Mississippi Removes Judge With A “Resounding” Dissent
The Mississippi Supreme Court removed a judge over social media posts and comments on the Kelly Clarkson Show
The Mississippi Commission on Judicial Performance (the Commission) brings this case against Municipal Court Judge Carlos Moore relating to social media posts and public comments by Moore that they allege violated Article 6, Section 177A, of the Mississippi Constitution, the Code of Judicial Conduct and a Memorandum of Understanding (MOU) between the Commission and Judge Moore. This Court finds that Judge Moore’s actions are in violation of the Mississippi Constitution, the judicial-conduct canons and the MOU. Judge Moore is hereby removed from the bench and assessed a $3,000 fine plus costs.
Judge Moore had Facebook and twitter accounts
On November 20, 2021, Judge Moore posted on social media the following comment: If anyone still believes justice is blind in America after the Kyle Rittenhouse acquittals yesterday, you just refuse to accept an ugly truth. I can almost guarantee you that if Kyle had been black and killed two white men in the same manner Kyle did, he most certainly would have been convicted. There has never been a greater need for black lawyers and judges in America to keep decrying the blatant inequities that exist in our criminal justice system and to keep pushing for a color blind and more equitable judicial system. The account name on the post was “Judge Carlos Moore,” and the subtitle stated “President at National Bar Association.”
On June 22, 2022, Judge Moore appeared on The Kelly Clarkson Show to discuss his DO Better ASAP alternative sentencing program. On the show, when asked why his DO Better ASAP program was so important to him, Judge Moore stated:
You know, I always felt that if I got in a position of power I would try to make a difference. So many times African Americans get the short end of the stick. There are many judges that don’t look like me and the people that appear before them. They cannot be empathetic because they don’t look like the people that go before them. But I preside over two jurisdictions where there are African Americans, 85 to 90% of people look like me, and I want to give them a second chance if they qualify. The Kelly Clarkson Show: Mississippi Judge Gives Young Offenders Second Chances Thru Do Better ASAP Program (NBC television broadcast June 22, 2022),
https://www.nbc.com/the-kelly-clarkson-show/video/mississippi-judge-gives-young-offenders-second-chances-thru-do-better-asap-program/ACCN563397925.
Ensuing proceedings included allegations that the judge had made “racially divisive” remarks
On October 20, 2023, the appointed Committee met to review and determine its recommendation. On December 8, 2023, the Commission voted to approve the committee recommendation with unanimous vote, said recommendation being a public reprimand, removal from office, suspension for six years and a $5,000 fine, plus costs. The Commission brings this recommendation before the Court by way of motion.
The court
Judge Moore’s actions constituted willful misconduct that was prejudicial to the administration of justice. He has failed to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Miss. Code of Jud. Conduct Canon 2A. Judge Moore has admitted his actions but continues to argue that he has done no wrong. A great likelihood exists that Judge Moore would continue to repeat his actions. See Miss. Comm’n on Jud. Performance v. Thompson, 169 So. 3d 857, 874 (Miss. 2015). Accordingly, a harsh sanction is warranted. Id.
Judge Moore has on multiple occasions been publicly reprimanded, he has once been suspended from office for sixty days and he has been fined $1500. Moore, 356 So. 3d at 133. The Commission requests Judge Moore’s removal from the bench and a suspension for six years in addition to a $5,000 fine and public reprimand.
Judge Moore’s words were aimed at creating public distrust in the judiciary and its ability to be impartial. Judge Moore, after being warned and agreeing through an MOU to comply with the judicial-conduct canons, willfully continued in his actions that were prejudicial to the administration of justice.
We find removal from the bench to be the appropriate sanction for Moore’s actions. Because this Court has found Judge Moore violated Article 6, Section 177A, removal from the bench is permanent.
KING, PRESIDING JUSTICE, DISSENTING:
Judge Carlos Moore’s statements at issue are discussions of broad public importance at best and ambiguous at worst. Therefore, I would find that Judge Moore’s statements were protected by the First Amendment and that the Commission failed to meet the high burden of demonstrating that its interests in protecting the impartiality of the judicial system outweighed Judge Moore’s First Amendment rights. Further, because this Court alone decides what conduct of a judge is sanctionable, I would find that this Court is not bound by a memorandum created by the Commission on Judicial Performance. Accordingly, I resoundingly dissent and would dismiss the Commission’s complaint.
The dissent contends that the judge spoke on matters of public concern and is protected speech.
