Rickey W. Thompson v. Lee County Democratic Party Executive Committee

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-EC-01526-SCT
RICKEY W. THOMPSON
v.
ATTORNEY GENERAL OF THE STATE OF
MISSISSIPPI, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITIES, LEE COUNTY
DEMOCRATIC PARTY EXECUTIVE
COMMITTEE, AND LEE COUNTY ELECTION
COMMISSION, AND MARCUS CRUMP
DATE OF JUDGMENT: 09/21/2015
TRIAL JUDGE: HON. WILLIAM A. GOWAN, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JIM WAIDE
CARROLL RHODES
WILLIE C. ALLEN
ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL
BY: KRISSY CASEY NOBILE
HAROLD EDWARD PIZZETTA, III
WILLIAM C. MURPHREE
GARY L. CARNATHAN
NATURE OF THE CASE: CIVIL - ELECTION CONTEST
DISPOSITION: AFFIRMED - 05/11/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. Former Justice Court Judge Rickey Thompson challenges the Lee County Democratic
Executive Committee’s decision to withhold Thompson’s name from the general-election
ballot for a new term as a justice court judge, based on the Court’s order removing him from
the office of justice court judge prior to the election. Thompson sought relief from the
Circuit Court of the First Judicial District of Hinds County; however, the circuit court
dismissed Thompson’s case, finding him ineligible for judicial office.
¶2. The primary question presented today is the following: When a justice court judge
is removed from office, what shall be the duration of the prohibition against the removed
person reentering the office in question? The parties offer two alternative answers. The
Attorney General contends that removal from office is permanent, and that, once removed
from office, a justice court judge may not return to it by reelection or otherwise. On the other
hand, Judge Thompson takes the position that removal from office means that the judge in
question must vacate the office but may later return to it. More accurately, that removal from
office cannot disqualify one from holding the office again in the future, because Article 6,
Section 171 of the Mississippi Constitution does not list as a requirement for eligibility to
serve that a candidate has never been removed from office. Persuaded that the phrase
“remove from office” found in Section 177A means a permanent separation between the
individual and the judicial office, we affirm.
¶3. Secondary is Thompson’s claim that the proper procedures for removing him from the
ballot were not followed, as neither the Mississippi Commission on Judicial Performance nor
the Lee County Election Commission had authority to disqualify him. Because we hold that
Thompson’s removal was permanent, we need not address whether the proper procedures for
removing him from the ballot were followed.
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FACTS AND PROCEDURAL HISTORY
¶4. Thompson is no stranger to the Court. While Thompson has served as justice court
judge for District 4 of Lee County, the Court has addressed Thompson’s misconduct on three
separate occasions. First, in 2008, the Court held that Thompson had interjected himself into
a criminal matter by attempting to prevent a warrant from being issued and executed upon
a relative, and we ordered a public reprimand of Thompson for willful misconduct in office.
Miss. Comm’n on Judicial Performance v. Thompson, 972 So. 2d 582, 587, 590 (¶¶ 11, 23)
(Miss. 2008), overruled in part by Miss. Comm’n on Judicial Performance v. Boone, 60
So. 3d 172 (Miss. 2011). Then, in 2011, we held that Thompson “engaged in six counts of
judicial misconduct prejudicial to the administration of justice which brought the judicial
office into disrepute.” Miss. Comm’n on Judicial Performance v. Thompson, 80 So. 3d 86,
95 (¶ 40) (Miss. 2012). The Court ordered another public reprimand of Thompson,
suspended him from office for thirty days, and fined him $2,000. Id.
¶5. Most recently, the Court unanimously ordered Thompson’s removal from office,
explaining that Thompson had: (1) “lent the prestige of his office to assist the private
interests of a friend;” (2) deprived a person “of her right to counsel of her choosing;” (3) kept
“drug court-participants in the drug-court program longer than the statutorily permitted two
years;” (4) “was not faithful to the law,” and did not maintain competence in the law; (5)
failed to “promote public confidence in the integrity of the judiciary;” (6) failed to exercise
diligence and impartiality in the discharge of his administrative duties; (7) accepted
participants “in the Lee County Justice Court Drug Court from other courts that did not have
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drug courts” when explicitly directed not to do so; and (8) deprived “participants in drug
court of their due-process rights” by signing orders of contempt “without the persons being
properly notified of the charge of contempt or a right to a hearing and by conducting
‘hearings’ immediately after ‘staffing meetings’ without adequate time for the persons to
have proper counsel or evidence presented.” Miss. Comm’n on Judicial Performance v.
Thompson, 169 So. 3d 857, 868-9 (¶ 41) (Miss. 2015). Our mandate requiring his removal
from office issued on August 13, 2015.
¶6. Interestingly, nine days prior to the issuance of our mandate, Thompson received fifty-
five percent of the vote in the Lee County Democratic Party Primary for reelection to the
position from which he was removed. Presented with the results from the primary election
and our decision removing Thompson from office, the Lee County Democratic Party sought
guidance from the Attorney General on how to proceed. The Attorney General directed that
the Lee County Democratic Party place another person on the ballot, which it did – candidate
Marcus Crump.
¶7. Initially, Thompson filed a federal lawsuit seeking a temporary restraining order and
preliminary injunction. Thompson v. Attorney Gen. of Miss., 129 F. Supp. 3d 430 (S.D.
