Oxford, Miss. – is this who you want as a judge?

Ok, denizens of whatever circuit court district Lafayette County happens to be in, you voted in sufficient numbers for Shirley Byers to make the run-off.  Here’s her website. In it she states “I am the only candidate with circuit court experience as a sitting judge.  I have extensive judicial training having graduated from the National Judicial College in Nevada in 1995.  My legal background is exceptional and unmatched.”    The voters rejected her reelection bid in 1998.  If you’re a sitting judge, you have to make quite an impression to be voted out.

The Fourth district (it’s in the Delta) had Byers for ONE term before they voted her out.  That says a lot. And Byers has been trying to become a judge again since 2006.

The District 3, seat 2 judgeship was created by the legislature in 2005. In 2006, Byers ran for that seat but was defeated by Robert Elliott (it’s his retirement that has given Byers a THIRD shot at that seat). On Nov. 6, 2006, the Daily Journal had this article.

http://djournal.com/news/former-judge-longtime-attorney-face-off-for-judgeship/

It contains these two paragraphs:

“In 1994 Byers ran for and was elected as circuit judge in the 3rd Circuit Court District. Her four-year tenure there was marked by complaints to the Mississippi Commission on Judicial Performance.

At least two of the complaints against her were dismissed. Another, however, resulted in a hearing by the commission and ultimately in a public reprimand and fine levied by the Mississippi Supreme Court in 2000, two years after Byers was defeated for a second term as judge.”

There’s an article in the October 22, 2014, Daily Journal about this year’s candidates. (“Three compete for open Third District circuit judgeship”).

http://djournal.com/news/three-compete-open-third-district-circuit-judgeship/

“Asked what her critics might say about her, Byers answered, ‘I don’t listen to critics.’”

More recently, the Daily Journal reported on Byers’ history with the Mississippi Judicial Performance Commission.

But, hey, don’t rely on the voters who unelected her in 1998.  Read it for yourself.  This is what Byers did the last time she was a judge. Mississippi Judicial Performance Commission v. Byers.    

Here are the specifics and this is all straight from the opinion linked to above but I have boldfaced the headings and the reference to Judge Byers’ previous reprimand as well as a few other things you should not miss if you have any inclination whatsoever to vote for her.

Count I-Improper Sentencing

The first allegation of misconduct against Judge Byers arose from her erroneous sentencing of a defendant, and after being made aware of the error, her failure to correct the mistake, thereby violating Miss.Code Ann. § 99-15-26(1) (Supp.1999) and Canons 1, 2 A, 2 B and 3 A(1) of the Code of Judicial Conduct of Mississippi Judges.

* * * *

There was no proof that Judge Byers willfully intended to misuse the sentencing statute.   However, we find that the fact that she did misuse it and subsequently did nothing to correct her error, plus her false statement under oath regarding the sentencing, constitutes violation of the sentencing statute, the constitution, and the code of judicial conduct.

Count II-Improperly Extending Probation

. The second allegation of misconduct arose from Judge Byers’s improper extension of a defendant’s probation in violation of Miss.Code Ann. §§ 47-7-37 & 47 (Supp.1999) and Canons 1, 2 A, 2 B and 3 A(1) of the Code of Judicial Conduct In 1992, (prior to Judge Byers’s election), the defendant (Williams) was indicted, pled guilty to robbery and was sentenced to ten years in prison.   At a probation revocation hearing (arising from the 1992 sentence), Judge Byers found that Williams had failed to report to the probation office for almost four and one half years, so she ordered him to complete the Leflore County Restitution Center program, and upon completion of this program, to continue on intensive supervised probation for four more years.

* * * *

This order was improper under Sections 47-7-47 and 47-7-37.  Section 47-7-47 provides in part:

* * * *

Judge Byers admitted that she had improperly applied the statutes without authority.   The Commission concluded that her actions violated §§ 47-7-37 and 47-7-47 and that this was sufficient conduct to constitute willful misconduct as to Canons 1, 2 A, 2 B and 3 A(1) of the Code of Judicial Conduct of Mississippi Judges.   While Judge Byers clearly committed errors in judgment, which violated the statutes and the canons, we do not find her actions with regard to this Court to constitute willful misconduct.

Count V-Abusing Contempt Powers

The fifth allegation of misconduct arose when Judge Byers abused her contempt powers in arresting Cynthia Jeffries on a direct contempt charge, when in fact Jeffries’s actions were, at most, the basis of constructive (indirect) contempt.   We agree with the Commission’s findings that this charge is the most troubling and serious of all the charges set out in the formal complaint.

