                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1999-CP-01412-SCT
ROBERT F. WHEELER
v.
JEFFERSON B. STEWART
DATE OF JUDGMENT:                                  07/21/1999
TRIAL JUDGE:                                       HON. RICHARD W. McKENZIE
COURT FROM WHICH APPEALED:                         FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            PRO SE
ATTORNEY FOR APPELLEE:                             JERRY A. EVANS
NATURE OF THE CASE:                                CIVIL - PERSONAL INJURY
DISPOSITION:                                       AFFIRMED - 02/22/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                    3/15/2001



     BEFORE BANKS, P.J., SMITH AND COBB, JJ.

     COBB, JUSTICE, FOR THE COURT:


                                    STATEMENT OF THE CASE

¶1. This is an appeal from the judgment of the Forrest County Circuit Court granting a motion for summary
judgment and awarding $1000 in attorney's fees to Hattiesburg municipal judge Jefferson B. Stewart.
Robert F. Wheeler had sued Judge Stewart in his individual capacity, alleging that Judge Stewart had
entered an unlawful order and acted outside the jurisdiction of the Hattiesburg Municipal Court. Appearing
pro se, Wheeler demanded both money damages and that his conviction be expunged from the court
records.

¶2. Judge Stewart defended on the basis of his immunity from lawsuits founded upon his official acts, asking
the court to dismiss Wheeler's complaint. Subsequently, Stewart moved for summary judgment, which the
trial judge granted after oral argument and submission of briefs.

¶3. In considering whether Judge Stewart should be awarded attorney's fees, pursuant to the Litigation
Accountability Act, Miss. Code Ann. §§ 11-55-1 to -15 (Supp. 2000), the trial court noted that Judge
Stewart's attorney wrote to Wheeler, quoted cases from the United States and the Mississippi Supreme
Courts relating to absolute judicial immunity for judicial acts, implored Wheeler to seek legal counsel, and
advised him if the complaint was not dismissed, an award of attorney's fees would be sought. Judge
Stewart's attorney also filed a request for fees, wherein he stated under oath that his efforts preparing an
answer, drafting the motion for summary judgment and brief, and conducting the oral argument had required
17.3 hours, and that a reasonable charge was $100 per hour. The circuit court judge, noting "appropriate
judicial restraint," awarded attorney's fees in the amount of $1000 to Judge Stewart.
¶4. Aggrieved by the judgment of the Forrest County Circuit Court, Wheeler timely appealed to this Court,
raising ten issues which are rephrased and combined as follows:

      I. DOES SECTION 21-23-7 OF THE MISSISSIPPI CODE ANNOTATED OF 1972
      ENABLE A MUNICIPAL JUDGE TO RENDER A BINDING DECISION BASED ON
      THE NOTICE TO APPEAR PROVIDED BY A UNIFORM TRAFFIC TICKET?

      II. DOES THE FAILURE OF A MUNICIPAL COURT TO JUDICIALLY ORDER THE
      DEFENDANT TO APPEAR AND ANSWER THE CHARGE OR TO HAVE THE
      DEFENDANT ARRESTED AND BROUGHT BEFORE THE COURT TO ANSWER THE
      CHARGE VIOLATE THE DEFENDANT'S "DUE PROCESS" RIGHTS?

      III. DOES A MUNICIPAL JUDGE HAVE JURISDICTION OVER THE PERSON OF
      THE DEFENDANT TO HEAR A CRIMINAL CHARGE WHEN THE COURT HAS NOT
      SENT A JUDICIAL WRIT OF ANY KIND ORDERING THE ACCUSED TO APPEAR
      AND ANSWER THE CHARGE, NOR HAS THE DEFENDANT BEEN ARRESTED OR
      BROUGHT BEFORE THE COURT?

