E-Filed Document Mar 6 2017 11:04:43 2016-JP-01685-SCT Pages: 22

IN THE SUPREME COURT OF MISSISSIPPI

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

v.

GAY POLK-PAYTON JUSTICE COURT JUDGE

PETITIONER

NO. 2016-JP-1685-SCT

RESPONDENT

BRIEF ON BEHALF OF THE MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

REPRESENTING THE COMMISSION:

Darlene D. Ballard, Esq. Mississippi Bar No. 1726 ballard@judicialperformance.ms.gov Rachel W. Michel, Esq. Mississippi Bar No. 100043 michel@judicialperformance.ms.gov Meagan C. Brittain, Esq. Mississippi Bar No. 104021 brittain@judicialperformance.ms.gov

Mississippi Commission on Judicial Performance 660 North Street, Suite 104 Jackson, Mississippi 39202

Telephone: (601) 359-1273 Facsimile: (601) 354-6277

TABLE OF CONTENTS

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-

Other Authorities ............................................................ -iii-

Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Facts ..................................................... 2

Summaty of the Argument. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT I RESPONDENT'S CONDUCT CONSTITUTED WILLFUL MISCONDUCT IN OFFICE AND CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE PURSUANT TO SECTION 177 A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED ......................................................... 4

ARGUMENT II RESPONDENT SHOULD BE PUBLICLY REPRIMANDED BY THE SUPREME COURT OF MISSISSIPPI. ............................................... 12

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

-1-

TABLE OF AUTHORITIES

I. CASES

Inquiiy Co11cemi11g A Judge, RE: Judith W. Hawkins, 151 So. 3d 1200 (Fla. 2014) ............................. 15

In Re Anderson, 451 So. 2d 232 (Miss. 1984), ....................................... 5

I11 Re Bell, 962 So. 2d 537 (Miss. 2007), ........................................... 5

I11 Re Quick, 553 So. 2d 522 (Miss. 1989),. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Miss. Com111'11 011 Judicial Pe1forma11ce v. Bowen, 123 So. 3d 381 (Miss. 2013), .......... 5

Miss. Comm'n 011 Judicial Pe1forma11ce v. Boykin, 763 So. 2d 872 (Miss. 2000), ......... .13

Miss. Co111111'11 011 JudicialPe1forma11ce v. Brown, 918 So. 2d 1247 (Miss. 2005), ........ .15

Miss. Comm'n 011 Judicial Pe1for111a11ce v. Clinkscales, 192 So. 3d 997 (Miss. 2016) ....... 17

Miss. Comm '11 011 Judicial Pe1forma11ce v. Darby, 143 So. 3d 564 (Miss. 2014), .......... 17

Miss. Comm'n 011 Judicial Pe1forma11ce v. Fowlkes, 121 So. 3d 904 (Miss. 2013), ... 5, 14, 15

Miss. Com111'11 011 Judicial Pe1forma11ce v. Gibson, 883 So. 2d 115 (Miss. 2004), ........ 2,5

Miss. Comm '11 011 Judicial Pe1forma11ce v. Harris, 131 So. 3d 1137 (Miss. 2013), ..... 4, 5, 13

Miss. Comm '11 OJI Judicial Pe1forma11ce v. Hartzog, 32 So. 3d 1188 (Miss. 2010), ......... 5

Miss. Comm '11 011 Judicial Pe1forma11ce v. Osbome, 977 So. 2d 314 (Miss. 2008), ......... 13

Miss. Comm '11 011 Judicial Pe1for111a11ce v. Sanford, 941 So. 2d 209 (Miss. 2006) .......... 5

Miss. Comm'JI OJI Judical Pe1for111a11ce v. Ski1111er, 119 So. 3d 294 (Miss. 2013), ........ 2,13

Miss. Comm '11 011 Judicial Pe1forma11ce v. Thompson, 972 So. 2d 582 (Miss. 2008), ....... 15

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II. OTHER AUTHORITIES

Code of Judicial Conduct

Canon 1 ................................................................ 6

Canon2 ................................................................ 7

Canon 3 ................................................................ 8

Canon4 ................................................................ 8

Idaho Code of Judicial Conduct

Rule3.1 .............................................................. .14

West Virginia Code of Judicial Conduct

Rule 3.1 ............................................................... 13

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BEFORE THE SUPREME COURT OF THE STATE OF MISSISSIPPI

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

v.