Judge Byers clearly did not use the correct procedural safeguards required for a charge of constructive contempt, which are:  “․ a specific charge, notice and a hearing.”  Purvis v. Purvis, 657 So.2d 794, 798 (Miss.1994) (citing Wood v. State, 227 So.2d 288, 290 (Miss.1969)).   The Commission found that this action violated Canons 1, 2 A, 2 B, 3 A(1) and 3 B(1) of the Code of Judicial Conduct.   This Court agrees with the Commission’s Findings on Count Five.

Jeffries, a newspaper reporter for the Delta Democrat Times, disobeyed an order given to her by Judge Byers when she published an article regarding a juvenile proceeding.   Judge Byers had Jeffries arrested and sentenced her to serve 72 hours in jail without bond.   Jeffries’s lawyer contacted another judge who advised him of Jeffries’s statutory right to a bond and set a bond releasing Jeffries from jail.

At the time the Jeffries matter occurred, the first formal complaint against Judge Byers, which also involved an abuse of judicial (although not contempt) powers, was pending.   In that matter, referred to at the hearing as Commission Inquiry 96-247, a Ms. Broadway was arrested in the hallway of the courthouse, searched, jailed, and bond was set for $2,500 by Judge Byers on charges of creating a disturbance and intimidating a judge.   Formal charges were never filed, and Broadway was finally released after she posted bond.   For her actions in the Broadway matter, Judge Byers was given a private reprimand.   She admitted that her involvement in setting bond was improper because she was the complaining witness.   At the present time of the complaint, Judge Byers was already on notice of the seriousness of abuse of her powers as judge, yet she again abused this power in the Jeffries matter.   Judge Byers argues that Jeffries was obliged to follow her orders not to publish the juvenile records and that Court orders have to “․ be obeyed until they are reversed or set aside in an orderly fashion.” (citing United States v. Dickinson, 465 F.2d 496 (5 th Cir.1972)).   Although Judge Byers recites the law in Dickinson, there are several reasons why this case cannot be used to justify her actions in the Jeffries matter.

First, in Dickinson, two reporters violated a court order not to publish details of the evidence taken in a court hearing.  Dickinson at 500.   These reporters were held to be in contempt, and the opinion reflects that “a show cause order was issued and following a hearing thereon, the district court found the appellants guilty of criminal contempt for knowingly having violated the November 1 order.   Each defendant was sentenced to pay a fine of $300.00.”  Id.

In the case sub judice, when Judge Byers found out that Jeffries had disobeyed her court order, she had an arrest warrant issued and Jeffries was brought before her with no filing of an affidavit nor an order to show cause.   Judge Byers stated that the purpose of the “hearing” in chambers was for Jeffries to show cause.   Jeffries was not given any prior notice that a hearing was to be held at a certain time or place.   She was not allowed to present witnesses or to put on any evidence.   She was found to be in “direct” contempt and was sentenced to 72 hours in jail.   Jeffries’s lawyer was present during the proceeding and asked if the charge was for direct contempt for writing the article.   When he asked if he could make a further record, Judge Byers told him he could not.

Jeffries’s lawyer then asked if Judge Byers would consider an appeal bond, which she refused.   Judge Byers later stated that she was under the impression that bond on this matter was discretionary with the judge.   However, Miss.Code Ann. § 11-51-11 (Supp.1999) provides that an appeal from a judgment for criminal contempt “shall be allowed upon the posting of a bond”.   Judge Byers stated that she had her law clerk research contempt charges, yet she admitted that she was not aware at the time of § 11-51-11.

Jeffries was also denied her procedural rights in contradiction to the requirements of a charge for constructive contempt as defined by this Court in Purvis.  Purvis at 798.   In Dickinson, although the reporters were in contempt and were only given a fine, a show cause was issued and a hearing was held thereby providing the parties with due process.  Dickinson at 500;  Purvis at 798.   The often confused labels that a trial judge uses in contempt charges do not control;  the clarity or ambiguity of the contempt order as well as the procedures followed to enter the contempt sanctions are what govern.   Here, the violation of the order occurred outside the presence of the court and thus was a constructive contempt charge.   The order was entered as an unalterable punishment for having violated a court directive, thereby constituting criminal contempt.  Hinds County Bd. of Supervisors v. Common Cause, 551 So.2d 107, 120-21 (Miss.1989).   Criminal contempt is a separate action in which a bond must be posted before an appeal is authorized.   Miss.Code Ann. § 11-51-11 (Supp.1999).   Judge Byers denied Jeffries the right to bond in violation of the statute.

