AMICUS CURIAE BRIEF OF CERTAIN ATTORNEYS PRACTICING IN THE THIRTEENTH CHANCERY DISTRICT OF MISSISSIPPI

Transcription

1 E-Filed Document Sep :16: JP SCT Pages: 10 IN THE SUPREME OF THE STATE OF MISSISSIPPI NO JP SCT MISSISSIPPI COMM. ON JUDICIAL PERFORMANCE v. JUDGE DAVID SHOEMAKE AMICUS CURIAE BRIEF OF CERTAIN ATTORNEYS PRACTICING IN THE THIRTEENTH CHANCERY DISTRICT OF MISSISSIPPI

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal: Darlene Ballard, Mississippi Commission on Judicial Performance Bonnie Menapace, Mississippi Commission on Judicial Performance Meagan C. Brittan, Mississippi Commission on Judicial Performance Judge Lee J. Howard, Commission Chairman Roy Campbell, Post Office Box 1789, Jackson, Mississippi Andrew J. Kilpatrick, Jr., Post Office Box 901, Grenada, Mississippi, an attorney for Judge David Shoemake William H. Jones, Petal, Mississippi, an attorney for Judge David Shoemake Judge David Shoemake, Collins, Mississippi, Post Office Box 446, Mendenhall, Mississippi Corey D. Gibson, Post Office Box 2174, Collins, Mississippi Dan A. McIntosh, III, Post Office Box 727, Collins, Mississippi Obey T. Rogers, Post Office Box 700, Collins, Mississippi George Thomas Sullivan, Post Office Box 1000, Collins, Mississippi Keleigh Sullivan, Post Office Box 1000, Collins, Mississippi G. David Garner, Post Office Box 789, Raleigh, Mississippi Eugene C. Tullos, Post Office Box 74, Raleigh, Mississippi John R. Tullos, Post Office Box 74, Raleigh, Mississippi Raymond P. Tullos, Post Office Box 74, Raleigh, Mississippi i

3 Wesla S. Leech, Post Office Box 575, Mendenhall, Mississippi James (Rus) Sykes, III, Post Office Box 446, Mendenhall, Mississippi Malcolm T. Rogers, Post Office Box 688, Monticello, Mississippi Jamie Edwards Hardison, Post Office Box 579, Monticello, Mississippi Mark Tullos, Post Office Box 505, Raleigh, Mississippi th Respectfully submitted, this the 8 day of September, /s/ ii

4 TABLE OF CONTENTS Certificate of Interested Persons... i Table of Contents... iii Judge Shoemake s History of Service... 2 Our Review of Public Documents Concerning Matters Before This Court Involving Judge Shoemake... 3 Conclusion... 4 Certificate of Service... 6 Page iii

5 IN THE SUPREME OF THE STATE OF MISSISSIPPI NO JP SCT MISSISSIPPI COMM. ON JUDICIAL PERFORMANCE v. JUDGE DAVID SHOEMAKE AMICUS CURIAE BRIEF Having been made aware of a recommendation of the Mississippi Commission on Judicial Performance ( Commission ) requesting the removal from office of David Shoemake, Senior Chancery Judge of the Thirteenth Chancery Court District of Mississippi, the attorneys listed below, all members of the Thirteenth Chancery District Bar, have requested and obtained permission to file this amicus curiae brief so that the members of this Honorable Court can be made aware of our concerns about the apparent breaches in the integrity of the Commission s prosecution and adjudication of the claims against Judge Shoemake, and our experiences with Judge Shoemake The attorneys joining herein are as follows: Corey D. Gibson Dan A. McIntosh, III Oby T. Rogers George Thomas Sullivan James (Rus) Sykes, III Keleigh Sullivan 1

6 G. David Garner Eugene C. Tullos John R. Tullos Raymond P. Tullos Wesla Sullivan Leech Malcolm T. Rogers Jamie Edwards Hardison Mark Tullos Judge Shoemake has been a practicing attorney in our district from December, 1973, until he assumed the bench on January 1, Most of us have practiced with and against him and/or also appeared before him during his service as Chancellor. All of us are very familiar with his honorable character, and in particular his devotion to the truth. JUDGE SHOEMAKE S HISTORY OF SERVICE As a practicing attorney and a Chancellor, and as a member of his community, Judge Shoemake s reputation for judicial conduct, for public service, and for truthfulness has been superb. We know of no blemishes upon his character, and there is no doubt that he enjoys the confidence of the vast majority of the citizens of his community. A major purpose of this brief is to advise this Court that the lawyers joining in this brief have total confidence in his veracity and integrity and strongly desire that he continue to serve as Chancellor. 2