      IV. DOES A MUNICIPAL JUDGE HAVE JUDICIAL IMMUNITY IF HE HEARS A
      CHARGE AND ISSUES A JUDGMENT, IN ABSENTIA, AGAINST A DEFENDANT
      OVER WHOM HE HAS NOT OBTAINED IN PERSONAM JURISDICTION BECAUSE
      HE HAS NOT ISSUED, AND THE ABSENT DEFENDANT HAS NOT RECEIVED,
      JUDICIAL NOTICE OF ANY KIND?

      V. DOES A POLICE OFFICER HAVE AUTHORITY TO PROVIDE NOTICE TO
      APPEAR VIA A UNIFORM TRAFFIC TICKET?

      VI. DOES THE LITIGATION ACCOUNTABILITY ACT ENABLE A PARTY TO
      RECOVER ATTORNEY FEES AGAINST A PRO SE LITIGANT OPPOSITE?

Finding no error in the circuit court's decision, we affirm.

                                         STATEMENT OF FACTS

¶5. On February 27, 1998, Wheeler was issued two traffic citations by a Hattiesburg police officer. Both
citations were written on standard Uniform Traffic Ticket forms. One ticket was for running a stop sign, and
the other was for driving with a suspended license. Wheeler has not denied either of the violations. The
officer attested and filed the tickets with the Hattiesburg Municipal Court on the same day they were issued
to Wheeler. The tickets notified Wheeler to appear at the municipal court on a date certain, or to contact
the municipal court clerk on or before that date certain. When he failed to do so, he was tried in absentia,
convicted, and fined $441.

¶6. Both tickets listed Wheeler's address as 216 Zion Rest Road, in Shubuta, Mississippi, an address
where he had not lived for more than a year. The circuit court judge made a finding of fact that Wheeler
failed to disclose that he did not live at the address shown on his driver's license. A "Notice of Fine" was
mailed to Wheeler at the old Shubuta address. Wheeler failed to pay his fine, and a mittimus was issued.
Almost a year later he was picked up by a Lamar County sheriff's deputy pursuant to the warrant for his
arrest.

                                                 ANALYSIS

      I. DOES SECTION 21-23-7 OF THE MISSISSIPPI CODE ANNOTATED OF 1972
      ENABLE A MUNICIPAL JUDGE TO RENDER A BINDING DECISION BASED ON
      THE NOTICE TO APPEAR PROVIDED BY A UNIFORM TRAFFIC TICKET?

      III. DOES A MUNICIPAL JUDGE HAVE JURISDICTION OVER THE PERSON OF
      THE DEFENDANT TO HEAR A CRIMINAL CHARGE WHEN THE COURT HAS NOT
      SENT A JUDICIAL WRIT OF ANY KIND ORDERING THE ACCUSED TO APPEAR
      AND ANSWER THE CHARGE, NOR HAS THE DEFENDANT BEEN ARRESTED OR
      BROUGHT BEFORE THE COURT?

¶7. The duties of a municipal court judge are outlined in Miss. Code Ann. § 21-23-7 (Supp. 2000).
Wheeler argues that Judge Stewart should have followed the procedures set forth in § 21-23-7(9) and that
because he did not, he exceeded the authority of this section, which reads in pertinent part:

      Upon execution of a sworn complaint charging a misdemeanor, the municipal court may, in its
      discretion and in lieu of an arrest warrant, issue a citation requiring the appearance of the defendant to
      answer the charge made against him. On default of the appearance, an arrest warrant may be issued
      for the defendant. The clerk of the court or deputy clerk may issue such citations.

Miss. Code Ann. § 21-23-7(9) (Supp. 2000). Wheeler argues this subsection prescribes the manner in
which a municipal judge must proceed. However, it is clear that the language of this section is permissive
and does not impose a mandatory procedure upon municipal judges.

