Mississippi Commission on Judicial Performance v. Mary H. Curry , 249 So. 3d 369 ( 2018 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2018-JP-00194-SCT
MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
v.
MARY H. CURRY
DATE OF JUDGMENT: 01/31/2018
TRIAL JUDGE: HON. KENT McDANIEL
COURT FROM WHICH APPEALED: MISSISSIPPI COMMISSION ON JUDICIAL
PERFORMANCE
ATTORNEYS FOR APPELLANT: DARLENE D. BALLARD
RACHEL W. MICHEL
MEAGAN E. BRITTAIN
ATTORNEY FOR APPELLEE: DERRICK T. SIMMONS
NATURE OF THE CASE: CIVIL - JUDICIAL PERFORMANCE
DISPOSITION: PUBLIC REPRIMAND - 07/26/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. The Mississippi Commission on Judicial Performance (Commission) filed a formal
complaint against Justice Court Judge Mary Curry. The complaint outlined multiple
allegations of misconduct on the part of Judge Curry, and ultimately, the Commission and
Judge Curry entered into an agreed stipulation of facts, with a proposed recommendation of
a public reprimand. The Commission and Judge Curry filed a joint motion for approval of
the recommendation with the Court. We accept and affirm the Commission’s
recommendation of a public reprimand.
FACTS AND PROCEDURAL HISTORY
¶2. Judge Curry served as the justice court judge for the Eastern District of Claiborne
County. In the instant case, Judge Curry agreed to the following findings of fact:
1. Judge Curry “has signed warrants based on affidavits sworn by her
relatives . . . .” After signing the warrants, Judge Curry would not set
bond even though the charges were misdemeanors. Judge Curry would
recuse herself from the case, citing her relationship to the affiants.
2. Judge Curry “disposed of Protection from Domestic Abuse Petitions,
in violation of the Mississippi Protection From Domestic Abuse Act .
. . [by] display[ing] a pattern of dismissing Petition for Order of
Protection From Domestic Abuse without having the statutorily
mandated hearing.”
3. Judge Curry “presided over the Initial Appearance of . . . a relative
concerning his Possession of a Controlled Substance charge” setting the
bond at $50,000. However, later, the relative filed “what purports to be
a Motion for Bond Reduction. The Motion for Bond Reduction is
blank and it does not state any reason for [the relative]’s bond to be
reduced[,]” and only contains the relative’s signature. Yet, Judge Curry
granted the reduction and reduced bond to $5,000.
4. Judge Curry waived an expungement fee and “directed the clerks to
void the receipts in [the] matter and to refund . . . the money.”
5. Judge Curry, “after being informed of th[e instant matter] and the
identity of the complainant[,] submitted a letter to the Claiborne County
Board of Supervisors, requesting that they transfer the complainant
from her position as Justice Court Clerk.” Judge Curry cited the filing
of the complaint as a reason for removal.
Judge Curry stipulated that her conduct as outlined above, violated the following canons of
the Code of Judicial Conduct: Canons 1, 2A, 2B, 3B(1), 3B(2), 3B(5), 3B(7), 3B(8), and
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3C(1). Additionally, Judge Curry stipulated that her conduct also violated Mississippi Code
Section 93-21-11 (Rev. 2013) and Mississippi Code Section 25-7-25 (Rev. 2010). Lastly,
Judge Curry agreed that her conduct violated Section 177A of the Mississippi Constitution
as it is conduct prejudicial to the administration of justice, which brings the judicial office
into disrepute.
¶3. The Commission and Judge Curry agreed to a proposed recommendation of a public
reprimand. On March 12, 2018, the Commission filed a joint motion requesting the Court
approve the Commission’s findings of fact and recommendation.