Miss. 2015). The federal court held that Thompson had not demonstrated a “substantial
likelihood on the merits of his claim” and denied his preliminary-injunction request. Id. at
431. Via a separate order, the district court dismissed Thompson’s claim without prejudice,
suggesting that he file his suit in state court.
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¶8. Thompson filed a Motion for Temporary Restraining Order and Preliminary
Injunction in the circuit court asking the circuit court to bar “the Democratic Executive
Committee and Lee County Election Commission from printing general election ballots
which [did] not contain . . . Thompson as the Democratic Party’s [sic] for Lee County Justice
Court Judge, District 4.” He argued that Mississippi Code Section 9-19-17 unconstitutionally
created an additional qualification to run for justice court judge, which violated Article 6,
Section 171 of the Mississippi Constitution. He also argued that the Lee County Election
Commission had violated his right to due process by failing to follow the proper statutory
procedure for removing a person’s name from the ballot based on his qualifications.
¶9. Following a hearing, the circuit court found that Article 6, Section 171, of the
Mississippi Constitution “merely sets forth general qualifications that must be met and does
not address removal from office.” Further, Section 9-19-17 “is in compliance with and
follows Miss. Const. art 6 § 177A.” Finally, the circuit court determined that Thompson’s
due process rights of notice and hearing before his removal from the ballot were not violated
by the Court’s removal of Thompson from his position.
¶10. Thompson now appeals the circuit court’s decision, and he raises the following two
issues on appeal, which we recite verbatim:
I. Thompson meets only the requirements for office of justice court judge
specified by the Mississippi Constitution. Therefore, Thompson is
eligible to serve as justice court judge. No statute can vary the
qualification for office set in the state constitution.
II. The procedures provided to remove Thompson from running for office
were not followed. Thus, neither the Mississippi Commission on
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Judicial Performance nor the Lee County Election Commission had the
authority to disqualify Thompson.
STANDARD OF REVIEW
¶11. “This Court applies a de novo standard of review when addressing a statute’s
constitutionality.” Commonwealth Brands, Inc. v. Morgan, 110 So. 3d 752, 758 (¶ 16)
(Miss. 2013) (citing Johnson v. Sysco Food Servs., 86 So. 3d 242, 243 (¶ 3) (Miss. 2012)).
We have explained further that, in reviewing the constitutionality of a statute, we keep in
mind “(1) the strong presumption of constitutionality; (2) the challenging party’s burden to
prove the statute is unconstitutional beyond a reasonable doubt and (3) all doubts are
resolved in favor of a statute’s validity. When interpreting a constitutional provision, we
must enforce its plain language.” Johnson 86 So. 3d at 243–44 (¶ 3). Finally, “[q]uestions
of law, such as statutory interpretation, are subject to a de novo standard of review.” Tellus
Operating Group, LLC v. Texas Petroleum Inv. Co. 105 So. 3d 274, 278 (¶ 9) (Miss. 2012)
(citing Laurel Ford Lincoln-Mercury, Inc. v. Blakeney, 81 So. 3d 1123, 1125 (¶ 5) (Miss.
2012)).
ANALYSIS
¶12. Article 6, Section 177A of the Mississippi Constitution, wherein lie the powers of the
Mississippi Supreme Court to discipline members of the judiciary, provides, in pertinent part,
as follows:
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
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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.
Miss. Const. art. 6, § 177A (1890). We must determine what the Constitution means by
“remove from office.” If, as the Attorney General contends, removal from office means
permanent removal from the office, such that one may not return to it in the future, then there
is no conflict between Mississippi Code Section 9-19-17 and the Constitution for the purpose
of today’s case.
¶13. The parties and the Court have failed to locate any Mississippi case that
authoritatively addresses what Section 177A means by “remove from office,” although, as
discussed below, two superficially address the issue. In other words, we have no definitive
answer as to whether removal from office is a temporary or a permanent separation from the
office itself. However, the available secondary sources and persuasive authorities from other
jurisdictions indicate that to be removed from office is, by definition, to be permanently
separated from the office itself.
Suspension and removal are two different judicial sanctions. Suspension does
not prohibit a judge from seeking reelection, but removal does. Suspension
lasts for a specific term of days, be it 30 days or the remaining days of a
judge’s term; removal is permanent because it entails not only removal from
office but also prohibits the removed judge from again holding judicial office.
48 C.J.S. Judges § 141 (2016).
¶14. In Proctor v. Daniels, 2010 Ark. 206, 392 S.W.3d 360 (2010), the Arkansas Supreme
Court considered a case very much like the one sub judice. There, a former circuit judge who
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had been removed from office filed to run as a write-in candidate for the same office from
which the Arkansas Supreme Court had removed him. Id. at 361. After filing to run, the
former circuit judge, Proctor, filed a pre-election challenge and sought to have Arkansas
Code Section 16-10-410(d) declared unconstitutional. Like Mississippi Code Section 9-19-
13, the Arkansas statute prohibited any judge removed from office from thereafter being
appointed or elected to serve as a judge. Id. For reasons that need not be addressed here, the
Arkansas Supreme Court found the statute to be unconstitutional because the statute
impermissibly added to the constitutional qualifications of a judge. Id. at 363. However, the
Arkansas Supreme Court, relying on the language quoted from Corpus Juris Secundum
above, held that the option of removal from office found in the judicial-performance section
of the Arkansas Constitution necessarily means permanent removal. Id. at 364.
