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 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.
¶ 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:
¶ 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 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 case-in-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 the City of Brookhaven, was the only witness to testify in Judge Boone's case-in-chief.
¶ 7. These recommendations are now before this Court.
¶ 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, "`we
¶ 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).
¶ 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 respondent-judge 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.
¶ 12. We set out the facts as revealed in the record as the need arises in
¶ 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.
¶ 14. Canon 1 states:
¶ 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).
¶ 16. Canon 2A states:
¶ 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.
¶ 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).
¶ 19. Canon 2B states:
¶ 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 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.
¶ 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 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:
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:
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
¶ 24. Canon 3B(2) states:
¶ 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).
¶ 26. Canon 3B(4) states:
¶ 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)).
¶ 28. Canon 4A states:
¶ 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 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.
¶ 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 Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (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:
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 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.
¶ 34. 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
¶ 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.
¶ 36. Judge Boone has been a justice court judge for three years. The record reveals no other public service on the part of Judge Boone.
¶ 37. 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 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.
¶ 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."
¶ 39. 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.
¶ 40. 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:
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.
¶ 41. 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.
¶ 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
¶ 44.
WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.
(Emphasis added.)