¶8. The Uniform Traffic Ticket Law, Miss. Code Ann. § 63-9-21 (1996), states what is required to give
adequate notice, as follows:

      Every traffic ticket shall show, among other necessary information, the name of the issuing officer, the
      name of the court in which the cause is to be heard, and the date and time such person is to appear to
      answer the charge. The ticket shall include information which will constitute a complaint charging the
      offense for which the ticket was issued, and when duly sworn to and filed with a court of competent
      jurisdiction, prosecution may proceed thereunder.

Miss. Code Ann. § 63-9-21(3)(c) (1996). A traffic ticket that contains this information constitutes a "sworn
affidavit" as referred to in Section 21-23-7(1) when the officer who issues the ticket has it properly attested
and filed with the proper court. The traffic ticket issued to Wheeler met the requirements of this statute. The
proper procedure for attestation and filing was followed in this case. These issues are without merit.

      II. DOES THE FAILURE OF A MUNICIPAL COURT TO JUDICIALLY ORDER THE
      DEFENDANT TO APPEAR AND ANSWER THE CHARGE OR TO HAVE THE
      DEFENDANT ARRESTED AND BROUGHT BEFORE THE COURT TO ANSWER THE
      CHARGE VIOLATE THE DEFENDANT'S "DUE PROCESS" RIGHTS?

¶9. Under Mississippi law, driving is a privilege and not a fundamental right. Lavinghouse v. Mississippi
Highway Safety Patrol, 620 So.2d 971 (Miss. 1993). This Court applies the rational relation test when
reviewing constitutional issues that do not involve a fundamental right. Vortice v. Fordice, 711 So.2d 894,
895 (Miss. 1998) (citing Wells v. Panola County Bd. of Educ., 645 So.2d 883, 893 (Miss. 1994)).
"This means that the state must show that the [questioned statute] is rationally related to a proper legislative
purpose." Vortice, 711 So.2d at 895-96.

¶10. Statutes related to the enforcement of the rules of the road are unquestionably rationally related to a
proper legislative purpose. The Mississippi Legislature has provided for the use of the Uniform Traffic
Ticket as an expeditious means of enforcing these rules. Properly completed, the Uniform Traffic Ticket
provides sufficient notice to an offender to comply with due process requirements.

¶11. The determination of whether notice is sufficient to satisfy the requirements of due process is a matter
of context. "Due process is flexible and calls for such procedural protections as the particular situation
demands." Gilbert v. Homar, 520 U.S. 924, 931, 117 S.Ct. 1807, 1812,138 L.Ed.2d 120 (1997) (citing
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484(1972). "The notice
must be of such nature as reasonable to convey the required information (citation omitted), and it must
afford a reasonable time for those interested to make their appearance. (citations omitted). But if with due
regard for the practicalities of the case these conditions are reasonably met the constitutional requirements
are satisfied." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652,
657, 94 L.Ed. 865 (1950).

¶12. The notice received by Wheeler was adequate to satisfy due process requirements. The notice of the
date, time and court where Wheeler was to appear was clearly noted on the ticket signed by the issuing
officer. Any reasonable person who failed to appear before a court as directed by a criminal citation should
expect an arrest warrant to be issued. After his failure to appear, but prior to his arrest, Wheeler was given
notice of the imposition of a fine and the opportunity to pay that fine before the mittimus was issued. We
find Wheeler's argument that his due process rights were violated is without merit.

      IV. DOES A MUNICIPAL JUDGE HAVE JUDICIAL IMMUNITY IF HE HEARS A
      CHARGE AND ISSUES A JUDGMENT, IN ABSENTIA, AGAINST A DEFENDANT
      OVER WHOM HE HAS NOT OBTAINED IN PERSONAM JURISDICTION BECAUSE
      HE HAS NOT ISSUED, AND THE ABSENT DEFENDANT HAS NOT RECEIVED,
      JUDICIAL NOTICE OF ANY KIND?

