IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-JP-01537-SCT MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

v. JUDGE JESSE BURTON

DATE OF JUDGMENT: 10/23/2018 TRIAL JUDGE: HON. KENT McDANIEL COURT FROM W HICH APPEALED: MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE ATTORNEYS FOR APPELLANT: DARLENE D. BALLARD RACHEL W ILSON MICHEL MEAGAN COURTNEY BRITTAIN ATTORNEY FOR APPELLEE: RICHARD B. LEW IS NATURE OF THE CASE: CIVIL - JUDICIAL PERFORMANCE DISPOSITION: PUBLIC REPRIMAND AND FINE OF $500 - 04/25/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.
MAX WELL, JUSTICE, FOR THE COURT: ¶1. O n J u l y 1 7 , 2017, Jesse Burton—a justice court j udge f o r the Southern D i s t r i c t o f Coahom a County

—f iled an af f i davit claim ing h is f

orm e r g irlf

r iend had s t o l e n mo n ey and personal property f

rom him

. Base d o n t h i s a f f idavit, another justice court judge issued an
arrest warrant f

or Judge Burton’s girlf

riend, Regina Burt. But bef ore the warrant w as served, Judge Burton changed h i s m ind and instructed the clerk’s of f ice to rescind the warrant that the other judge had issued. As directed, the deputy clerk replaced Judge Burton’s girlf riend’snam e on the warrant with Jane Doe and instructed the sherif f’s of f ice not to execute it. ¶2. Acting on a com

plaint f rom Burt, on August 29, 2018, the Mississippi Comm ission

on Judicial P erf

orm ance f iled a f orm al com

plaint against Judge Burton, who cooperated and entered an agreed stipulation of f a cts with the Comm ission. The parties’ agreem e nt included the C om m issio n ’ s recom m ended sanction of a public reprim and a nd $500 f ine. Af ter review, this Court agrees with the Com m ission’s f indings and recom m ended sanction.
B ackground Facts and Procedural History ¶3. As part of the s tipulation of agreed f acts, which included a proposed sanction, Judge
Burton a greed he c om m itted m i s c onduct when he ordered a deputy clerk to rescind his f orm er girlf

riend’s arrest warrant. He agreed he violated Canons 1, 2A, 2B, 3B(1), 3B(2), and 3E(1) of the Code of Judicial Conduct of Mississippi and Mississippi Code Section 97- 11-1. This was Judge Burton’s f irst disciplinary m a tter bef ore the Comm ission i n his twenty

seven-y ear career as a justice court judge. And the Comm ission recom m ended he be publicly reprim anded and f

ined $500. Af

ter a hearing, the Comm ission a dopted the agreed stipulation of f acts and recom m ended s anction in a f ive-to-one v ote. The Comm ission and Judge Burton f iled a joint m otion, asking this Court accept the Comm ission’s f indings and recom m ended sanctions. Discussion ¶4. Mississippi Constitution article 6, section 177A, vests this Court with the power to,

on the r ecom m endation of the C om m ission on Judicial Perf orm ance, “rem ove f

rom of f ice, suspend, f

ine or publicly c ensure or reprim and any justice o r judge of t h i s s t ate f or . . .”

2willf

ul m isconduct in of

f ice or conduct prejudicial to the adm inistration o f justice that brings the judicial of

f ice into disr e p u t e . M iss. Const. art. 6, § 177A; see also Miss. C om m ’n on Judicial Perform ance v. V ess , 227 So. 3d 952, 956 (Miss

. 2 017). As the ultim ate decision-m aker in judicial p erf o r mance cases, we conduct an independent review of the record. M

iss. Com m ’n on J

udici a l P e r f o rm ance v. Thom

pson , 80 So. 3 d 86, 88 (Miss. 2012). W hile we caref

ully consider the Com m ission’s f indings and recom m e n dations, we

are not bound by them and m ay im pose lesser or m ore s evere s anctions. Miss. Com m ’n on Judicial Perform ance v. Osborne , 16 So. 3d 16, 19 ( M i s s . 2009). This i s true even when the Com m ission and judge enter into a joint recom m endation. Miss. Com m ’ n on Judicial
P e r f o rm a nce v. S

anford , 941 So. 2d 2 09, 217-18 (Miss. 2006). In short, our t ask i s t o determ ine if the judge com m itted m isconduct and, if so, to decide on an appropriate sanction.
I. Misconduct ¶5. Judge B urton acknowledged and agreed that rescinding an arrest w arrant, signed by

a nother judge in a m atter in which he was a p arty , prejudiced the adm inistratio n o f j u s t i c e and b rought the judicial of f i ce into d isreput e. And he acknowledged and agreed that his actions violated Canons 1 , 2A, 2B, 3B(1), 3B(2), a n d 3E(1) of the Code of Judicial Conduct of Mississippi and Mississippi Code Section 97-11-1. 1

