee, and Judge McGee’s counsel. Thereafter, the Commission, based on this Agreement, submitted its Findings of Fact and Recommendation. The Commission found by clear and convincing evidence that by engaging in the conduct described in the Agreement, [582]*582Judge McGee, in his official capacity as Justice Court Judge, Post 2, Alcorn County, Mississippi, had -violated certain canons of the Mississippi Code of Judicial Conduct, particularly: Canons 1 (charging judges to uphold the integrity and independence of the judiciary); 2A and 2B (charging judges to avoid impropriety and the appearance of impropriety, in all activities, including respecting and complying with the law and not allowing personal relationships to influence their conduct or judgment); 3B(2) and 3B(8) (charging judges to impartially and diligently perform their judicial duties by, inter alia, being faithful to the law and avoiding being swayed by partisan interests as well as disposing of all judicial matters promptly, efficiently and fairly); and 4A(2) (charging judges to conduct their extrajudicial activities so as to not demean the judicial office); and that this judicial conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute under Section 177A of the Mississippi Constitution of 1890.

¶ 5. On the other hand, the Commission further found in mitigation that Judge McGee had acknowledged his errors and had fully cooperated with the investigation by the Commission; that in count one, Judge McGee had acknowledged and regretted that, in his effort to protect his relative, he improperly had used the prestige of his office as justice court judge to interfere with the fair and orderly prosecution of A.B.

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Mississippi Commission on Judicial Performance v. McGee
71 So. 3d 578 (Mississippi Supreme Court, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
71 So. 3d 578, 2011 Miss. LEXIS 388, 2011 WL 3505311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mississippi-commission-on-judicial-performance-v-mcgee-miss-2011.