¶13. Wheeler argues his due process rights were violated under both the Mississippi and United States
Constitutions because he was tried in absentia. The municipal court trial, however, was properly conducted
in accordance with Miss. Code Ann. § 99-17-9 (2000), which provides for trial in absentia in cases less
than a felony, in pertinent part, as follows:

      If the defendant in cases less than felony be on recognizance or bail or have been arrested and
      escaped, or have been notified by the proper officer of the pendency of the indictment against him,
      and resisted or fled, or refused to be taken, or be in any way in default for non appearance, the trial
      may progress at the discretion of the court, and judgment final and sentence be awarded as though
      such defendant were personally present in court.

The constitutionality of trial in absentia under this statute was clearly established by this Court in the early
part of this century in Williams v. State, 103 Miss. 147, 60 So. 73 (1912), (constitutional rights of the
defendant were not violated when the trial was completed in his absence, after he had initially appeared for
the trial and did not appear for the conclusion). Judge Stewart's judicial immunity is in no way diminished or
limited by his hearing the charges and issuing a judgment against Wheeler, in absentia, in the present case.

¶14. For more than a century, Mississippi has recognized the doctrine of judicial immunity. See, e.g.,
DeWitt v. Thompson, 192 Miss. 615, 7 So.2d 529 (1942); Bell v. McKinney, 63 Miss.187 (1885). In
Loyacono v. Ellis, 571 So.2d 237, 238 (Miss. 1990), this Court declared that "[p]ublic policy mandates
that a judge should have the power to make decisions without having to worry about being held liable for his
actions . . . ."

¶15. The key factor in determining whether judicial immunity exists is "whether at the time [the judge] took
the challenged action he had jurisdiction over the subject matter before him." Stump v. Sparkman, 435
U.S. 349, 356, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331, 339 (1978). Here it is undisputed that the
Hattiesburg Municipal Court has subject matter jurisdiction over traffic offenses occurring in the City of
Hattiesburg. Judicial immunity clearly exists where, as here, the municipal judge properly exercised subject
matter jurisdiction. We agree with the circuit judge's conclusion of law that "[Judge] Stewart, at all times
complained of by [Wheeler], acted in conformity with the laws of this State and in his capacity as a
Municipal Judge for the City of Hattiesburg; as such he is entitled to judicial immunity." Wheeler's challenge
to Judge Stewart's jurisdiction lacks merit.

      V. DOES A POLICE OFFICER HAVE AUTHORITY TO PROVIDE NOTICE TO
      APPEAR VIA A UNIFORM TRAFFIC TICKET?

¶16. The ticket issued in this case and the method of issuance conformed with the requirements of the
Uniform Traffic Ticket Law, Miss. Code Ann.§ 63-9-21(1996). The statute provides that the traffic ticket
may be "issued by any sheriff, deputy sheriff, constable, county patrol officer, municipal police officer or
State Highway Patrol officer." Id. § 63-9-21(3)(a). The ticket received by Wheeler contained the
information required by the Uniform Traffic Ticket Law as previously noted in the discussion of Issue II.
The requirements of the statute were satisfied; therefore, this issue is without merit.

      VI. DOES THE LITIGATION ACCOUNTABILITY ACT ENABLE A PARTY TO
      RECOVER ATTORNEY FEES AGAINST A PRO SE LITIGANT OPPOSITE?

¶17. Wheeler argues that the Litigation Accountability Act should not apply to pro se litigants. To the
contrary, the Act makes specific reference to its applicability to pro se litigants, stating in pertinent part that:

      No party, except an attorney licensed to practice law in this state, who is appearing without an
      attorney shall be assessed attorney's fees unless the court finds that the party clearly knew or
      reasonably should have known that such party's action, claim or defense or any part of it was without
      any substantial justification.

Miss. Code Ann. § 11-55-5(4) (Supp. 2000). The phrase "without substantial justification" is defined as
any action that is "frivolous, groundless in fact or in law, or vexatious, as determined by the court." Id. § 11-
55-3(a).