1 C an o n 1 o f th e C o d e o f Ju d icial C o n d u ct p ro v id es, in relev an t p art, th at “[ a] j u d g e sh o u ld p articip a te i n e s t a

bl i s h in g , m ain tain in g , an d en f o rcin g h ig h s tan d ard s o f c o n d u ct, an d sh all p erso n ally o b serv e th o se stan d ard s so th at th e in teg rity a n d in d ep e n d e n c e o f th e j u d i ciary w i ll b e p reserv ed .” C a n o n 2 A o f th e C o d e o f Ju d icial C o n d u ct p ro v id es th at “[ a] j u d g e sh all r esp ect an d co m p ly w ith th e l aw an d sh all act at all tim es in a m an n er th at p ro m o tes p u b lic co n f id en ce in th e in teg r ity

an d im p artiality o f th e j u d iciary .”

3¶6. This Co u r t h a s f o u n d willf

ul m isconduct when a judge i nterf ered i n m atters bef

ore another judge. See Thom pson , 80 So. 3d at 92. W illf u l m isconduct m ay also exist when a judge has a clear conf

lict of interest, but still r em ains involved i n the case. See Miss. Com m ’ n on Judicial Perform ance v. Bowen , 123 So. 3d 3 81, 384-85 (Miss. 2 013); see also Miss. Com m ’n on Judicial P erform ance v. Hartzog , 32 So. 3d 1188, 1193-94 ( Miss. 2010). ¶7. Judge B urton i nterf ered with a n arrest warrant that another j udge had issued. Judge
B u r t on was also a party in that m atter. Both h e a n d the C om m ission agreed his willf ul

m isconduct prej u d i c e d t he adm inistration o f justice a n d brought the judicial o f f ice into disrepute. W e f

i nd Judge Burton com m itted willf u l m isconduct.

C a n o n 2 B o f th e C o d e o f Ju d icial C o n d u c t p ro v id es, in relev an t p a rt, th at “[ j ] u d g es sh all n o t allo w th eir f

am ily , so c ial, o r o th e r relatio n sh ip s t o in f lu en c e t h e j u d g e s ’ j u d icial co n d u ct o r j u d g m en t.” C a n o n 3 B (1 ) o f th e C o d e o f Ju d i cial C o n d u c t p ro v i d e s th at “[ a] j u d g e s h all h ear an d d ecid e all assig n ed m atters w ith in th e j u d g e’s j u r i s d ictio n ex cep t th o se in w h ich d isq u alif icatio n is req u ired .” C a n o n 3 B (2 ) o f th e C o d e o f Ju d i c i a l C o n d u ct p ro v id e s , i n relev an t p art, th at “[ a] j u d g e sh all b e f

aith f u l to th e law an d m ain t ain p ro f essio n al co m

p eten ce in it.” C a n o n 3 E (1 ) o f th e C o d e o f Ju d icial Conduct p ro v i d es, in relev an t p a rt, th at “[ j ] u d g es sh o u ld d i sq u alif

y th em selv es in p ro ceed in g s in w h ich th eir im p artiality m ig h t b e q u estio n ed . . . w h ere . . . th e j u d g e . . . is a p arty to th e p ro ceed in g . . . .”
M ississip p i C o d e S ectio n 9 7 -1 1 -1 states th at: If an y clerk o f an y co u rt, o r p u b lic o f f i cer o r an y o th er p erso n , sh all w ittin g ly m ak e an y f

alse en try , o r erase an y w o rk o r letter, o r ch an g e a n y r e c o rd b elo n g in g to an y co u r

t o r p u b lic o f

f i ce, w h eth er in h is k eep in g o r n o t, h e sh all, o n co n v ictio n th ereo f

, b e im p ri s o n ed in th e p en iten t iary f o r a t erm n o t ex ceed in g ten y ears, an d b e liab le to th e actio n o f th e p arty ag g riev ed