¶15. We find ourselves persuaded by the Arkansas Court’s reasoning as to the meaning of
the pivotal phrase “remove from office.” The office exists independently of the individual
who, for however long, may fill it. In almost every circumstance, the office in question
existed before the person came to hold it, and it continues to exist, held by another, after the
individual leaves it. Thompson argues that the Proctor Court misinterpreted the Arkansas
Constitution because “[t]o remove from office is to remove from the office one currently
holds.” We disagree with Thompson’s necessary implication that the office in question
ceases upon the departure of the individual filling it and becomes a new office upon the
arrival of the subsequent officeholder. When, e.g., a chancery judge enters an order
enjoining certain behavior by a party, the order remains in effect after the individual judge
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leaves office because it is a function not of the individual, but of the office. Cf. Love v.
Barnett, 611 So. 2d 205, 207-208 (Miss. 1992) (discussing the effect of first chancellor’s
oral ruling when chancellor who succeeded him in presiding over the case entered a written
judgment that differed from the first chancellor’s oral ruling).
¶16. Although in Kentucky Judicial Conduct Commission v. Woods, 25 S.W.3d 470, 474
(Ky. 2000), the Court wrote that the question of whether ineligibility to hold office after the
expiration of the term during which a judge is removed was not before it, the Court’s writing
on the difference between removal and suspension supports the result urged by the Attorney
General in today’s case. The Woods Court wrote as follows:
Section 121 of the Constitution of Kentucky gives the Judicial Conduct
Commission the authority to take three different types of actions with regard
to judicial misconduct or unfitness for office. A judge may be retired for
disability, suspended without pay, or removed for good cause. Although the
Constitution does not define removal, the concept is not arcane and is
addressed in the Sixth Edition of Black’s Law Dictionary. Therein, “Removal
from office” is defined as follows:
Deprivation of office by act of competent superior officer acting
within scope of authority. “Suspension” is the temporary forced
removal from the exercise of office; “removal” is the dismissal
from office.
The Fourth Revised Edition of Black’s provides, similarly, that “suspension”
is “[a]n interim stoppage or arrest of official power and pay;—not synonymous
with ‘removal’ which terminates wholly the incumbency of the office or
employment.” These definitions make clear that removal is not merely a
stigma placed upon a judge as Woods maintains, but the complete
disqualification from serving in the office from which the judge was removed.
Woods, 25 S.W.3d at 473. The Court later added, “It would be absurd to hold that the
Commission could suspend without pay for some significant period of time, but that the more
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severe measure of removal for good cause permits immediate resumption of judicial office.”
Id. at 473-74.
¶17. The Proctor and Woods Courts’ interpretation of the dichotomy between removal and
suspension also jibes well with our earlier writings in In re Anderson, 451 So. 2d 232 (Miss.
1984), and In re Maples, 611 So. 2d 211 (Miss. 1992). In Anderson, the Court considered
a complaint against a justice court judge. The Anderson Court rendered its opinion removing
him from office, explaining, “Even though Justice Court Judge William Anderson may not
now be in public office, this opinion and order effectively disqualify him from offering for a
judicial public office again, and the question [of his removal] is not moot.” Anderson, 451
So. 2d at 234 n.2 (emphasis added). The only explanation for the quoted language is that,
in the minds of the eight participating justices, all of whom concurred, the sanction of
removal from office did more than require the offending justice court judge temporarily to
vacate his post. In Maples, the Court accepted an agreed recommendation that the judge in
question would “not serve in a judicial office, file to run for future judicial office, or file a
certificate with the Supreme Court for designation as a senior Judge.” Maples, 611 So. 2d
at 1992. The unanimous Maples Court clearly understood that it had authority under Section
177A to enter the order prohibiting Judge Maples from holding judicial office in the future
and power to enforce its order going forward. It wrote:
Any violation of this Agreed Statement of Facts shall constitute a violation of
the Court’s order and shall result in the Mississippi Supreme Court entering an
Order of Removal from judicial office with all the consequences provided by
Section 177A of the Mississippi Constitution of 1890 and the laws of
Mississippi.
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Id. at 211-212. The above-quoted language evidences a clear expectation that Maples’s
removal from office would be permanent and, should he violate the Court’s order removing
him by attempting to return to office in the future, he again would be removed.
¶18. Thompson cites Gelch v. State Board of Elections, 482 A.2d 1204 (R.I. 1983), in
which the Supreme Court of Rhode Island reached a different conclusion. The case is
inapposite because the pivotal issue here, whether the removal from office of a judge by a
court is permanent, was not discussed or at issue in Gelch. In Gelch, a mayor of Providence,
Rhode Island, resigned after he was convicted of a felony. Id. at 1206. During the time
remaining on the very term from which he had resigned, the former mayor sought reelection
in the special election held to fill the vacancy. Id. An opponent, Gelch, sought to keep the
former mayor’s name off of the ballot. Id. Gelch did not argue that the former mayor’s
resignation resulted in a permanent ban from the office; instead, he argued merely that he
could not be re-elected during the time remaining on the term from which he had resigned.