GAY POLK-PAYTON JUSTICE COURT JUDGE

PETITIONER

NO. 2016 - JP - 1685 - SCT

RESPONDENT

BRIEF ON BEHALF OF THE MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

The Mississippi Commission on Judicial Perfo1mance ("Commission") herewith files this

brief with the Supreme Court of Mississippi, in accordance with Rule 1 OD of the Rules of the

Mississippi Commission on Judicial Perfonnance. This brief is submitted on behalf of the

Mississippi Commission on Judicial Perfo1mance relating to the conduct of Gay Polk-Payton, Justice

Couti Judge, District 3, Foll'est County, State of Mississippi, hereinafterrefell'ed to as ("Judge Polk-

Payton").

STATEMENT OF THE ISSUES

I. Respondent's conduct constituted willful misconduct in office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute pursuant to Section 177 A of the Mississippi Constitution of 1890, as amended.

II. Respondent should be publicly reprimanded by the Supreme Couti of Mississippi, pursuant to Section 177 A of the Mississippi Constitution of 1890, as amended.

STATEMENT OF THE CASE

On June 13, 2014, at its regularly scheduled meeting, the Commission found probable cause

to file a Formal Complaint against Respondent in Inquity Concerning a Judge No. 2014-081. (CP.

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2). I

On August 4, 2014, the Commission filed a Formal Complaint charging Respondent with

judicial misconduct violating the Code of Judicial Conduct of Mississippi Judges and that

Respondent's conduct violates Section 177A of the Mississippi Constitution of 1890. (CP. 3).

On September 4, 2014, Respondent filed her Answer to Formal Complaint. (CP. 12).

The Respondent and the Commission entered into an Agreement on August 11, 2016, and

on October 7, 2016, the Commission voted to accept and approve the Agreement. (CP. 98; 103).

Subsequently, on November 30, 2016, the "Commission Findings of Fact and Recommendation"

were filed with the Clerk of this Court along with the Clerk's Papers.

STATEMENT OF THE FACTS

Based upon the pleadings and evidence contained in the Clerk's papers, and after considering

the factors delineated in Miss. Comm '11 011 Judicial Pe1forma11ce v. Gibson, 883 So. 2d 1155, 1158

(Miss. 2004) as modified by Miss. Comm '11 011 Judicial Pe1for111a11ce v. Skinner, 119 So. 3d 294

(Miss. 2013), the Commission found the following by clear and convincing evidence, to wit:

Respondent is now and was at all times mentioned in the Formal Complaint, a Justice CoUti

Judge, District 3, Fo!l'est County, Mississippi.

While serving as a Justice CoUti Judge, Respondent has maintained a social media presence,

both personally and professionally. The Agreement of the patties, filed as part of the Clerk's papers,

contains an exhaustive summary of Respondent's social media presence and for brevity will not be

recited herein. The crux of the behavior on which the Formal Complaint was filed is promotion of

personal business ventures and behavior which is inappropriate for a member of the judiciary.

1 Citations to the Clerk's Papers will be designated as (CP. ).

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Specifically, Respondent promoted her services as a motivational speaker, a musical perfmmer, and

an author while capitalizing on her position as a judge, and failed to maintain appropriate

professionalism as a judge in her posts.

Respondent maintained four Facebook pages, a Youtube account, a Twitter account, and an

Instagram account. Respondent's username on Instagram and Twitter was "JudgeCutie". ( CP. 98-

99). While posting on these numerous sites, Respondent posed half-robed in promotional materials,

published posts about sitting on the bench with unclean hair after going to the gym, and posted a

photograph wearing her robe which she titled #myuniform, to cite a few examples. (CP. 106).