¶18. When reviewing a decision regarding the imposition of sanctions pursuant to the Litigation
Accountability Act, this Court is limited to consideration of whether the trial court abused its discretion.
Scruggs v. Saterfiel, 693 So.2d 924, 927 (Miss. 1997); Leaf River Forest Prods., Inc. v. Deakle,
661 So.2d 188, 197 (Miss. 1995). The trial judge in the present case concluded that Judge Stewart had
absolute immunity, stating "[j]udges loose [sic] absolute judicial immunity only with respect to either non-
judicial acts or other actions that are in the "clear absence of all jurisdiction." (citing Stump v. Sparkman,
435 U.S. 349, 98 S. Ct. 1099, 55 L.Ed. 2d 331 (1978)). The trial judge further concluded that:

      This court recognizes that the Plaintiff has appeared pro se; however, he has pursued this matter and
      has filed legal briefs with this Court which evidence some legal knowledge. The Court makes this
      observation because the format of Plaintiff's brief is in proper form; however, the cases therein cited
      have little or no relevance to issues before this Court. The Plaintiff has also appeared before this
      Court and made legal argument in opposition to Defendant's Motion for Summary Judgment.

The trial judge also found that Judge Stewart's attorney wrote Wheeler advising that his cause of action
lacked merit and advising him of the Litigation Accountability Act of 1988. Stewart's attorney requested
that Wheeler seek legal counsel and if Wheeler pursued the complaint, the award of attorney's fees would
be sought. The letter to Wheeler stated that:

      The lack of a factual foundation and your assertions to the contrary notwithstanding, both the
      Mississippi Supreme Court and the United States Supreme Court have stated that judges are
      absolutely immune from individual liability for monetary relief for their "judicial acts" so long as they do
      not act in the "clear absence of all jurisdiction." Public policy mandates that judges be allowed to act
      in a judicial capacity without apprehension of personal consequences. Judges lose absolute judicial
      immunity only with respect to either non-judicial acts or other actions that are in the "clear absence of
      all jurisdiction." I also advise that the Mississippi Rules of Civil Procedure have no application in this
      matter.

      I strongly urge you to seek the advice of legal counsel with regards to the allegations of your
      complaint. I am compelled to advise you that if this complaint is not dismissed and I am required to
      proceed with a defense on behalf of Judge Stewart, at the conclusion of this matter I will seek the
      award of all attorney's fees and costs against you pursuant to the Litigation Accountability Act of
      1988. A copy of that act is enclosed for your review and I direct your attention to Paragraph 4.

(emphasis in original). Wheeler proceeded with the suit in spite of his personal knowledge of the law and the
information provided by Judge Stewart's attorney.

¶19. Although the circuit court judge did not specifically address each factor set forth in Miss. Code Ann.
§11-55-7 (Supp. 2000) (the statute which lists factors to be considered by the trial court when granting an
award of costs and attorney's fees), we find that his opinion (which included findings of fact and conclusions
of law) did include sufficient specific reasons to justify the award.(1) Thus, we find that the award of
attorney's fees to Judge Stewart was not an abuse of discretion by the circuit court.

                                               CONCLUSION

¶20. None of Wheeler's claims of error justifies reversing the circuit court in this case. The circuit court's
grant of summary judgment was proper as Judge Stewart had absolute judicial immunity for his acts as the
Municipal Judge for the City of Hattiesburg. The award of attorney's fees was not an abuse of discretion by
the circuit court.

¶21. Finding no error in the circuit court's decision to grant summary judgment and award attorney's fees to
Stewart, this Court affirms the judgment of the Forrest County Circuit Court.
¶22. AFFIRMED.

     PITTMAN, C.J., BANKS AND McRAE, P.JJ., SMITH, MILLS, WALLER, DIAZ AND
     EASLEY, JJ., CONCUR.

1. This Court encourages the bench and bar to address each of the factors set forth in Section 11-5-7, in
order to provide a record on which this Court can more accurately apply the abuse of discretion standard.