ANALYSIS
¶4. According to Section 177A of the Mississippi Constitution:
On recommendation of the commission on judicial performance, the Supreme
Court may remove from office, suspend, fine or publicly censure or reprimand
any justice or judge of this state for: (a) actual conviction of a felony in a court
other than a court of the State of Mississippi; (b) willful misconduct in office;
(c) willful and persistent failure to perform his duties; (d) habitual
intemperance in the use of alcohol or other drugs; or (e) conduct prejudicial to
the administration of justice which brings the judicial office into disrepute; and
may retire involuntarily any justice or judge for physical or mental disability
seriously interfering with the performance of his duties, which disability is or
is likely to become of a permanent character.
Also, Commission on Judicial Performance Rule 10(E) provides that the Court “shall prepare
and publish a written opinion and judgment directing such disciplinary action, if any, as it
finds just and proper. The Supreme Court may accept, reject, or modify, in whole or in part,
the findings and recommendation of the Commission.” Ultimately, it is the Court making
final decisions in judicial performance cases.
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¶5. The Commission’s findings of fact indicate that Judge Curry violated the following
canons of the Code of Judicial Conduct.
Canon 1 provides:
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.
Canon 2 provides, in pertinent part:
A. 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.
B. Judges shall not allow their family, social, or other relationships to
influence the judges’ judicial conduct or judgment. Judges should 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.
¶6. Canon 3B provides, in pertinent part:
(1) A judge shall hear and decide all assigned matters within the judge’s
jurisdiction except those in which disqualification is required.
(2) 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.
...
(5) A judge shall perform judicial duties without bias or prejudice. A judge
shall not, in the performance of judicial duties, by words or conduct
manifest bias or prejudice, including but not limited to bias or prejudice
based upon race, gender, religion, national origin, disability, age, sexual
orientation or socioeconomic status, and shall not permit staff, court
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officials and others subject to the judge’s direction and control to do so.
A judge shall refrain from speech, gestures or other conduct that could
reasonably be perceived as sexual harassment and shall require the
same standard of conduct of others subject to the judge’s direction and
control.
...
(7) A judge shall accord to all who are legally interested in a proceeding,
or their lawyers, the right to be heard according to law. A judge shall
not initiate, permit, or consider ex parte communications, or consider
other communications made to the judge outside the presence of the
parties concerning a pending or impending proceeding except that: . .
..
(8) A judge shall dispose of all judicial matters promptly, efficiently and
fairly.
¶7. Lastly, Canon 3C(1) provides:
A judge shall diligently discharge the judge’s administrative responsibilities
without bias or prejudice and maintain professional competence in judicial
administration, and shall cooperate with other judges and court officials in the
administration of court business.
¶8. The Court must first determine if Judge Curry’s actions amount to “willful
misconduct” or “conduct prejudicial to the administration of justice which brings the judicial
office into disrepute.” Miss. Const. art. 6, § 177A. The Court has held that willful
misconduct in office is:
the improper or wrong use of power of his office by a judge acting
intentionally or with gross unconcern for his conduct and generally in bad
faith. It involves more than an error of judgment or a mere lack of diligence.
Necessarily, the term would encompass conduct involving moral turpitude,
dishonesty, or corruption, and also any knowing misuse of the office, whatever
the motive. However, these elements are not necessary to a finding of bad
faith. A specific intent to use the powers of judicial office to accomplish a
purpose which the judge knew or should have known was beyond the
legitimate exercise of his authority constitutes bad faith. . . .
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Willful misconduct in office of necessity is conduct prejudicial
to the administration of justice which brings the judicial office
into disrepute. However, a judge may also, through negligence
or ignorance not amounting to bad faith, behave in a manner
prejudicial to the administration of justice so as to bring the
judicial office into disrepute.
This Court also has noted that a judge may “through negligence or ignorance
not amounting to bad faith, behave in manner prejudicial to the administration
of justice so as to bring the judicial office into disrepute.” We have further
explained that “misconduct does not have to be embedded in any form of bad
behavior”—ignorance and incompetence can amount to conduct that violates
Section 177A of the Mississippi Constitution.