As to Kelly Clarkson
The majority first discusses Judge Moore’s comments on the Kelly Clarkson show. It takes issues with Judge Moore’s comment that many judges “do not look like” him and “the people that appear before them.” Judge Moore expressed concern that those judges could not be empathetic toward people of color because they do not look like those people. The majority states that “[d]iscussions about racial disparity in the legal system or the desire for greater diversity in the judiciary and legal profession are certainly matters of public concern.” Maj. Op. ¶ 30. The majority then asserts that “blatantly attacking an entire race’s ability to exhibit a core, not just judicial but human, ability is not.” Maj. Op. ¶ 30.
But the majority reads into Judge Moore’s comments and takes those comments out of context. I strongly disagree with the majority’s assertion that Judge Moore’s comments on the Kelly Clarkson Show are an attack, much less a blatant one. In fact, Judge Moore’s comments are ambiguous at worst. What is clear is that Judge Moore was invited on the Kelly Clarkson Show to discuss his Do Better ASAP (Alternative Sentencing Accountability Program), which was aimed at giving nonviolent first-time offenders a second chance to avoid entering the criminal justice system and having a criminal record.
And
A full reading of the Kelly Clarkson transcript also shows no statement of Judge Moore’s indicating that he would not treat people of other races impartially. Judge Moore stated, “[b]ut I preside over two jurisdictions where there are African Americans, 85 to 90% of people look like me, and I want to give them a second chance if they qualify.” Judge Moore did not say that he would only give second chances to African Americans. A review of the entire transcript makes clear that Judge Moore was on the Kelly Clarkson Show to discuss his Do Better ASAP program, which gives second chances not solely to black offenders but to any nonviolent, first-time offender that qualifies for the program.
The dissent recounts a number of statements of judicial officers decrying disparate justice in our legal system
But protecting an impartial judiciary does not negate Judge Moore’s right to speak about matters of legitimate public concern, including his opinions on the lack of racial diversity in the judicial and legal system. Further, the Commission has failed to explain how Judge Moore’s ability to empathize with fellow African Americans affects the impartiality of the judicial system. This is not the rare case in which the state has demonstrated its narrowly tailored restriction. The Commission’s conclusory statements fail to establish its “very difficult burden” to show that its interest in protecting the impartiality of the judicial system outweighs Judge Moore’s First Amendment rights.
And noted disparate treatment of another Mississippi judge
Moreover, this Court previously has dismissed with prejudice judicial performance proceedings involving Judge Gay Polk-Payton, a justice court judge, who had maintained a social media presence employing the username “JudgeCutie.” En Banc Order, Miss. Comm’n on Jud. Performance v. Polk-Payton, No. 2016-JP-01685-SCT (Miss. June 15, 2017). The Commission alleged that Judge Polk-Payton had violated Canon 2A by posting numerous times in her judicial robe, and while using the username “JudgeCutie.” There, the Commission alleged that Judge Polk-Payton
maintained four Facebook pages, a Youtube account, a Twitter account, and an Instagram account. [Her] username on Instagram and Twitter was ‘Judge Cutie’. While posting on these numerous sites, [Judge Polk-Payton] posed half-robed in promotional materials, published posts about sitting on the bench with unclear hair after going to the gym, and posted a photograph wearing her robe which she titled #myuniform, to cite a few examples. Brief on Behalf of the Mississippi Commission on Judicial Performance, Miss. Comm’n on Jud. Performance v. Polk-Payton, No. 2016-JP-01685-SCT (filed Mar. 6, 2017).
The Commission additionally alleged that Judge Polk-Payton had “written inflammatory and controversial political posts[,]” namely:
I became a judge so that I could do my part [to] restore 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 petit jury. 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[10]
Following oral argument, this Court found that “no violation of the Mississippi Code of Judicial Conduct . . . has been proven by clear and convincing evidence ” and dismissed the proceedings with prejudice. En Banc Order, Miss. Comm’n on Jud. Performance v. Polk-Payton, No. 2016-JP-01685-SCT (Miss. June 15, 2017). Accordingly, based on this Court’s prior action, I would find that Judge Moore did not commit misconduct by failing to comply with MOU 1.
Oral argument linked here.
I strongly encourage interested readers to watch the oral argument and form their own opinion about what drives the result.
Note that the prosecutor repeatedly refers to the accused as “Mr.” rather than “Judge.”
It appears that the dissenting justice is the only African American member of the court. (Mike Frisch)