Mississippi Commission on Judicial Performance v. Shoemake, 191 So. 3d 1211

Background

Chancellor David Shoemake (13th Chancery Court) signed five ex parte orders impacting the conservatorship of Victoria Denise Newsome; some orders lacked sworn petitions and were supported only by Keely McNulty, who served as both conservator’s attorney and guardian ad litem.
The orders approved a construction bid, a construction management agreement, transferred funds for construction, authorized a $23,000 disbursement allegedly for stolen tools, and nunc pro tunc amended a bid amount.
The Mississippi Commission on Judicial Performance filed a Formal Complaint alleging Shoemake improperly signed the orders, contributed to mismanagement of the ward’s estate, and gave deceptive testimony at a show-cause hearing. The Commission recommended removal, a $2,500 fine, and $5,882.67 in costs.
At hearings Shoemake admitted signing the initial August 2, 2011 order but initially denied signing the later orders; later he admitted signing additional orders after documents and emails were discovered. The Commission relied on handwriting analysis and the incomplete case file.
The Supreme Court reviewed the record independently, found clear and convincing evidence that Shoemake improperly signed the ex parte orders (violating multiple Canons and his duty as superior guardian), but did not find clear and convincing evidence that his earlier show-cause testimony was knowingly false or misleading.
Remedy: Court imposed a public reprimand, thirty-day suspension without pay, a $2,500 fine, and assessed $5,882.67 in costs; the Commission’s recommendation of removal was rejected. Two justices dissented in part (arguing for reduced penalties due to procedural defects and for restitution to the estate).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Shoemake improperly signed ex parte orders affecting a ward’s estate	Commission: Shoemake signed five ex parte orders without proper sworn petitions or hearings, violating the Code and his duty as superior guardian	Shoemake: he only signed the first order and signs orders only when supported by petitions; he had limited recollection of later events	Held: Shoemake signed the orders and violated Canons 1, 2A, 2B, 3B(2), 3B(7), 3B(8), 3C(1) and Section 177A (misconduct)
Whether Shoemake knowingly gave false or misleading testimony at the show-cause hearing	Commission: Shoemake adamantly denied signing later orders and thus was deceitful; handwriting analysis showed otherwise	Shoemake: his testimony contained qualifications and he later changed position after documents were found; he lacked access to files at hearing	Held: Commission failed to prove by clear and convincing evidence that Shoemake knowingly testified falsely; no sanction for candor issue
Appropriate sanction for the misconduct	Commission: removal from office, $2,500 fine, costs	Shoemake: contested findings and severity; emphasized lack of prior discipline and mitigating circumstances	Held: Removal disproportionate; imposed public reprimand, 30-day suspension without pay, $2,500 fine, and $5,882.67 costs
Whether restitution to the ward is an appropriate sanction	Commission recommended remedies but not restitution; some justices/counsel urged making ward whole	Shoemake: restitution not ordered and argued sanctions should be limited	Held: Court declined restitution (restitution not a Section 177A sanction); left civil remedies to ward to pursue separately

Key Cases Cited

Mississippi Comm’n on Judicial Performance v. Walker, 172 So.3d 1165 (Miss. 2015) (related Newsome conservatorship proceedings and prior discipline of Judge Walker)
Mississippi Comm’n on Judicial Performance v. Skinner, 119 So.3d 294 (Miss. 2013) (Court’s independent-review role and sanctioning principles)
Mississippi Comm’n on Judicial Performance v. Boone, 60 So.3d 172 (Miss. 2011) (sanctions for ex parte communications; suspension and reprimand imposed)
Mississippi Comm’n on Judicial Performance v. Carver, 107 So.3d 964 (Miss. 2013) (clear-and-convincing standard discussed)
Mississippi Comm’n on Judicial Performance v. Fowlkes, 121 So.3d 904 (Miss. 2013) (willful misconduct may include negligence prejudicial to administration of justice)
Jackson v. Jackson, 732 So.2d 916 (Miss. 1999) (chancellor as ultimate guardian of ward)
In re Branan, 419 So.2d 145 (Miss. 1982) (restitution not among Section 177A sanctions)
Mississippi Comm’n on Judicial Performance v. Gordon, 955 So.2d 300 (Miss. 2007) (sanctions for ex parte communications and ticket-fixing)
Mississippi Comm’n on Judicial Performance v. Dearman, 66 So.3d 112 (Miss. 2011) (reprimand and 30-day suspension for ex parte actions and improper bond/bond reductions)
Mississippi Comm’n on Judicial Performance v. Sanford, 941 So.2d 209 (Miss. 2006) (30-day suspension and reprimand where judge subverted criminal proceedings)