Respondent has also writteninflammatmy and controversial political posts. OnFebrnmy 26,

2014, Respondent posted "I became a judge so that I could do my part restore (sic) some integrity

to the criminal justice system. I work hard so that by ALWAYS following the law ... whether I

agree with the law or not. We will never have a fair system of justice until private citizens stand up

and honor their duty by serving as jurors for their fellow citizens AND following the law once they

are sworn in as part of a petitjury. In Florida, the guilty go free but in Mississippi, those that are not

guilty are convicted. Jurors and judges are the gatekeepers to the Constitution. If you can't trust us

to follow the law, there can be no justice and where there is no justice, there will be no peace.

#wholeftthegateopen" (CP. I 06). Such posts are inappropriate for a member of the judiciaty.

SUMMARY OF THE ARGUMENT

Respondent agrees that her actions have violated the Code of Judicial Conduct thereby

constituting a violation of Section 177 A of the Mississippi Constitution of 1890, as amended.

Respondent's actions clearly constitute willful misconduct in office and conduct prejudicial to the

administration of justice which brings the judicial office into disrepute as defined by the Mississippi

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Supreme Comi. Miss. Comm 'll Oil Judicial Pe1forma11ce v. Harris, 131 So. 3d 1137, 1142 (Miss.

2013) (quoting In Re Quick, 553 So. 2d 522, 524-25 (Miss. 1989)).

As such, Respondent should be publicly reprimanded by the Supreme Court of Mississippi.

ARGUMENT

I. RESPONDENT'S CONDUCT CONSTITUTED WILLFUL MISCONDUCT IN OFFICE AND CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE WHICH BRINGS THE JUDICIAL OFFICE INTO DISREPUTE PURSUANT TO SECTION 177 A OF THE MISSISSIPPI CONSTITUTION OF 1890, AS AMENDED.

This Court must decide whether Respondent's conduct constitutes willful misconduct in

office and conduct prejudicial to the administration of justice which brings the judicial office into

disrepute pursuant to Section 177 A of the Mississippi Constitution, as amended. Ifit detennines that

Respondent's conduct constituted willful misconduct in office, then the Comt must determine the

appropriate sanction. The Mississippi Supreme Couti has consistently held that "willful misconduct"

in office is:

the improper or wrong use of power of his office by a judge acting intentionally or with gross unconcern for his conduct and generally in bad faith. It involves more than an error of judgment or a [mere] act of diligence. Necessarily, the term would encompass conduct involving moral turpitude, dishonesty, orc01rnption, and also any knowing misuse of the office, whatever the motive. However, these elements are not necessmy to a finding of bad faith. A specific intent to use the powers of judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constituted bad faith ....

Willful misconduct in office of necessity is conduct prejudicial to the administration of justice which brings the judicial office into disrepute. However, a judge may also, till'ough negligence or ignorance not amounting to bad faith, behave in a manner prejudicial to the administration of justice so as to bring the judicial office into disrepute.

Miss. Comm'n Oil Judicial Pe1forma11ce v. Harris, 131 So. 3d 1137, 1142 (Miss. 2013) (quoting

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In Re Quick, 553 So. 2d 522, 524-25 (Miss. 1989)); Miss. Comm '11 011 Judicial Pe1fon11a11ce v.

Bowe11, 123 So. 3d 381 at 384 (Miss. 2013); Miss. Comm '11 011 Judicial Pe1forma11ce v. Sa11ford,

941 So. 2d 209, 212-13 (Miss. 2006) (quoting Gibso11, 883 So. 2d at 1157). "[A]ctual willfulness

is not always required, as a judge's 'negligence or ignorance not amounting to bad faith' can have

the same effect of being prejudicial to the administration of justice and bringing the judicial office

into disrepute." Miss. Comm'11 011 JudicialPe1forma11ce v. Fowlkes, 121 So. 3d 904 at 907 (Miss.

2013) ( quoting Miss. Comm '11 011 Judicial Pe1forma11ce v. Hartzog, 32 So. 3d 1188, 1193 (Miss.

2010) ( quoting In re A11derso11, 451 So. 2d 232, 234 (Miss. 1984)). '" [M]isconduct does not have

to be embedded in any form ofbad behavior' - ignorance and incompetence can amount to conduct

that violates Section 177 A of the Mississippi Constitution." Harris, 131 So. 3d at 1142 ( quoting

Quick, 553 So. 2d at 527). Violations of Canons of the Code of Judicial Conduct can amount "to

a violation of Section 177 A of the Mississippi Constitution, where [the judge's] actions [ constitute]

willful misconduct in office and conduct prejudicial to the administration of justice that brings the

judicial office into disrepute." Fowlkes, 121 So. 3d at 907.

