Mississippi Commission on Judicial Performance v. Shoemake

191 So. 3d 1211, 2016 WL 1459109, 2016 Miss. LEXIS 155
CourtMississippi Supreme Court
DecidedApril 14, 2016
DocketNo. 2015-JP-00996-SCT
StatusPublished
Cited by13 cases

This text of 191 So. 3d 1211 (Mississippi Commission on Judicial Performance v. Shoemake) 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. Shoemake, 191 So. 3d 1211, 2016 WL 1459109, 2016 Miss. LEXIS 155 (Mich. 2016).

Opinions

COLEMAN, Justice,

for the Court:

¶ 1. The Mississippi Commission on Judicial Performance issued a Formal Complaint against Chancellor David Shoemake on October 17, 2013, alleging judicial misconduct. After a formal hearing on March 12, 2015, the Commission recommended to the Supreme Court that Judge Shoemake be removed from office, fined $2,500, and assessed costs in the amount of $5,882.67. Judge Shoemake, disputes the Commission’s findings and recommendation. We hold that Judge Shoemake improperly signed ex parte orders and contributed to the mismanagement; of a ward’s estate. However, the Commission did not prove by clear and convincing evidence that Shoe-make gave testimony that he knew or should have knowri would be misleading. [1213]*1213We order that Judge Shoemake shall be publicly reprimanded, shall be suspended from office for a term of thirty days without pay, shall pay a fine of $2,500, and shall pay costs in the amount of $5,882.67.

BACKGROUND

Factual History

¶ 2. On October 11, 2013, during a regularly scheduled meeting of the Commission, the Commission found probable cause to file a Formal Complaint against Chancellor David Shoemake of the Thirteenth Chancery Court District. The Complaint contained allegations that Judge Shoemake had contributed to the mismanagement of the conservatorship of Victoria Denise Newsome, whose case is already well-known to the Court. See Mississippi Comm’n on Judicial Performance v. Walker, 172 So.3d 1165 (Miss.2015); In the Matter of the Conservatorship of Victoria Denise Newsome, Cause No. 2010-0146, in the Chancery Court of Simpson County, Mississippi. Regrettably, the Court must once again address judicial misconduct connected to Newsome’s conservatorship.

¶ 3. The case of Victoria Newsome’s con-servatorship had been assigned to Judge Joe Dale Walker in Simpson County, Mississippi. Walker ordered that Marilyn. Newsome, Victoria’s mother, serve as the conservator for the conservatorship and approved the medical negligence settlement that then funded Victoria’s conserva-torship. Walker further ordered that the chancery court’s law clerk, Keely McNulty,1 serve as both the attorney for the conservator (Marilyn Newsome) and as guardian ad litem for Victoria Newsome.

¶4. Walker ordered that a house be built for the use and benefit of Victoria' Newsome and tasked McNulty with soliciting a minimum of four construction bids. C.T. Construction, owned by Walker’s nephew, Chad Teater, submitted one of the four bids. Because Walker’s family member- submitted a bid, on July 21, 2011, McNulty sent Shoemake a seventeen-page fax, including a petition, a proposed order, and five bids. On July 22, 2011, Walker entered an Order Transferring Cause for Limited Purpose “of approving and acceptance of the bid(s) for the construction of the home for the ward.”

¶ 5. On August 2, 2011, the court clerk filed Shoemake’s Order Concerning Approval and Acceptance of Bids for the Construction of a Residence for the Ward. The Order stated that Shoemake had reviewed the petition and bids and that he was approving the lowest bid for the amount of $273,075.14. Finally, the order transferred the case back to Walker. Shoe-make testified at his show cause hearing that he “recalled] writing [his] own order because [he] felt that [McNulty’s proposed order] was not appropriate.”

¶ 6. Over the next several months, Shoe-make executed and filed four more orders affecting the Newsome Conservatorship. A second order was filed on August 2, 2011, approving the Construction Management Agreement of C.T. Construction. No petition requesting relief exists at all within the court file or the exhibits presented to the Court.

■¶ 7. A third order, filed August 9, 2011, authorized the transfer of $258,395.14 to Marilyn Newsome’s Conservatorship Account “for the construction of the ward’s permanent home.” McNulty had informed Shoemake via email that the bank had refused to release the funds without a court order explicitly authorizing it to do so. When Shoemake replied, asking whether he could sign the attached order [1214]*1214and at what point Judge Walker would take' the ' case back ■> from- Shoemake, McNulty responded that either he or Walker could ■ sign the order. McNulty further told Shoemake that “Judge Walker wanted [Shoemake] to handle all portions related to approving the bids/management contract/etc.” A petition for this relief had not been filed; according to McNulty’s email, the order “piggy back[ed]” upon the August 2, 2011, order.

¶8. A fourth order, filed January 25, 2012, disbursed $23,000 to the home’s contractor, allegedly as reimbursement for stolen tools. The petition requesting the relief was unsworn and signed only by McNulty, despite the petition having been filed on behalf of Marilyn Newsome.

¶ 9. A fifth order bears the handwriting of multiple parties. Dated March 26,2012, and signed ‘ by Shoemake, the order changed the bid amount from $273,075.14 to $296^575.15. In the margin beside the numbers, a feminine-appearing script noted that the change was effective, nunc pro tunc, to the order filed August 2, 2011, which accepted the C.T. Construction bid as the lowest of the five bids submitted. Walker handwrote that the order was “filed” on March 26, 2012. The petition requesting the relief was unsworn and signed only by McNulty.

Procedural History

¶ 10. After events occurring outside the scope of the case sub judice, Marilyn New-some demanded that McNulty cease representing her as the attorney for the conservator. She also filed a complaint with the Commission on May 2, 2013, alleging that Walker and Shoemake had worked in concert to siphon money from the conservar torship, to allow the poor construction of the handicapped-accessible home for Victoria, to protect McNulty, and generally to cover up their misconduct.

¶ 11. The Commission also voted unanimously to enter an Order to Show Cause why the Commission should not recommend to the Supreme Court of Mississippi that Shoemake be suspended from office during "the pendency of the Commission’s inquiry into the allegations of misconduct. The Commission filed the Order to Show Cause on October 16, 2013. On October 17, 2013, Shoemake was given notice of the Formal Complaint against him, laying out the factual background of the complaint. Shoemake claims that the receipt of the Formal Complaint was the first notice he had of proceedings against him; the Commission maintains that he had been on notice since August, when he discussed with Commission staff the allegations of misconduct lodged against Judge Joe Dale Walker.

¶ 12. The Commission entered an Amended Order to Show Cause on October 30, 2013, instructing Judge Shoemake to appear at the offices of the Commission on Friday, November 1, 2013, for his show cause hearing. On October 31, Judge Shoemake appeared at the Commission Office to testify at Judge Walker’s show cause hearing. McNulty asserted her Fifth Amendment right to remain silent at Walker’s'hearing. The next day, at Shoe-make’s show cause hearing, she also asserted her right to remain silent, refusing to answer questions about her involvemént with the orders at issue in the Formal Complaint against Shoemake.

¶ 13. . At the November 1, 2013, show cause hearing, Shoemake admitted remembering drafting and signing the first order approving the C.T. Construction bid for $273,075.14., He denied any knowledge' of the last four orders and denied that he had signed them.

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