Id. at 1206-07. Nowhere in its opinion did the Gelch Court have to interpret the effect of
removal from office as a sanction.
¶19. Thompson also cites the 1916 Tennessee Supreme Court case of State v. Crump, 134
Tenn. 121, 183 S.W. 505 (1916), wherein the Tennessee Court held that Tennessee’s then-
existing Ouster Statute operated to remove offending officials from office only for the
remainder of their terms. In Crump, several Memphis officials were removed from office
pursuant to the Ouster Act. Id. at 506. Two of the officials, Crump and Utley, already had
been re-elected to their offices of mayor and vice-mayor prior to the order removing them
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from office. Id. Crump and Utley contended that their new terms were not affected by their
removal from office. Id. In reaching its holding, the Crump court first noted the language
of the statute, which read, “That if the defendant shall be found guilty, judgment of ouster
shall be rendered against him, and he shall be ousted from his office.” Id. at 507. Then in
language that indeed supports Thompson’s argument, the Court continued, “There is no
provision whatever in the act attaching to a judgment of ouster any disqualification on the
part of the ousted official to hold any other office in the state or to hold the same office
thereafter.” Id. The Crump Court reasoned that Crump and Utley, when ousted in 1915,
possessed no interest in their offices for the 1916-1920 terms from whence they could be
ousted in 1915. Id.
¶20. Contrary to Crump, in In re Johnson, 689 So. 2d 1313 (La. 1997), the Supreme Court
of Louisiana held that its order removing a judge from office operated to preclude him from
serving both the term during which he was removed and the following term to which he had
in the interim been reelected. The authorities that hold or indicate that removal from office
is permanent present more persuasive views than those cited by Thompson. Of all of the
sanctions allowed by Section 177A, we consider removal from office “the most severe
discipline a judge can receive for misconduct.” Miss. Comm’n on Judicial Performance
v. Osborne, 876 So. 2d 324, 333 (¶ 26) (Miss. 2004). One instinctively thinks of permanent
removal as more severe than a temporary suspension. The structure of Section 177A
supports the conclusion that removal from office is harsher than a suspension. It reads, in
pertinent part, “[T]he Supreme Court may remove from office, suspend, fine or publicly
12
censure or reprimand” offending judges. Miss. Const. art. 6, § 177A. The offenses appear
to be listed in descending order of severity.
¶21. For the foregoing reasons, we hold that the phrase “remove from office” found in
Section 177A of the Mississippi Constitution necessarily means a permanent separation from
office, such that an individual judge removed from office remains ineligible to return to it.
As a necessary extension, there is no removal from office that is not permanent. A removal
from office that is not permanent is a suspension.
¶22. As the removal contemplated by Section 177A is permanent, we will not address
Section 9-19-17 or the argument that it creates an unconstitutional qualification for serving
as a justice court judge. As Section 177A provides for the permanent removal of Thompson
from the office of justice court judge, one cannot claim that the similar effect of the statute
contradicts Mississippi’s Constitution.
CONCLUSION
¶23. Because, under Section 177A, removal from office means a permanent separation
between the individual and the office in question, the Lee County Democratic Party was
correct in nominating another candidate for Thompson’s justice court judge post. The Circuit
Court of Hinds County correctly denied Thompson’s requested relief. We affirm.
¶24. AFFIRMED.
WALLER, C.J., RANDOLPH, P.J., KING, MAXWELL AND BEAM, JJ.,
CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY DICKINSON, P.J. CHAMBERLIN, J., NOT PARTICIPATING.
KITCHENS, JUSTICE, DISSENTING:
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¶25. Because I would hold that Ricky W. Thompson was not prohibited from running for
the next term of office of Justice Court Judge for District 4 in Lee County by virtue of his
having been removed from a previous term of that office by this Court, I respectfully dissent.
¶26. The majority takes the position that “the phrase ‘remove from office’ found in [Article
6,] Section 177A[,] of the Mississippi Constitution necessarily means a permanent separation
from office, such that an individual judge removed from office remains ineligible to return
to it.” Maj. Op. ¶ 21. Article 6, Section 177A, reads, in pertinent part, as follows:
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.
Miss. Const. art. 6, § 177A.
¶27. The majority relies, in part, on Proctor v. Daniels, 392 S.W.3d 360 (Ark. 2010).There,
the Arkansas Supreme Court considered “whether, pursuant to the Arkansas Constitution,
a judge removed from office . . . may thereafter seek judicial office.” Proctor, 392 S.W.3d
at 363. After examining the Arkansas Constitution,1 the Arkansas Supreme Court found that
1
Amendment 66(c) of the Arkansas Constitution states, in pertinent part, that:
If, after notice and hearing, the Commission by majority vote of the
membership determines that grounds exist for the discipline of a judge or
justice, it may reprimand or censure the judge or justice, who may appeal to
the Supreme Court. The Commission may, if it determines that grounds exist,
after notice and hearing, and by majority vote of the membership, recommend
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the phrase “remove from office” contemplated permanency. Id. In doing so, it determined
that:
“Suspension” and “removal” are different sanctions. Suspension does not
prohibit a judge from seeking reelection, but removal does. Suspension lasts
for a specific term or days, be it thirty days or the remaining days of a judge’s
term . . . . Removal is permanent because it entails not only removal from
office, but also a sanction prohibiting the removed judge from again holding
judicial office. This sanction is imposed to protect the integrity of the judiciary
and to respect and maintain the public trust. Because Proctor was removed
from office, he is precluded from seeking election to a judicial office.