7 OUR REVIEW OF PUBLIC DOCUMENTS CONCERNING MATTERS BEFORE THIS COURT INVOLVING JUDGE SHOEMAKE Lawyers joining in this brief have had an opportunity to review the pleadings and briefs before this Court. It is fair to say that we are very disappointed at the lack of due process afforded to Judge Shoemake and by the actions of the Commission s members and staff. A fair review of the documents convince us that counsel for the Commission acted improperly in accusing Judge Shoemake of lying when Commission counsel falsely advised Judge Shoemake prior to his appearance that there was no active complaint pending against him. Furthermore, the request to appear before the Commission s staff actively misled Judge Shoemake into believing that he was to appear for no other reason than to aid the Commission in its investigation of another matter. To have lured Judge Shoemake to the Commission office without informing him that there was a complaint against him before the Commission and an investigation of him underway and to have placed him in a position where he was required to discuss matters without having had an opportunity to obtain counsel, to prepare and not furnishing him needed documents are improper under any circumstances. To couple this lack of notice with having two agents of the Federal Bureau of Investigation present and interrogate him in the Commission facilities without prior notice was, in our opinion, totally improper. It is not the function of the Commission to run sting operations. Had proper notice and disclosure been made, Judge Shoemake would have had an opportunity to obtain counsel, to review this matter, and would have been prepared to give definitive answers to the questions posed to him. Even then, he did the best he could based upon his recollection at the time, and he made clear to the Commission that he could give more accurate answers after an opportunity to review relevant documents. In essence, he was ambushed by the counsel for the 3

8 Commission. The recommendation to this Court is not based on conduct as a judge during the Newsome proceedings but of lying when the Commission counsel was herself untruthful in informing Judge Shoemake of the Commission s intentions, which can be called into question by the active participation and influence of Newsome s private counsel in confidential Commission proceedings. Having reviewed significant portions of the hearing testimony contained in the public documents, those joining in this brief question the objectivity of a Commission member (a very prominent and experienced trial attorney) who exceeded bounds of an objective fact finder by actively prosecuting Judge Shoemake. At some point it is believed that this member of the Commission exceeded the permissible bounds of fact gatherer and entered into the realm of prosecutor. This member, probably the most influential member of the Commission, deprived Judge Shoemake of an unbiased tribunal, and while conducting its de novo review, this Honorable Court should pay special attention to error committed by Commission counsel and the referenced member, and the prejudice suffered by Judge Shoemake, with said prejudice resulting in the tainted recommendation to remove him from the bench. CONCLUSION The attorneys joining in this brief express our appreciation at being permitted to share our analysis and opinion with the Supreme Court. We feel that it is our duty as attorneys, in general, and in particular from the Thirteenth Chancery District to inform the Court that we have serious concerns about the unfairness of the Commission s prosecution and adjudication of its claims against Judge Shoemake, and that as a result of the compromise of the Commission s integrity and unfair treatment of Judge Shoemake, much of the record before the Court has little to do with Judge Shoemake s 4

9 alleged noncompliance with the Judicial Canons, rather, the record, along with the Commission s recommendation, are products of the Commission s abuse of power and desire to win at all costs. This Honorable Court should not allow the Commission s abuse of power to go unchecked. This Honorable Court should alter its de novo review and dismiss the Commission s complaint against Judge Shoemake. th This, the 8 day of September A. D., Respectfully submitted, Corey D. Gibson Dan A. McIntosh Oby T. Rogers George Thomas Sullivan James (Rus) Sykes, III Keleigh Sullivan G. David Garner Eugene C. Tullos John R. Tullos Raymond P. Tullos Wesla Sullivan Leech Malcolm T. Rogers Jamie Edwards Hardison Mark Tullos By: /s/ 5

10 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing Amicus Curiae Brief with the Clerk of the Court using the MEC/ECF system to the following: Darlene Ballard, Esq. Bonnie Menapace, Esq. Meagan C. Brittan, Esq. Mississippi Commission on Judicial Performance 660 North Street, Suite 104 Jackson, Mississippi Andrew J. Kilpatrick, Jr., Esq. William H. Jones, Esq. and have mailed a copy of said Brief of Appellants, postage prepaid, to the following: Honorable Lee J. Howard Commission Chairman Post Office Box 1679 Starkville, Mississippi th This the 8 day of September, Mississippi Bar Number 9332 Post Office Box Elm Street Mendenhall, Mississippi (601) Fax (601) /s/ 6