A Review of the Mississippi Commission on Judicial Performance
Executive Summary
PEER conducted a cycle review of the Mississippi Commission on Judicial Performance, which is a review not based on a complaint or allegation of misconduct. State law authorizes the Commission on Judicial Performance (Commission) to investigate complaints about a judge’s conduct; determine whether a judge has committed misconduct or is disabled; assist judges who have committed minor ethical violations to change their behavior; impose or recommend discipline if appropriate against a judge who violates ethical standards; and, when necessary, secure the removal of a judge from office.
PEER compared the Mississippi Commission on Judicial Performance with similar agencies in comparable southeastern states on the basis of sanction rates and cost per case disposed. Mississippi sanctioned 9.5% of judges against whom complaints were lodged. Sanction rates of comparable states ranged from a low of 2.2% in Tennessee to a high of 13.1% in South Carolina, with Alabama and Missouri at 5.8% and 7.9%, respectively. PEER determined that the Commission’s cost per case averaged $1,067.41 (for 328 cases disposed during calendar year 2000). The Commission’s cost per case is slightly higher than in comparable southeastern states, however, cost computations are largely dependent on the total number of complaints lodged and processed annually.
The review examined the Mississippi Commission on Judicial Performance’s management process for regulating the conduct of members of the judiciary in Mississippi. The processes for complaint intake and assessment offer open access to file a complaint and opportunity for the complaint’s merits to be reviewed. The Commission’s judicial process assures that it uses established, unbiased guidelines. Also, facts requiring action of the Commission are established through procedures for gathering clear and convincing evidence. The Commission has defined guidelines in place for rendering informal commission actions and private admonishments for less serious misconduct violations.
Although it is the responsibility of the Supreme Court to formally sanction judges for misconduct violations, the Commission initially conducts an investigation and hearing to determine whether such allegations of misconduct have merit and provides its recommendations to the higher court for discipline. In cases where complaints become formal proceedings, the Commission conducts a formal hearing process before an impartial decisionmaking body.
Despite the absence of comprehensive policies and procedures, the Commission’s process for collecting and evaluating evidence provides an equitable and unbiased method of regulating judicial conduct. The Commission’s procedure for disqualifying judges from the evaluation committee in appropriate circumstances promotes the unbiased review of case merits.
The majority of the Commission members are active judges who are responsible for hearing and interpreting evidence, determining guilt, and imposing sentences upon guilty defendants. The Commission’s decisionmaking process is based on discovery of clear and convincing evidence that assures that the facts offered as proof are true.
PEER observed minor weaknesses in the Commission’s investigative process concerning the absence of a comprehensive set of formal policies and procedures and methods of recordkeeping. However, the identified weaknesses do not threaten the integrity of decisionmaking or the Commission’s ability to perform its regulatory duties. With the lack of internal policies and procedures, the Commission cannot ensure that documentation gathering, interviews, and investigative reports are conducted consistently. In the area of investigative recordkeeping, the absence of specific guidelines can cause inconsistencies in gathering and reporting sensitive information.
PEER found minor weaknesses in the Commission’s ability to perform its support functions because of the absence of policies and procedures to govern activities within its administrative process. The Commission has not formally adopted a comprehensive policies and procedures manual to use as a guide for conducting administrative operations. The Commission has not adopted policies and procedures to govern data management (recordkeeping), personnel management, and financial management activities.
PEER determined that no internal procedures provide instructions regarding how to input, retrieve, update, or remove information from the case management data system. The commission does not have human resource policies and procedures to address vacation and sick leave policies, grievances/complaint procedures, or performance evaluation polices. Although no in-house guidelines are available regarding the collection of fines and costs, the Commission utilized state laws and state financial policies and procedures. Failure to adhere to contractual requirements led the State Auditor to recommend that the Commission establish policies and procedures to ensure that administrative functions are documented and performed uniformly.
Recommendations
Investigative Policies and Procedures
The Commission should adopt an investigative policies and procedures manual which would establish a uniform method of reporting information obtained from witnesses and informants; it should provide directions as to how to conduct a discreet inquiry/investigation; and it should outline methods used to obtain information, evidence, and court documents.
The Commission should develop a uniform method of documenting interviews of witnesses or potential witnesses. The report should clearly state why certain documentation was obtained and whether it was pertinent to a particular case. Additionally, all investigative reports should be dated and signed or initialed by the author.
In order to account for all documents in a case file, Commission staff should develop and utilize a docket sheet or form to note all pleadings or information obtained during the course of the investigation. This will ensure that all evidence obtained by the investigator, such as witness statements, court documents, and other information, is officially recorded as part of the case file.
Administrative/Financial Policies and Procedures
The Commission should develop a comprehensive policies and procedures manual or employee handbook that addresses agency operations and responsibilities. The manual should address how complaints are filed and coded as well as how sanction payments are processed and handled.
Personnel Administration Policies and Procedures
The comprehensive policies and procedures manual should address the Commission's current procedures regarding sexual harassment, conflict of interest, public and media contact, confidentiality violations, and compliance with the American Disabilities Act.
State Auditor Concerns About Policies and Procedures
In accordance with the State Auditor's findings, the Commission should modify procedures and guidelines to accomplish the following:
The Commission should establish procedures to ensure adherence to terms of contracts for private legal counsel and establish procedures to ensure written contracts are executed and signed by all parties.
The Commission should develop guidelines to ensure that all contracts between state agencies and private legal counsel are approved by the Attorney General's office prior to payment, as stated in MISS. CODE ANN. Section 27-104-105.
Commission Policy Resolutions
The Commission should amend, update, or abolish the Commission's policy resolutions (1-4, since the Commission no longer uses its policy guidelines).