"According to its Preamble, the Mississippi Code of Judicial Conduct, ... establishes

'standards of ethical conduct of judges."' I11 Re Bell, 962 So. 2d 537, 542 (Miss. 2007) ( citations

omitted). The Preamble states, in pertinent part:

The text of the Canons and Sections is intended to govern conduct of judges and to be binding upon them. It is not intended, however, that evety transgression will result in disciplinaty action. Whether disciplinaty action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.

The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct

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of judges. They should also be governed in their judicial and personal conduct by general ethical standards. The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.

In determining appropriate discipline, the Commission considered the far reach of

Respondent's social media presence. Respondent has accounts on Facebook, Twitter, Ins ta gram, and

Youtube. (CP. 105). Additionally, Respondent maintained four (4) Facebook pages: a Facebook

page for her career as a singer, a private personal Facebook Page, a Facebook Page for her book

"This Has Been a Public Service Announcement," and a Facebook page for her law firm. Id.

Respondent's social media presence was the catalyst which inspired her to write her book, "This Has

Been a Public Service Announcement." Id. Respondent's book is a compilation of her posts from

her numerous accounts. Id.

Judicial Canon Violations

The Fotmal Complaint asserted that by engaging in the above stated conduct, Respondent

violated Canons I, 2A, 2B, 3A, 4A, 4B and 4D(I) of the Code of Judicial Conduct of Mississippi.

Those Canons state, in petiinent part:

CANON 1 A Judge Shall Uphold the Integrity and Independence of the Judiciary

An independent and honorable judiciaty is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judicimy will be preserved. The provisions of this Code should be construed and applied to futiher that objective.

Commentmy Deference to the judgments and rulings of comis depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depends in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law, including

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the provisions of this Code. Public confidence in the impartiality of the judicimy is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injmy to the system of government under law.

CANON 2 A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All Activities

A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Commenta,y Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrntiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinmy citizen and should do so freely and willingly.

The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations oflaw, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether, based on the conduct, the judge's impartiality might be questioned by a reasonable person knowing all the circumstances.

B. Judges shall not allow their family, social or other relationships to influence the judges' judicial conduct or judgment. Judges shall not lend the prestige of their office to advance the private interests of the judges or others; nor shall judges convey or permit others to convey the impression that they are in a special position to influence the judges. Judges shall not testify voluntarily as character witnesses.

Commenta,y Maintaining the prestige of judicial office is essential to a system of government in which the judicia1y functions independently of the executive and legislative branches. Respect for the judicial office facilitates the orderely conduct of legitimate judicial functions. Judges should distinguish between proper and improper use of the prestige of office in all of their activities. For example, it would be improper for judges to allude to thefrjudgeships to gain a personal advantage such as deferential treatment when stopped by a police officer for a traffic offense. Similarly, judicial letterhead must not be used for conducting a judge's personal business.

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CANON 3 A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently.

A. Judicial Duties in General. The judicial duties of judges take precedence over all their other activities. The judge's judicial duties include all the duties of their office prescribed by law.

CANON 4 A Judge shall so conduct the Judge's Extra-Judicial Activities as to Minimize the Risk of Conflict with Judicial Obligations

A. Extra Judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;

(2) demean the judicial office; or

(3) interfere with the proper perfonnance of judicial duties.

Commentary Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Expressions of bias or prejudice by a judge, even outside the judge's judicial activities, may cast reasonable doubt on the judge's capacity to act impartially as a judge. Expressions which may do so include jokes or other remarks demeaning individuals on the basis of their race, gender, religion, national origin, disability, age, sexual orientation or socioeconomic status. See section 2C and accompanying Commentmy.