Id. at 364 (internal citations omitted).
¶28. The majority relies, also, on Kentucky Judicial Conduct Commission v. Woods, 25
S.W.3d 470 (Ky. 2000). There, a Kentucky district court judge attempted to run in a special
election to fill the unexpired term of the same office from which he recently had been
removed. Id. at 471. The task of the Kentucky Supreme Court was to “determine the
minimum duration pursuant to KY. CONST. § 121 of the removal from judicial office.”2 Id.
The Kentucky Supreme Court considered the Sixth Edition of Black’s Law Dictionary, which
defined “[r]emoval from office” as “[d]eprivation of office by act of competent superior
to the Supreme Court that a judge or justice be suspended, with or without
pay, or be removed, and the Supreme Court, en banc, may take such action.
Ark. Const. amend. LXVI(c).
2
Section 121 of the Kentucky Constitution provides, in pertinent part, that:
Subject to rules of procedure to be established by the Supreme Court, and
after notice and hearing, any justice of the Supreme Court or judge of the
Court of Appeals, Circuit Court or District Court may be retired for disability
or suspended without pay or removed for good cause . . . .
Ky. Const. § 121.
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officer acting within scope of authority.” Id. at 473. The court continued, citing Black’s:
“‘Suspension’ is the temporary forced removal from the exercise of office; ‘removal’ is the
dismissal from office.” Id. at 473. The Kentucky court determined that the “definitions make
clear that removal is not merely a stigma placed upon a judge . . . but the complete
disqualification from serving in the office from which the judge was removed.” Id. The court
held that the judge was “prohibited from seeking or holding any other judicial office during
said term.” Id. at 474 (emphasis added).
¶29. The majority also refers to a Louisiana Supreme Court case, In re Johnson, 689 So.
2d 1313 (La. 1997). On November 25, 1996, the Supreme Court of Louisiana removed Judge
Michael Johnson from office as a district court judge.3 Id. at 1313. The decision removing
Johnson from office took effect when the court denied rehearing on December 13, 1996. Id.But in September of 1996, a few months before the Louisiana Supreme Court’s decision took
effect, Johnson won reelection for a second term to the same district court seat. Id. The court
considered the following issue: “whether [the] court’s judgment of November 25, 1996[,]
removing Judge Michael Johnson from office prevent[ed] him from assuming a new term of
3
The Louisiana Constitution provides, in pertinent part, that:
On recommendation of the judiciary commission, the supreme court may
censure, suspend with or without salary, remove from office, or retire
involuntarily a judge for willful misconduct relating to his official duty,
willful and persistent failure to perform his duty, persistent and public conduct
prejudicial to the administration of justice that brings the judicial office into
disrepute, conduct while in office which would constitute a felony, or
conviction of a felony.
La. Const. Ann. art. V, § 25(C).
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office commencing January 1, 1997.” Id. The Louisiana Supreme Court concluded Johnson
was ineligible for the second term. Id.
¶30. Johnson argued that the November 25, 1996, order removing him from his first term
“did not prevent him from assuming a second term in office.” Id. The Louisiana Supreme
Court disagreed, stating that, because the court previously had concluded that Johnson’s
conduct warranted “the most severe discipline,” the court’s prior order was “at odds with
[Johnson’s] interpretation that he should be removed from office for the approximate one
month period remaining on his first term.” Id. at 1313-14. The Louisiana Supreme Court
ultimately ruled that its order of November 25, 1996, removed Johnson “from office for the
term he was serving at the time the judgment was rendered and any subsequent term to which
he was elected while the case was pending in this court.” Id. at 1314. At the conclusion of
its opinion, the Johnson court adopted a Supreme Court rule that governed the issue of
Johnson’s eligibility for any future elections.4 Id. at n.2.
¶31. While the facts of these out-of-state cases bear some resemblance to the present case,
and the applicable laws of those states are similar to Mississippi’s, they do not compel the
conclusion reached by the majority and, of course, are not binding on this Court. The
Kentucky Supreme Court disqualified a judge from seeking the position from which he was
removed but did so only during the unexpired portion of the judge’s term. Woods, 25 S.W.3d
4Though no specific citation appears in the court’s opinion, Section 26 of Louisiana
Supreme Court Rule 23 provides that “[a]ny former judge who has been removed from
office by the Supreme Court pursuant to La. Const. Art. V, § 25(C) cannot and is prohibited
from qualifying to become a candidate for any judicial office until certified eligible by this
Court.” La. Sup. Ct. R. 23, § 26.
17
at 474 (holding that judge was “prohibited from seeking or holding any other judicial office
during said term”) (emphasis added). And the Louisiana Supreme Court removed a judge,
who had won reelection for a second term to the same district court seat, “from office for the
term he was serving at the time the judgment was rendered and any subsequent term to which
he was elected while the case was pending in this court,” pursuant to a Louisiana Supreme
Court Rule which prohibited the judge’s qualifying for any judicial office “until certified
eligible by this Court.” In re Johnson, 689 So. 2d at 1314; La. Sup. Ct. R. 23, § 26.