Miss. Comm’n on Judicial Performance v. Harris, 131 So. 3d 1137, 1142 (¶¶ 14-15)
(Miss. 2013) (citations omitted). In its brief, the Commission explains that Judge Curry’s
involvement in her relatives’ cases violated Canon 2A, 2B, 3B(1), and 3B(5), and her failure
to adjudicate the domestic abuse cases properly by dismissing the matters without a hearing
or order violated Canons 3B(2), 3B(7), and 3B(8) and Section 93-21-1. Judge Curry’s
actions relating to refunding the expungement fee violated Canons 2A, 3B(2), and 3B(8).
Finally, Judge Curry’s actions in seeking the removal of the complainant from her job
violated Canons 2B and 3C(1). Judge Curry admitted that her actions violated the above
canons. Further, Judge Curry admitted that her actions violated Section 93-21-11, which
provides that “[w]ithin ten (10) days of the filing of a petition under the provisions of this
chapter [(Protection from Domestic Abuse)], the court shall hold a hearing, at which time the
petitioner must prove the allegations of abuse by a preponderance of the evidence[,]” as well
as Section 25-7-25, which involves justice court fees.
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¶9. We conclude that Judge Curry’s conduct violated the above canons and statutes and
that the Commission’s findings are supported by the evidence in the record, including Judge
Curry’s own admissions and other documents related to the conduct at issue. Judge Curry’s
conduct constituted willful misconduct in office and conduct prejudicial to the administration
of justice, which brings the judicial office into disrepute.
¶10. After determining that Judge Curry committed misconduct, the Court now determines
the appropriate sanctions for her misconduct. “The sanctions in a judicial misconduct case
should be proportionate to the judge’s offense.” Miss. Comm’n on Judicial Performance
v. Vess, 227 So. 3d 952, 956 (¶ 13) (Miss. 2017) (citing Miss. Comm’n on Judicial
Performance v. Harris, 131 So. 3d 1137, 1144 (¶ 23) (Miss. 2013)). The Court follows a
six-factor test in determining whether a recommended sanction is proportionate to the
offenses. Id. The factors are as follows:
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 the conduct was willful, intended to deprive
the public of assets, or if it exploited the judge’s position; and (6) the presence
or absence of mitigating or aggravating factors.
Id. at 956–57 (¶ 13) (Miss. 2017) (quoting Miss. Comm’n on Judicial Performance v.
Thompson, 169 So. 3d 857, 869 (¶ 43) (Miss. 2015)).
1. Public Service
¶11. Judge Curry had been a justice court judge for two years, but she had been in public
service as an employee of Claiborne County for thirty-four years prior to taking the bench.
2. Prior Caselaw
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¶12. Though there are no identical cases, the sanction of a public reprimand is consistent
with other caselaw involving similar conduct. In Mississippi Commission on Judicial
Performance v. Dearman, 66 So. 3d 112, 118 (¶ 26) (Miss. 2011), the Court ordered a
public reprimand for Judge Dearman, who was involved in the initial appearance of a family
member.1 Judge Curry participated in three cases involving her relatives. In regard to Judge
Curry’s dismissal of the domestic abuse matters without a hearing as required by statute, in
Mississippi Commission on Judicial Performance v. Roberts, 227 So. 3d 938, 949, 950 (¶¶
33,42) (Miss. 2017), the Court stated that “failure to follow statutory dictates” is
sanctionable, and the Court ordered Judge Roberts to be publicly reprimanded. In In re
Chambliss, 516 So. 2d 506, 506-7 (Miss. 1987), the Court ordered that Judge Charlie
Chambliss receive a public reprimand for seeking to have several police officers who were
involved in a traffic stop of Judge Chambliss removed or reassigned. Similarly, Judge Curry,
in her official capacity, attempted to have a complainant removed or transferred from her
position. See also Miss. Comm’n on Judicial Performance v. Brown, 918 So. 2d 1247
(Miss. 2005) (Judge interfered with son’s prosecution and threatened complainant’s job when
a judicial complaint was filed against judge. The Court sanctioned the judge by removal
from office and payment of costs.)
3. Magnitude of Offense
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Judge Dearman had other violations, so in addition to the public reprimand, she also
was suspended from office for thirty days without pay and assessed $100 in costs.