B. Avocational Activities. A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code.

Commentary As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciaty and the integrity of the legal profession and may express opposition to the persecution of lawyers and judges in other countries because of their professional activities

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In this and other Sections of Canon 4, the phrase "subject to the requirements of this Code" is used, notably in connection with a judge's governmental, civic or charitable activities. This phrase is included to remind judges that the use of permissive language in various Sections of the Code does not relieve a judge fonn the other requirements of the code that apply to specific conduct.

D. Financial Activities.

(1) Judges should refrain from financial and business dealing that tend to reflect adversely on their impmiiality, interfere with the proper performance of their judicial duties, exploit their judicial positions, or involve them in frequent transactions with lawyers or persons likely to come before the comi on which the judges se1ve.

Application o(Misconduct to Canons

By engaging in the following conduct, Respondent violated Canons I, 2A, 2B, 3A, 4A, 4B,

and 4D(l).

Canon 1

Respondent violated Canon 1 by inundating social media with posts and pictures that were

unprofessional and inappropriate for a judge. Canon I requires that a judge establish and maintain

a high standard of conduct. Respondent's actions on social media do not meet that standard. For

example, on Instagram, Respondent posted a picture taken in her chambers wearing her judicial robe

and captioned the picture, "Ooooh chile, my head is still wet from the gym. I look a mess!!!

#judgeNOTsuchacutiepresiding." (CP. 100). Respondent also posted on Instagram a picture taken

on the steps of a courthouse wearing her judicial robe with the caption, "Follow me on Twitter and

Instagram @judgecutie ... but only if you have nothing better to do. : -)." (CP. 106). These are just

a sampling of the plethora of posts Respondent made on social media.

Canon2

Respondent violated Canon 2A by posting numerous times in her judicial robe, and while

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using the username "JudgeCutie". (CP. 105). Canon 2A requires that a judge act at all times in a

manner that promotes public confidence in the integrity of the judiciary. Respondent was sworn in

as a justice comi judge in 2012, the same year she began using the Twitter username "JudgeCutie".

(CP. 105). Respondent also used "JudgeCutie" as her username on Instagram. Jd. "JudgeCutie" not

only highlighted Respondent's judicial role to the public, but the unprofessional name diminishes

the public's confidence in thejudicimy. As Respondent's username brought attention to her judicial

role, so did her posts on social media. Respondent's social media pages reference her status as a

justice comi judge, contain pictures in her judicial robe, and depict her on the bench. (CP. 99).

Respondent posted a picture of herself on Instagram, in her judicial robe on the bench with gavel

in hand with the caption #myunifmm. (CP. 106). There is no way a follower could miss that

Respondent is a judge.

Respondent violated Canon2B by using her social media pages as promotional tools for her

extra-judicial activities. Canon 2B dictates that a judge shall not lend the prestige of her office to

advance her private interests. Respondent promoted her law firm, her book, her musical career, and

her motivational speaking on social media. (CP. 105). In all, Respondent has four Facebook pages,

an Instagram account, a Twitter account, and a Y outube account. Id. Each of Respondent's social

media pages references her status as a justice court judge and contain pictures of Respondent in her

judicial robe. (CP. 105). Again, there is no mistaking that Respondent is a judge. Respondent utilized

her vast social media presence as advertisement for her private interests. One example of this would

be on her law firm's Facebook page there was a recurring post that states, "Having your criminal

record expunged can change the way potential employers view you. Call us at (601) 366-5361 and

schedule a consultation to find out if you are eligible for expunction of your criminal record." (CP.

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106). All of the pages were linked together. Another example would be Respondent's law firm page

would suggest that people follow her at "JudgeCutie" on Instagram, or her musician's Facebook page

having a link of her singing on Youtube. (CP. 105). Respondent's judicial role, and the prestige of

her office, were inextricably tied to the promotion of her private interests.

Canon3

Canon 3A requires that a judge's judicial duties take precedence over all other activities.

Respondent is an attorney, a singer, a motivational speaker, an author, and a judge. (CP. 105). On

social media, Respondent posts about all of these activities. Respondent, through her social media

usage, has promulgated an image that her judicial role is merely one of many roles she plays.

Canon4

Canon 4A requires that a judge's extra-judicial activities not cast reasonable doubt on the

judge's capacity to act impartially, demean the office, or interfere with the judge's judicial duties.