. M iss. C o d e A n n . § 9 7 -1 1 -1 (R ev . 2 0 1 4 ). 4II. Sanctions

¶8. This Court considers the f ollowing si x f

a c t o r s w h e n d e c i d i n g a n a p p ropriate, proportionate sanction: (1) the length and character of the judge’s public s ervice; (2) whether there is any prior casel a w on p oint; (3) the m agnitude o f the of f e nse and the harm suf f ered; (4) whether the conduct was willf ul, intended to deprive the public of assets, or if it e xploited the judge’s position; (5) whether the c onduct was willf ul, intended t o deprive the public o f assets, or if it e xploited the judge’s position; and (6) the presence o r absence of m i tigating or aggravating f actors. V ess , 227 So. 3d at 9 56-57 (quoting Miss. Com m ’n on Judicial Perform ance v. Thom pson , 169 So. 3d 857, 869 (Miss. 2015)).

1. Public Service ¶9. Judge B urton has served as a justice court judge f or C o a h o ma County f

or the past twenty

- seven y ears. This is h is f irst disciplinary m a t ter in his alm ost three decades in of f ice. 2. Prior Caselaw ¶10. T h e C o mmi s s i o n a n d J u d g e B u r t o n point t o the s im ilar f acts and sanctions in Mississippi Com m ission on J u d i c i a l P e r form ance v. T

hom pson , 972 So. 2d 582, 584 (Miss. 2008), overruled on other g rounds by Mississippi C

om m ission o n Judicial Perform ance v. Boone , 60 S o. 3d 172 (Miss. 2 0 11). I n that c a se, t w o s i sters got into a f ight at their grandm other’s f

uneral. One of

them , Deborah Moody , f iled charges against the other. Id.
W h ile i n the justice court clerk’s of f ice, M oody spoke with Judge Thom pson. He initially advised h e r that a n other judge should handle her case. Id. But while Moody sought to ini t i a t e h e r case w ith a dif f e rent justice court judge—Judge Shef f ield—Judge Thom

pson intervened and tried t o discuss the warrant with Judge Shef f i eld bef ore i t was i ssued. Id.

5J u d g e Shef f ield declined to discuss the m atter with Judge Thom pson and said he intend e d

to m ove f o rward and issue the warrant. Id. ¶11. Af terwards, J u dge Thom

pson instructed a deputy

clerk not to i ssue the warrant. Id.

at 584-85. The aggrieved Moody soon learned what Judge Thom pson had d one and reported these actions t o Judge S hef f ield. Id. Judge Shef

f ield ordered the clerk’s of f ice t o issue the

warrant. He a lso gave Moody the num ber f o r t h e M i ssissippi Comm ission on Judicial Perf orm ance. Id. ¶12. An investigation into Judge Thom pson’s alleged m isconduct was initiated. And the Com m i ssion and Judge Thom pson ent ered an a greed statem ent of f acts and proposed

recom m e n d a t i o n , w h ich they subm itted to this Court. Id. at 585. T he Comm ission

recom m ended Judge Thom pson be publicly reprim anded and f ined $100. Id. Af

ter review, this C ourt agreed with the Com m ission’s r ecom m e ndations and ordered J u dge Thom pson to be publicly

reprim anded and f

ined $100. Id. ¶13. Thom

pson i s som ewhat sim ilar t o t h i s c a se. Both Thom pson and this m atter deal with a j ustice court judge’s interf ering with i s s u i n g w a rrants. Although the warrant in Thom pson was issued and resulted in Mood y ’ s s i ster’s arrest, here, Judge Burton’s

m isconduct resulted i n a warrant n ot being issued. Instead, he m eddled in a case involving his own interests and gave an order he should not have given. However, these cases are close enough in context to say the Com m ission’s recom m ended sanction of a public reprim and and a $500 f ine—an increased f

i ne f rom that in Thom

pson

— is supported. 3. Magnitude of the Offense and Harm Suffered

6¶14. Judge Burton’s situation is unusual. He i s both the c om plainant who f

i led an af f idavit supporting an arrest w arrant and the judge whose interf erence kept the warrant f

rom being executed. Still, as this Court has p ointed out m any tim es, the justice courts are the public’s

m ain—if not only

—contact with the judicial sy s t e m and if justice court judges d o not act prof essionally , the public w ill not understand or respect the leg a l p r o cess. See Miss. Com m ’ n on Judicial Perform ance v. Bustin , 71 So. 3d 598, 604-05 (Miss. 2011). ¶15. W h en legal disputes arise, the public m ust have con f

