Oral arg. – Miss.S.Ct. – Dec. 8, 2015

At 1:30, the Court will hear the case of the Mississippi Judicial Performance Commission v. Judge David Shoemake.

This involves the same conservatorship for which former Chancellor Joe Dale Walker was suspended and then pleaded guilty in federal court for tampering with a witness.

Chancellor  Walker signed an order appointing  Marilyn Denise Newsome as the conservator of the estate of her daughter Victoria Denise Newsome.    The ward later received a settlement in a medical negligence claim. Walker ordered that a house be constructed for the use of the ward and that a minimum of four bids should be obtained by the attorney for the conservator, Keely  McNulty.   The lowest bid submitted was from C.T. Construction, a company owned by Walker’s nephew Chad Teater.  In July  2011, Walker entered an order transferring the ccuse for limited purpose of having Chancellor Shoemake  approve the bid.  “Upon approval and acceptance, the cause is to be transferred back to Honorable Joe Dale Walker, Post 2.”  The day before that order was entered,  McNulty sent Shoemake a seventeen page fax, including a petition, proposed order and five bids. The bid from C.T. Construction included with that fax was in the amount of $296,575.14. The following day, Shoemake  signed an order authorizing the Conservator to accept the lowest bid case back to Walker.  Although that order recites that copies of the five bids received were attached to the order as exhibits, no bids were attached to the order on file in the clerk’s office. At the time that order was filed no petition requesting that relief was on file, and the Conservator neither gave  McNulty permission nor had knowledge of that request for relief.  Nine months later, McNulty filed two Petitions for Approval of Contractor, both of which requested approval of the C.T. Construction bid of $273,075.14 and both of which had five bids attached.  Both copies of the C.T. Construction bid were for $296,575. Neither petition was sworn to and neither was signed by the Conservator. After Shoemake had transferred the matter back to Walker,  Shoemake signed an  order submitted by McNulty authorizing and ordering the approval of C.T. Construction’s “attached” Construction Management Agreement, including a $30,000.00 fee, and approval of contractors’ and subcontractors’ invoices in accordance with an “attached” itemized proposal, and also authorizing the Conservator to sign that Construction Management Agreement.  Nothing is attached to that order as filed with the clerk’s office.  No petition requesting that relief was ever filed, and the Conservator neither gave her permission nor had knowledge of McNulty’s request for relief.  In August 2011, after the case was transferred  back to Walker, Shoemake  signed an order authorizing the law firm that had represented Newsome to transfer $258,395.14 from their escrow account to the conservatorship account for the construction of the home.

In January  2012, Shoemake signed an order reimbursing C.T. Construction $23,000 for materials allegedly stolen from the construction site.

Shoemake denied signing any of the orders. After SHoemake was told that a handwriting analysis determined that they were Shoemake’s signatures, Shoemake admitted to signing them.

The Commission recommends that Judge Shoemake  be removed from office,  fined $2,500, and assessed the costs of the proceedings in the sum of $8,882.67.

A group of attorneys who practice in Judge Shoemake’s district have filed an amicus brief in support of Judge Shoemake.

Commission’s brief

Judge Shoemake’s brief

Amicus brief by various attorneys in support of Judge Shoemake

Commission’s response to amicus brief

Watch the argument here.

Large audience today including Ms. Newsome.  Several minutes in, Justice Waller ordered a man holding a howling baby removed.  Gotta wonder about people who bring babies to courtrooms.

Justice Randolph is asking most of the questions.  Justice Dickinson is perplexed that the Commission was concerned that no petition was filed to support the payment of $23,000 to reimburse the contractor when the real issue was that there was no evidence whatsoever to support the payment.  He notes that if this were a lawyer, he might well be disbarred.  The Commission did not cite this as a reason for removal although it is pretty egregious.

Judge Shoemake insists that there were petitions to support every order.  Justice Coleman says this is important because the Commission’s recommendation is based in large part on their argument that Judge Shoemake misled the Commission  and Judge Shoemake told the Commission he would never have signed an order without a petition having been filed.

Justice Kitchens makes a good point.  If, as Judge Shoemake contends, he did not know that contractor was Walker’s nephew, why did he think Judge Walker was getting Judge Shoemake to sign the orders.   His lawyer argues that  Judge Shoemake had been a judge for six months and was doing what the senior judge wanted him to do.

Judge Shoemake’s lawyer was pressed several times about whether things he was arguing about were in the record and he responded that they were in his record excerpts (which totally ducked the question and none of the Justices caught him on it).  The Commission’s lawyer just pointed out that there were documents in Judge Shoemake’s record excerpts that AREN’T in the record.  Which just seems to me another attempt by Judge Shoemake to mislead.

 

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