Respondent violated Canon 4A on Februaty 26, 2014, in her post on her law firm Facebook page.

Respondent wrote, "I became a judge so that I could do my part restore (sic) some integrity to the

criminal justice system. I work hard so that by ALWAYS following the law ... whether I agree with

the law or not. We will never have a fair system of justice until private citizens stand up and honor

their duty by serving as jurors for their fellow citizens AND following the law once they are sworn

in as pati of a petit jmy. In Florida, the guilty go free but in Mississippi, those that are not guilty are

convicted. Jurors and judges are the gatekeepers to the Constitution. If you can't ttust us to follow

the law, there can be no justice and where there is no justice, there will be no peace.

#wholeftthegateopen" (CP. 106). In this post, Respondent is alluding to the death of seventeen (17)

year old Trayvon Martin who was killed onFebrnaty26, 2012. Respondent further indicates that she

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believes the Florida judicial system failed. As a result, Respondent's comment impugns the integrity

of the Mississippi judiciaty by extension. Respondent's comments about the judicial system

likewise casts doubt over her ability to act impartially.

Canon 4B allows a judge to speak, write, lecture, teach and participate in extra-judicial

activities subject to the requirements of the Code of Judicial Conduct. While Canon 4B is

permissive, it cautions judges that their activities must meet all of the standards set forth in the Code

of Judicial Conduct. Respondent wrote and published a book entitled, "This Has Been A Public

Service Announcement," which is a compilation of her social media posts. (CP. 107). In the book,

Respondent references her judicial position or "JudgeCutie" on the following pages: 7, 9. 19. 22-23,

29-30, 37, 45-46, 51, 53, 65, 73, 81, 87, 98, 115, 139, 142, and 144. Id. Respondent's use of her

judicial role, and lending the prestige of her office to her book is contradict01y to the Code of

Judicial Conduct and violates Canon 4B.

Canon 4D(l) states a judge should refrain from financial dealings that exploit her judicial

position. Respondent's continuous promotion of her law finn, her book, and her singing career

capitalized on her judicial position, in violation of Canon 4D(l ).

II. RESPONDENT SHOULD BE PUBLICLY REPRIMANDED BY THE SUPREME COURT OF MISSISSIPPI

In dete1mining the appropriate sanctions, the Mississippi Supreme Court has held:

The sanctions in judicial-misconduct cases should be prop01tionate to the judge's offense. To detetmine whether the recommended sanctions are prop01tionate to the offense, this Comt follows a six-factor test, which includes: "(1) the length and character of judge's public service; (2) whether there is any prior case law on point; (3) the magnitude of the offense and the hmm suffered; ( 4) whether the misconduct is an isolated incident or evidences a pattern of conduct;" (5) whether the conduct was willful, intended to deprive the public of assets, or if it exploited the judge's

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position; and "(6) the presence or absence of mitigating or aggravating factors."

Harris, 131 So. 3d at 1144 ( citing Miss. Comm '11 011 Judicial Pe1for111a11ce v. Boykin, 763 So.

2d 872, 876 (Miss. 2000); Skinner, 119 So.3d at 300, 307).

(1) The length and character of the judge's public service.

Respondent has served as a justice court judge in Forrest County, Mississippi, for

approximately five (5) years, from 2012 to present. (CP. 105). Respondent has no prior history

before the Commission.

(2) Whether there is any prior case law on point.

A Judge shall avoid impropriety and the appearance ofimproprietv in all activities

Mississippi has no case law directly on point regarding the judiciary's use of social media

and the Commission prays the Court's rnling in this case will provide guidance. In Miss. Comm '11

011 Judicial Pe1for111a11ce v. Osborne, 977 So. 2d 314 (Miss. 2008), the Supreme Comi found a

judge has the responsibility, that is both expected and imposed on the judge, to observe "high

standards of conduct in his professional and personal life that most ordina1y citizens are not required

to meet," and accept "restrictions on his conduct that ordinary citizens might view as burdensome."

Id. at 322.