idence they will b e decided by

an im partial jurist. By acting in a n of f icial capacity in a case in which he was a p arty and had

a c o n f licting interest, Judge Burton acted im p roperly

. Such conduct erodes the pub l i c perception of the judiciary

. J udge Burton could have sim ply withdrawn his com

plaint, rather than using his judicial position to snuf f out the a r

rest warrant. And i n addition to the judicial

canons, Judge Burton a greed he violated Mississippi Code Section 97-11-1, which prohibits f alsif y ing or erasing public records.
4. Pattern of Misconduct ¶16. Judge Burton has no p rior disciplinary history bef o r e t h e C o mmi s s i o n. And the Com m i ssion em

phasizes this w as an isolated incident in J udge B u rton’s twenty -seven-y ear service as a justice court judge.

5. Extent of W

il l f u l M isconduct, D eprivation of Public Assets, or Exploitation of Position ¶17. This Court m e asures the appropriate sanction b y e x am ining the extent to which the j u d g e ’ s m isconduct was w illf ul. W e also consider how the judge exploited his o r h e r position to satisf

y personal desires or whether the m i sconduct was i nte n d e d t o d e prive the

7public of assets. See Miss. Com m ’n on Judicial Perform ance v. Skinner , 119 S o. 3d 294,

306-07 (Miss. 2 0 13). W hen considering the e xtent of Judge Burton’s m isconduct, this Court

m ust decide if he “‘acted in bad f aith, good f

aith, intentionally , k

nowingly , or n egligently .’” Thom pson , 169 So. 3d at 872 (quoting Miss. Com m ’n o n J udicial Perform ance v. Harris , 131 So. 3 d 1137, 1146 (Miss. 2 013)). Judge Burton did not deprive the public of any assets. But, as the Com m ission points out, he willf ully used his pos ition f

or p ersonal reasons. See V e ss , 227 So. 3d at 957. As the Comm i ssion put it, rather than “f o llow[ ] the procedure that all other a f

f i a n t s a r e f

o rced to f

ollow when they no longer want to prosecute their crim inal m atters

. . . ,” Judge Burton, in his c apacity as a judge, ordered the clerk’s of f ice to rescind Burt’s arrest warrant. Again, had Judge B urton acted in h is capacity a s c om plainant and withdrawn h is af

f idavit, this m atter would not be bef o re us. But he did not. Instead, he exploited his of

f ice f or personal reasons in a case in which he was a party

. 6. Mitigating or Aggravating Factors ¶18. T h e record shows n o aggravating f actors. And w hen a j udge has recogniz e d h i s o r her errors, this Court considers that recognition a m i tigating circum stance. See V ess , 227 So. 3d at 957-58. This Court also considers J u d ge Burton’s f u ll cooperation with the Com m i ssion, length o f s ervice, absence o f p r i o r m isconduct, a nd a dm ission of his

m isconduct as m itigating f actors. Conclusion ¶19. Jud g e B u r t o n v iolated Canons 1, 2A, 2 B, 3 B(1), 3 B(2), and 3E(1) of the Code of Judicial Conduct of M ississippi and Mississippi Code Sect i o n 9 7-11-1. His conduct was

8w i l l f

u l and prejudicial to the adm inistration of justice and brought the judicial of f ice into disrepute. But given this was Judge Burton’s f irst disciplinary

m atter in his twenty -seveny ear service and given his f ull adm ission and cooperation with the Comm ission, this Court
agrees with the Com m i ssion’s recom m endation to publicly reprim and J udge Burton and to f ine him $500. ¶20. J U S T I C E C O U R T J U D G E J E S S E B U R T O N S H A L L B E P U B L I C L Y REPRIMANDED IN OPEN COURT BY T HE PRESIDING JUDGE ON THE FIRST DAY OF THE NEX T TERM OF THE C IRCUIT COURT O F COAHOMA COUNTY IN WHICH A JURY VENIRE IS PRESENT, WITH J U D GE BURTON PRESENT, FOLLOWING THE ISSUANCE OF THE M A NDATE OF THIS COURT. JUSTICE COURT JUDGE JESSE BURTON SHALL BE FINED $500. RANDOLPH, C.J., K ITCHENS AND KING, P.JJ., COLEMAN, BE A M , CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

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