¶32. By contrast, in Gelch v. State Board of Elections, 482 A.2d 1204, 1206 (R.I. 1984),
a Rhode Island mayor was convicted of a felony and resigned from office. Thereafter, the
mayor sought to become a candidate “for the special election to fill the unexpired term from
which he resigned.” Id. The Supreme Court of Rhode Island determined that when an office
is forfeited, it is forfeited “for the remainder of the current term.” Id. at 1211. But the Rhode
Island Supreme Court went on to observe:
Generally, “a removal from office bars the removed officer from an election
or appointment to fill the vacancy for the unexpired term, but . . . it does not
disqualify him to take some other office or to be elected or appointed to a new
term of the same office.” Recall Bennett Committee v. Bennett, 196 Or. 299,
326, 249 P.2d 479, 492 (1952). “The remainder of the existing term is,
including its incidents and rights, . . . all the removal can act on or affect.”
Thompson v. Crump, 134 Tenn. 121, 132-33, 183 S.W. 505, 508 (1915).
Id. (emphasis added). Based on this decision, Thompson argues that “[o]ne cannot be
removed from an office (a justice court term in the future) that one has never held.” See also
People ex rel. Bagshaw v. Thompson, 130 P.2d 237, 241 (Cal. App. 1942) (“One term of
an office is separate and distinct from other terms of the same office”); State v. Crump, 134
18
Tenn. 121, 183 S.W. 505, 507 (1916) (“A removal from office extends to the limit of the
current term, but such removal, unless a statute give it greater effect, cannot go beyond the
current term because the office itself is limited by the term. If we go beyond the current term,
then we have to deal with another office.”).
¶33. The majority also relies on two cases from this Court. In In re William Anderson, 451
So. 2d 232, 234 n.2 (Miss. 1984), this Court observed in a footnote that “[e]ven though
Justice Court Judge William Anderson may not now be in public office, this opinion and
order effectively disqualify him from offering for a judicial public office again, and the
question [of William Anderson’s removal from office] is not moot.” The majority states that
“[t]he only explanation for the quoted language is that, in the minds of the eight participating
justices, all of whom concurred, the sanction of removal from office did more than require
the offending justice court judge temporarily to vacate his post.” Maj. Op. ¶ 17. But the
question of ineligibility for judicial office in the future was not before the Court in that case;
rather, William Anderson had argued that the fact that he no longer held office rendered his
removal from office moot. Id. at 234 n.2.
¶34. The majority refers also to In re Maples, 611 So. 2d 211, 211 (Miss. 1992) in which
a circuit judge resigned and agreed “that he will not serve in a judicial office, file to run for
judicial office, or file a certificate with the Supreme Court for designation as a senior Judge.”
¶35. I would hold that removal from judicial office only disqualifies the removed person
from seeking to fill the unexpired term from which he or she was removed. See Gelch, 482
19
A.2d at 1211. This approach is not inconsistent with that of our sister states, Kentucky and
Louisiana.
¶36. Having reasoned that “removal from office” under the Mississippi Constitution
contemplates only the term of office from which the judicial officer was removed, I consider
next Thompson’s argument that Mississippi Code Section 9-19-17 creates an additional
qualification to run for judicial office, namely, that the person offering himself or herself for
election not have been removed from judicial office.
¶37. Section 9-19-17 provides that:
A justice or judge removed by the supreme court or the seven-member tribunal
is ineligible for judicial office, and pending further order of the court, may be
suspended from practicing law in this state.
Miss. Code Ann. § 9-19-17 (Rev. 2014). Article 6, Section 171, of the Mississippi
Constitution provides, in pertinent part, that:
A competent number of justice court judges and constables shall be chosen in
each county in the manner provided by law, but not less than two (2) such
judges in any county, who shall hold their office for the term of four (4) years.
Each justice court judge shall have resided two (2) years in the county next
preceding his selection and shall be [sic] high school graduate or have a
general equivalency diploma unless he shall have served as a justice of the
peace or been elected to the office of justice of the peace prior to January 1,
1976. All persons elected to the office of justice of the peace in November,
1975, shall take office in January, 1976, as justice court judges.
Miss. Const. art. 6, § 171.
¶38. Based on this section of our state Constitution, Thompson argues there are but two
constitutional requirements to become a justice court judge: (1) reside in the county for two
years preceding the election and (2) have a high school diploma or GED. Thompson insists
20
that Code Section 9-19-17 adds another requirement: that the candidate not have been
removed from office. Because a statute cannot alter the Constitution, Thompson argues that
Section 9-19-17 is unconstitutional. See Saxon v. Harvey, 223 So. 2d 620, 624 (Miss. 1969)
(“While the legislature generally has the power to enact any law it sees fit, nevertheless, it
is restricted in its enactment of laws by the provisions of our State Constitution and cannot
by statutory enactment alter or nullify a clear, unambiguous mandate of the Constitution.
Such a statute would be unconstitutional.”).