Looking to other jurisdictions for additional guidance, the Commission found that the

Supreme Court of West Virginia has amended its West Virginia Code of Judicial Conduct to restrict

a judge's social media presence, and create a higher standard of conduct for judges. Comment 6 to

Rule 3 .1 provides, "The same Rules of the Code of Judicial Conduct that govern a judicial officers' s

ability to socialize and communicate in person, on paper, or over the telephone also apply to the

internet and social networking sites like Facebook."

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Additionally, the Supreme Couit of Idaho has also amended its Idaho Code of Judicial

Conduct to create a higher standard of conduct for judges on social media. Comment 5 to Rule 3 .1

provides, "While judges are not prohibited from participating in online social networks, such as

Facebook, Instagram, Snapchat, and the like, they should exercise restraint and caution in doing so.

A judge should not identify himself as such, either by words or images, when engaging in

commentaiy or interaction that is not keeping with the limitations of this code."

Respondent joined social media in 2009 when she joined Facebook, she and opened accounts

on Instagram, Twitter, and Youtube in 2011. (CP. 98-99). In 2011, Respondent was known as

"legal_ diva" on both Instagram and Twitter. (CP. 99). After being elected as a justice court judge

in 2012, Respondent changed her name on Instagram and Twitter to "JudgeCutie". Id. Not only did

Respondent maintain an Instagram, Twitter, and Y outube account, but she also maintained four

separate Facebook accounts Id. Moreover, all of Respondent's social media pages at the time the

Fo1mal Complaint was filed, with her personal Facebook page as an exception, were public and

viewable by anyone with a computer or smaitphone. (CP. 105). All of Respondent's social media

pages identify her as a justice court judge and contain pictures of Respondent in her judicial robe.

Id. Therefore, each and every post made, each and eve1y opinion posted, and each and eve1y

advertisement made was done with the added authority of her position as a judge.

Lending prestige o(o[fice to advance private interest

"This Couit has reviewed numerous cases in which judges lent the prestige of the judicial

office to advance the private interests of others." Miss. Comm'n 011 Judicial Performance v.

Fowlkes, 121 So. 3d 904,909 (Miss. 2013). There are numerous cases in which judges have used

the prestige of their office to benefit the private interest of others. In Miss Comm '11 011 Judicial

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Pe1forma11ce v. Thompson, 972 So. 2d 852 (Miss. 2008), Judge Thompson inte1jected himselfinto

a case from which he was recused by attempting to talk the assigned judge out of issuing an arrest

warrant for an acquaintance. Moreover, after the wmrnnt was signed, Thompson asked the deputy

clerk not to issue the warrant. Miss Comm '11 011 Judi cal Pe1forma11ce v. Fowlkes, 121 So. 3d 904,

910 (Miss. 2013)(quotingMiss. Comm'n 011 Judicial Pe1forma11ce v. Thompson, 972 So. 2d 582,

587 (Miss. 2008). In Miss. Comm'n 011 Judicial Pe1forma11ce v. Brown, 918 So. 2d 1247 (Miss.

2005), Judge Brown attempted to exert his influence over law enforcement and officers of the

judicial system to have his son's criminal charges dismissed. Id. at 1254. The Comt used the analysis

of Thompson and Brown, and applied their analyses to the Judge Fowlkes case. Fowlkes used his

position to advance his own private interests. The Court found misconduct, when Judge Fowlkes,

"failed to remove himself from the adversarial matter" where he was the landlord of one of the

parties, and had a vested interest in his tenant remaining out of jail, using his office to advance his

private interests and those of his tenant. Fowlke~~ 121 So. 3d at 907.

An analogous case to this matter can be found in Florida, in Inquiry Concerning c, Judge,

No.11-550. RE: Judith W. Hawkins, 151 So. 3d 1200 (Fla. 2014). "Judge Hawkins was charged

with use of judicial office to promote a private business, Gaza Road Ministries, in which Judge

Hawkins was a speaker and a writer, having written and published a book titled 'Old Stories, New

Insights' based on biblical studies." Id. at 1203. The Supreme Comt of Florida found that, "Judge

Hawkins linked the sale of her business products to her judicial office by her appearance on her

website in judicial robes, which lent the prestige of the judicial office to advance private interests."

Id. at 1213.

