Thursday, June 15, 2017

Mississippi Dismisses Ethics Charges Based On Judge's Use Of Social Media

The Mississippi Supreme Court dismissed ethics charges against a judge

    The record supplementation requested by the Court during oral argument should, and it hereby is, rescinded. The Court finds that no violation of the Mississippi Code of Judicial Conduct by the respondent, Forrest County Justice Court Judge Gay Polk-Payton, has been proven by clear and convincing evidence, and that these proceedings therefore should be, and they hereby are, dismissed with prejudice. The Commission shall bear the costs. Not Participating: Coleman, Beam and Chamberlin, JJ. Order entered.

Notably, the charges appear to be related to the judge's use of social media that was the subject of an anonymous complaint.

The judge had stipulated to misconduct.

The argument - linked below - is really worth watching. The judges are tough on the attorneys for both sides .

Eugene Volokh filed an amicus brief on behalf of the judge.

The Commission seeks to discipline Judge Polk-Payton for speech that other judges routinely engage in: promoting a book and using social media. These common activities do not threaten the integrity of the judiciary. Rather, they are valuable to voters who can evaluate that speech and use it to make informed decisions.

The Commission believes Judge Polk-Payton’s use of the Twitter handle “@JudgeCutie” is “undignified and demeaning” to the judicial office, but the handle conveys the judge’s personality to the public, which is essential for an elected judge. The Commission also objects to a photo on the cover of the judge’s book, which shows her in ordinary clothes with her robe partially on; it is not clear whether she is putting on her robe or taking it off, but neither action demeans the judicial office.  “Undignified” is a subjective judgment, and if anyone should enforce it, it should be the voters: If they find Judge Polk-Payton’s speech unbecoming to a judge, they will make that known come election time.

Moreover, social media use by judges is relatively new. States have not provided much guidance on its use, other than to uniformly conclude that it is generally allowed. The Mississippi Judicial Canons, which require “high standards of conduct,” make no mention of social media. Neither the Commission nor this Court has offered any clarification. Given the vagueness of the Canons, Judge Polk-Payton had no way of knowing that her speech was impermissible.

Hattiesburg American reports

After an afternoon of hearing oral arguments Tuesday, the Mississippi Supreme Court ruled Thursday in favor of a Forrest County judge accused of unethical conduct.

The Mississippi Commission on Judicial Performance accused Justice Court Judge Gay Polk-Payton of using her position as a judge to promote sales of her book and to further her music career.

Polk-Payton could not be reached for comment Thursday, but her attorney Oliver Diaz said the complaint was frivolous and should never have been filed.

"I think the speed with which the judges responded speaks for itself," he said. "It usually takes three, four or five months after oral arguments to decide a case.

"This is unprecedented and speaks to how completely frivolous it is. (The Supreme Court justices) wanted the public to know Judge Polk-Payton did not do anything wrong."

The court issued a one-paragraph statement in which the judges said they could find no wrongdoing on Polk-Payton's part.

"The Court finds that no violation of the Mississippi Code of Judicial Conduct by the respondent, Forrest County Justice Court Judge Gay Polk-Payton has been proven by clear and convincing evidence, and that these proceedings therefore should be, and they hereby are, dismissed with prejudice," the court ruled.

On Tuesday the commission's senior attorney Rachel Michel said an anonymous tip was filed regarding Polk-Payton and a photo of her either putting on or taking off her judge's robe on the cover of her book. 

The commission filed the complaint with the state judicial system in 2014.

The complaint also said the use of Polk-Payton's judicial status on her social media accounts, including her former handle, "JudgeCutie," violated the state's code of conduct for judges.

Archived proceedings: Mississippi Supreme Court hears oral arguments regarding Judge Polk-Payton

During the oral arguments, some of the justices pointed out other judges who had worn their robes on the covers of their books. Justice Jess Dickinson, himself an author and musician, said there needed to be something more to the claim than just her wearing a judge's robe.

 "We both have difficult jobs," Dickinson told Michel during a live stream of court proceedings. "But I'm looking at the allegation that gives me concern in this case, and I'm looking at the canon that it is based upon and that canon requires us to find by clear and convincing evidence that Judge Polk-Payton lent the prestige of her office to advance her private interests.

"I don't believe anybody does that simply by saying, 'I'm a judge.'"

Justice James Kitchens said he was concerned about who filed the anonymous complaint with the commission and what his or her motive was.

"This could be some political enemy of the judge or somebody she had sentenced or someone who has an ax to grind with her," he said. "We know nothing of the credibility or the motives of the person making the complaint."

Dickinson added that Polk-Payton should be lauded for some of the things she has done as a judge.

"I commend her for talking about being a judge and being interested in justice and interested in fairness and fair play in the courts," he said. "Some of it should be on the front page of The Clarion-Ledger."

Attempts to reach Michel for comment were unsuccessful.

Justices Dawn Beam, Josiah Coleman and Robert Chamberlin did not participate.

The Commission on Judicial Performance was ordered to pay all costs associated with the case.

A video of a musical performance by the judge is linked here . (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2017/06/the-mississippi-supreme-court-dismissed-ethics-charges-hattiesburg-reports.html

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