¶39. The Attorney General, Lee County Election Commission, and Lee County Democratic
Party Executive Committee, on the other hand, argue that this case does not involve Article
6, Section 171, of the Mississippi Constitution; Section 9-19-17, they contend, simply
codifies Article 6, Section 177A, of the Mississippi Constitution. Under the Attorney
General’s interpretation, Section 9-19-17’s “statement that a judge’s removal renders the
judge ‘ineligible’ for future office is nothing more than a restatement that removal by the
Supreme Court for misconduct under Article 6, Section 177A[,] is permanent.” The Attorney
General insists that there is a fundamental difference between the qualifications a candidate
must meet to be elected as justice court judge, which are governed by Article 6, Section 171,
and the sanction of removal, which is governed by Article 6, Section 177A.
¶40. The Attorney General cites this Court’s decision in In re Lloyd W. Anderson, 412 So.
2d 743 (Miss. 1982). In Lloyd W. Anderson, the Mississippi Commission on Judicial
Performance recommended that this Court remove Justice Court Judge Lloyd W. Anderson
from office. Lloyd W. Anderson, 412 So. 2d at 743-44. Ultimately, this Court agreed with
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the Commission and removed Anderson from office. Id. at 748. While analyzing the history
of Constitution Section 177A, we said:
[t]he provisions of Section 177A have been implemented by legislative
enactments providing for a commission on judicial performance, the terms of
office of its members, authority as to procedures before it, and its
administration. Miss. Laws, ch. 511 (1979); Miss. Laws, ch. 385 (1980)
(codified at Mississippi Code Annotated § 9-19-1 et seq. (Supp.1981)).
Id. at 744. And in the next sentence, this Court quoted Section 9-19-17’s language that “[a]
justice or judge removed by the supreme court . . . is ineligible for judicial office.” Id. See
also In Re Stewart, 490 So. 2d 882, 883 (Miss. 1986) (observing that Article 6, Section
177A, is implemented by Mississippi Code Section 9-19-1 et seq. and specifically quoting
Section 9-19-17). Based on this language, the Attorney General argues that Article 6, Section
177A, of the Constitution and Mississippi Code Section 9-19-17 work in harmony, and that
removal under both is permanent.
¶41. In response, Thompson argues that the Attorney General’s argument is flawed because
“Mississippi Constitution Section 9-19-17 is different from those statutes which merely
provide “terms of office of [the Commission’s] members, authority as to procedures before
[the Commission], and [the Commission’s] administration.” Thompson insists instead that
Section 9-19-17 creates an additional qualification for the office of justice court judge.
Further, Thompson asserts that the idea that removal from office is permanent is refuted by
the very enactment of Section 9-19-17, because, if the Constitution already granted this Court
the power to prohibit a removed judge from holding future office, Section 9-19-17 would be
superfluous.
22
¶42. In support of his position, Thompson cites this Court’s decision in Montgomery v.
Lowndes County Democratic Executive Committee, 969 So. 2d 1, 2 (Miss. 2007), in which
Monique Brooks Montgomery sought to qualify as a candidate for justice court judge. The
Lowndes County Democratic Executive Committee refused to qualify Montgomery because,
although she was a resident of the county, Montgomery did not reside in the subdistrict in
which she sought to run. Id. The Lowndes County Democratic Executive Committee based
its disqualification on Mississippi Code Section 23-15-359(8) (Rev. 2001), which provided
that “[t]he appropriate election commission shall determine whether each candidate is a
qualified elector of the . . . county or county district they seek to serve.” Id. The trial court
examined this statute in conjunction with Article 12, Section 250, of the Mississippi
Constitution and determined that the legislature “intended that residency requirements in
county districts apply to candidates for justice court judge.”5 Id. Montgomery appealed,
arguing that she satisfied the only constitutional requirements to run for justice court judge.
Id.
¶43. In the majority opinion, this Court noted that
[t]he Constitution of 1890 creates a series of requirements for those wishing
to qualify as candidates for the office of justice court judge. Along with
5
Article 12, Section 250, of the Mississippi Constitution provides that:
[a]ll qualified electors and no other shall be eligible for office, except as
otherwise provided in this Constitution; provided, however, that as to an
office where no other qualification than that of being a qualified elector is
provided by this Constitution, the Legislature may, by law, fix additional
requirements for such office.
Miss. Const. art 12, § 250.
23
providing a four-year term of office and placing educational requirements on
those persons elected after 1976, the Constitution requires that “[e]ach justice
court judge shall have resided two (2) years in the county next preceding his
selection.”
Id. (citing Miss. Const. art. 6, § 171). The majority recognized that Article 12, Section 250,
of the Constitution allows the legislature to fix additional requirements for offices “where
no other qualification than that of being a qualified elector is provided by [the Mississippi]
Constitution.” Id. at 3. Because Article 6, Section 171, did in fact create additional
qualifications for justice court judges, we concluded that Article 12, Section 250, did not
apply and that, as such, “[a] statute crafted by the Legislature may not provide for changes
in the justice court judge section of the Constitution. Only an amendment may accomplish
the task of altering the Constitution.” Id. at 3 (citing Saxon, 223 So. 2d at 624).