Respondent's use of the name "JudgeCutie", posts about her position as a judge, and posts

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picturing herselfin a judicial robe, constituted use of her judicial office to promote her own private

interests.

(3) The magnitude of the offense and the harm suffered.

By their ve1y nature, social media web sites are far-reaching. The magnitude of those that

viewed or were shown Respondent's web sites, posts, etc. is impossible to discern, but no doubt the

Court is familiar with how wide-spread social media use is. Similarly, the reputation of the judiciary

as a whole suffered harm, but that hmm is not of such a nature that it is easily qualifiable or

quantifiable. That being said, this Court need only to look to local and national news to discern the

harmful effect(s) social media posts by those in positions of influence are and can be.

( 4) Whether the misconduct is an isolated incident or evidences a pattern of conduct.

Although Respondent's actions at the time of the initial complaint were ubiquitous,

during the course of the Commission's case, Respondent ultimately took action to reverse course.

(5) Whether the conduct was willful, intended to deprive the public of assets, or if it

exploited the judge's position.

As above, Respondent's initial actions had the effect of exploiting her position; however,

once notified of the concerns, Respondent made eve1y effort to heed the Commission's

recommendations.

(6) The presence or absence of mitigating or aggrnvating factors.

There are no aggravating factors, and in fairness to both the Commission and the Respondent,

the lack of guidance from case law, statute or Canons is a mitigating factor. It is fair to say that in

the absence of clear guidance regarding acceptable behavior on social media, there is room for a

difference of opinion as to what is "acceptable". Respondent fullypmticipated in the Commission's

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investigation of this matter, made changes to her social media accounts, and admitted to wrongdoing

in the "Stipulation of Agreed Facts and Recommendation".

"This court consistently has recognized that mitigating circumstances exist when a judge

acknowledges his or her errors." Miss. Comm '11 011 Judicial Pe1forma11ce v. Clinkscales, 192 So.

3d 997, 1004 (Miss. 2016)( quoting Miss. Co111111 '11 011 Judicial Pe1forma11ce v. Darby, 143 So. 3d

564,570 (Miss. 2014)). CONCLUSION

Therefore, in light of the petiinent case law applied to Respondent's actions, the

Commission rightly found, by clear and convincing evidence, that Respondent's conduct violated

Section 177 A of the Mississippi Constitution ofl 890, as amended, and that said conduct constitutes

willful misconduct in office and conduct prejudicial to the administration of justice which brings the

judicial office into disrepute. Thus the full Commission found that the "Stipulation of Agreed Facts

and Recommendation" between the Commission and Respondent, which determined that

Respondent should be publicly reprimanded was well founded and approved.

Darlene D. Ballard, MSB# 1726 ballard@judicialperfonnance.ms.gov Rachel W. Michel, MSB# 100043 michel@judicialperformance.ms.gov

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Respectfully submitted,

MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE

/s/ Darlene D. Ballard

Darlene D. Ballard Executive Director

Meagan C. Brittan, MSB# 104021 brittain@judicialperfo1mance.ms.gov 660 North Street, Suite 104 Jackson, Mississippi 39202 Telephone: (601) 359-1273 Facsimile: (601) 354-6277

CERTIFICATE OF SERVICE

In compliance with Rule 25(d) of the Mississippi Rules of Appellate Procedure, I, Darlene

D. Ballard, Executive Director for the Mississippi Commission on Judicial Performance, do hereby

certify that I have this date electronically filed the foregoing Brief on behalf of the Mississippi

Commission on Judicial Performance, with the Clerk of the Supreme Court ofMississippi using the

MEC system which sent notification to the following:

Oliver E. Diaz, Jr. Post Office Box 946 Madison, MS 39130

David Neil McCarty 416 East Amite Street Jackson, MS 39201

Further, I hereby ceriify that I have mailed by United States Postal Service the document to

the following non-MEC paiiicipants:

Mr. Rick J. Coulter Commission Chairman Post Office Box 865 Columbia, MS 39429

This the 6th day of March 2017.

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Mr. Roy Campbell Presiding Committee Member Post Office Box 1789 Jackson, MS 39215

Isl Darlene D. Ballard

Darlene D. Ballard