Dearman, 66 So. 3d at 120-121 (¶ 35).
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¶13. In Mississippi Commission on Judicial Performance v. Bustin, 71 So. 3d 598,
604–05 (Miss. 2011), the Court explained:
[M]ost citizens’ primary, and perhaps only, contact with the law is through
justice court; for that reason, justice court judges must “‘regard scrupulously’”
their office. Miss. Comm’n on Judicial Performance v. Sanford, 941 So. 2d
209, 215 (Miss. 2006) (quoting In re Bailey, 541 So. 2d 1036, 1039 (Miss.
1989)). If justice court judges do not exhibit professionalism, there is little
chance that our citizenry will understand and respect the legal process.
Sanford, 941 So. 2d at 215 (quoting In re Bailey, 541 So. 2d at 1039).
Judge Curry’s conduct eroded the public’s confidence in, and perception of, the judiciary by
allowing herself to be involved in pending matters involving her relatives, calling into
question the impartiality of the judiciary. Additionally, Judge Curry’s improper handling,
including ignoring statutory dictates, of three cases involving requests for orders of
protection from domestic abuse is of great concern due to the sensitive nature of domestic
abuse cases. Lastly, Judge Curry’s attempt to have the complainant in the instant case
removed from her position and transferred is significant. Certainly, Judge Curry’s actions
and inactions harmed the integrity of the judiciary.
4. Pattern of Conduct
¶14. While Judge Curry has not been sanctioned for misconduct before, her misconduct
spans numerous cases. Judge Curry’s conduct evidences a pattern, particularly as it relates
to her participation in multiple, different cases involving her relatives and also her dismissals
of three matters without a statutorily mandated hearing or order, involving petitioners’
requested orders of protection for domestic abuse. The Court has held on numerous
occasions that multiple incidents of improper behavior constitute a pattern. See Miss.
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Comm’n on Judicial Performance v. Darby, 143 So. 3d 564, 570 (¶ 19) (Miss. 2014); Miss.
Comm’n on Judicial Performance v. Dearman, 66 So. 3d 112, 120 (¶ 30) (Miss. 2011);
Miss. Comm’n on Judicial Performance v. Bradford, 18 So. 3d 251, 256 (¶ 16) (Miss.
2009); Miss. Comm’n on Judicial Performance v. Cowart, 936 So. 2d 343, 350 (¶ 25)
(Miss. 2006). Judge Curry’s conduct is not an isolated incident and is evidence of a pattern
of misconduct.
5. Willfulness, Deprivation of Assets, or Exploitation of Position
¶15. The Commission submits that there is no allegation that Judge Curry’s conduct was
willful, intended to deprive the public of assets, or exploited her position as a justice court
judge.
6. Mitigating or Aggravating Factors
¶16. No aggravating factors are identified. The mitigating factors are Judge Curry’s
cooperation in the investigation, her admissions of wrongdoing, her changing her handling
of future cases to prevent further violations, her lengthy career in public service, and her lack
of prior complaints against her.
CONCLUSION
¶17. The Court grants the parties’ joint motion for approval of the Commission’s
recommendation and orders Justice Court Judge Mary Curry of the Eastern District of
Claiborne County to be publicly reprimanded. Judge Curry shall appear on the first day of
the next term of the Circuit Court of Claiborne County in which a jury venire is present, after
the mandate in the instant case has issued, to be reprimanded by the presiding judge.
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¶18. JUDGE MARY CURRY, JUSTICE COURT JUDGE OF THE EASTERN
DISTRICT OF CLAIBORNE COUNTY, SHALL BE PUBLICLY REPRIMANDED
IN OPEN COURT BY THE PRESIDING JUDGE OF THE CLAIBORNE COUNTY
CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THE COURT
IN WHICH A JURY VENIRE IS PRESENT AFTER THE ISSUANCE OF THE
COURT’S MANDATE, WITH JUDGE MARY CURRY IN ATTENDANCE.
WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, MAXWELL,
BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.
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