¶44. In Wynn v. State, 7 So. 353, 354 (Miss. 1890), this Court considered whether the
legislature’s decision to create an educational qualification for the office of county
superintendent was permitted by the Constitution. Although this Court determined that such
a qualification was “a just and proper condition of eligibility for office,” it concluded the
legislature’s action violated the Constitution. Id. at 355. In doing so, this Court stated:
It is thus seen that the only safe course is to deny the right of the legislature to
add to any office created by the constitution any qualification for the
incumbent not imposed by the constitution itself. As offices were created by
it, and the subject of qualification dealt with, and special requirements made
for certain offices, and general requirements as to all, it must be assumed that
it prescribes all that was intended, and that none can be added, however
appropriate they may be.
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Id. (emphasis added). Thompson argues that, even though it may be “just and proper that a
judge removed from office should never hold office again,” the legislature still is without
authority to add such qualification to the Constitution.
¶45. Thompson next directs this Court’s attention to its decision in Mississippi
Commission on Judicial Performance v. Darby, 143 So. 3d 564 (Miss. 2014). In Darby, the
Mississippi Commission on Judicial Performance and Judge Darby entered into an “Agreed
Statement of Facts and Proposed Recommendation” which proposed that Darby be “removed
from office, prohibited from holding judicial office in the future, and assessed costs of
$200.” Darby, 143 So. 3d at 565. In considering the recommended sanction, this Court noted
that:
The jointly recommended sanction requires us to recognize the limits of our
constitutionally vested powers in these matters. Included in the recommended
sanctions, agreed to by Judge Darby, is that she be “prohibited from holding
judicial office in the future. Our constitution does not expressly empower this
Court to order such a prohibition.”
Id. at 568 (emphasis added). The Court also inserted a footnote, stating:
We ordered that the parties file supplemental briefs addressing this Court’s
authority to prohibit a judge from holding judicial office in the future. In its
supplemental brief, the Commission acknowledged that this Court lacks the
constitutional authority to impose such a sanction, but requested that we note
that the Legislature has provided that a removed judge is “ineligible for
judicial office.” See Miss. Code Ann. § 9–19–17 (Rev. 2002).
Id. at n.7. Ultimately, this Court removed Judge Darby from office, but it did not explicitly
prohibit Darby from seeking office in the future. Id. at 570.
¶46. Presiding Justice Dickinson authored a special concurrence and observed that “[i]n
explaining why the prohibition [that Judge Darby be precluded from seeking future judicial
25
office] is not included in the sanctions we order today, we pointed out that neither this Court
nor the Commission . . . has authority to impose a sanction that prohibits a person from
seeking and holding judicial office in the future.” Id. at 571. Justice Dickinson also noted
that “including [Section 9-19-17’s] citation [in the footnote] . . . in no way adjudicates the
constitutionality of the statute.”
¶47. In Proctor, 392 S.W.3d at 361-62, which the majority cites to support its argument
that removal from office is permanent, the judge who previously had been removed
challenged, as does Thompson in the present case, the constitutionality of Arkansas Code
Section 16-10-410(d), arguing that the statute created an additional qualification for the
office of circuit judge. That statute provided that “[a]ny judge removed from office [by the
Arkansas Supreme Court] cannot be appointed or elected thereafter to serve as a judge.” Ark.
Code Ann. § 16-10-410(d) (Supp. 2009) (repealed by Acts of 2015, Act 939, § 2, eff. July
22, 2015).
¶48. The Arkansas Secretary of State, the Pulaski County Election Commission, and the
Arkansas Judicial Discipline and Disability Commission argued the restriction did not create
an additional qualification; rather, they argued, it was an “individualized limitation on the
ability to hold office as part of a constitutionally authorized sanction for judicial
misconduct.” Proctor, 392 S.W.3d at 363. The Arkansas Supreme Court was not convinced,
finding that it did not “agree with appellees’ contention that the statute is constitutional
because it merely ‘clarifies’ a qualification already created by amendment 66 of the Arkansas
Constitution.” Id. Ultimately, the Arkansas Supreme Court found the statute unconstitutional
26
because it “encroache[d] on the power reserved to the judiciary to interpret the law” and
created an additional qualification for office. Id.
¶49. So, while the Arkansas Supreme Court determined that removal from office precluded
a judge’s seeking reelection in the future, it nevertheless ruled that the statute declaring
removal to be permanent was unconstitutional because it added to the constitutional
qualifications of a judge. Yet the majority in the present case declines to address Thompson’s
identical argument, finding that those arguments “need not be addressed.” Maj. Op. ¶ 14.
¶50. Section 9-19-17 alters Article 6, Section 171, of the Mississippi Constitution to
require persons running for the office of justice court judge not to have been removed from
judicial office. Consequently, I would hold that Section 9-19-17 is unconstitutional because
the legislature “cannot by statutory enactment alter or nullify a clear, unambiguous mandate
of the Constitution.” Saxon, 223 So. 2d at 624; Montgomery, 969 So. 2d at 3. The Arkansas
Supreme Court’s analysis of the identical issue in Proctor is persuasive and, accordingly,
Section 9-19-17 does more than simply implement the Constitution. It creates an additional
qualification for those who run for justice court judge in Mississippi: that the judge shall not
have been removed from judicial office. The legislature is without authority to add to the
constitutional qualifications. See Wynn, 7 So. at 355.
DICKINSON, P.J., JOINS THIS OPINION.
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