Judge Byers’s reliance on Dickinson is further misplaced since the United States Supreme Court has held that a prior restraint on speech is presumptively invalid and the court issuing the order must balance factors required in order to overcome this presumption.  Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562, 570, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).   Whether Judge Byers knew about the holding in Nebraska Press is immaterial.   The issue is the failure to follow statutory requirements and case law when depriving a citizen of liberty.  Miss. Const. art. 3, § 14;  Miss.Code Ann, § 11-51-11 (Supp.1999);  Purvis, at 798.

Procedural irregularities occurring in the arrest of a citizen can amount to judicial misconduct, and a judge should be, “admonished in the strongest possible terms to learn the law and administer his office in strict conformance therewith.”  In re Bailey, 541 So.2d 1036, 1037 (Miss.1989).   “[A] judge’s intemperance with defendants, court personnel, and attorneys is conduct which prejudices the administration of justice and casts the judicial office into disrepute”, and cannot be tolerated.  Mississippi Comm’n on Judicial Performance v. Spencer, 725 So.2d 171, 179 (Miss.1998).   Criticism will surely come to those who hold elected positions, but, “[t]hose who accept judicial office must expect and endure such criticism” and be “․ long of fuse and thick of skin.”  Mississippi Judicial Performance Comm’n v. Walker, 565 So.2d 1117, 1123 (Miss.1990) (citing DeGeorge v. Superior Court, 40 Cal.App.3d 305, 312, 114 Cal.Rptr. 860 (Cal.Ct.App.1974)).  “Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges.   A judge must avoid all impropriety and appearance of impropriety.   He must expect to be the subject of constant public scrutiny.   He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”  (Miss.Code of Judicial Conduct Canon 2 cmt.)

In the case sub judice, Judge Byers abused her powers when she used the incorrect procedures to hold Jeffries in contempt and put Jeffries in jail.   This Court in Walker, restated that a judge may behave in a manner that is prejudicial to the administration of justice so as to bring the judicial office into disrepute and the result is the same regardless of whether bad faith or negligence and ignorance are involved.  Id. at 1123.   Having a citizen arrested and put in jail without following the correct procedural safeguards of giving a specific charge, notice and a hearing violates Canon 1 since disregard of the law through negligence or ignorance brings the integrity and independence of the judiciary into question.   These actions erode the public’s confidence in Judge Byers’s ability to sit as an acting judge, in violation of Canon 2 A. The actions taken by Judge Byers further violate Canons 3 A(1)-being faithful to the law and maintaining professional competence, and 3 B(1)-diligently discharging administrative responsibilities and maintaining professional competence in judicial administration.   This Court finds that Judge Byers did violate Canons 1, 2 A, 3 A(1) and 3 B(1) of the Code of Judicial Conduct of Mississippi Judges with regard to Count V.

Count VI-Violation of Section 177A

Count VI charges that Judge Byers, by engaging in the aforementioned conduct, violated Section 177A of the Mississippi Constitution of 1890 as amended (1979), and specifically that said conduct constitutes violations of subsections (b) willful misconduct in office and (e) conduct prejudicial to the administration of justice which brings the judicial office into disrepute.   As stated previously, willful misconduct is the improper or wrongful use of power that involves more than an error of judgment or a mere lack of diligence that may occur through negligence or ignorance not amounting to bad faith.   Russell, 691 So.2d at 936-37;  Milling, 651 So.2d at 538;  see also Mississippi Comm’n on Judicial Performance v. Fletcher, 686 So.2d 1075, 1077 (Miss.1996).   The Commission found by clear and convincing evidence that the violations stated in Counts I, II, III and V constituted a violation of Section 177A, Count VI.

This Court finds by clear and convincing evidence, that Judge Byers’s conduct, in its totality, constituted willful misconduct in office and conduct prejudicial to the administration of justice.

(updated to correct the year  that Byers was defeated in the Third District.  The voters in the Third Circuit Judicial District tolerated Byers for a single term before she was defeated for reelection in 1998.  She obviously made quite an impression there).

3 thoughts on “Oxford, Miss. – is this who you want as a judge?

  1. I went to the library to see if I could find the election results for 1998 in the Clarion Ledger. I didn’t find them but I did see a story on B 3 of the April 19, 1995, issue reporting how Byers spent $10,259 for office furniture. A leather chair was $1185; mahogany desk was $1885; and $1469 was spent on a mahogany credenza. The rest went for a sofa, lamps and an art print. “Byers refused to comment” the story reports. The secretaries for Circuit Judges Eugene Bogen and Chancellor Bill Griffin said that their bosses brought their own furniture to their offices.

    Then there’s this:
    Byers, Shirley
    Former circuit judge in Greenville must pay for items taken from office, 4/22/99, 4B

    http://www.jhlibrary.com/reference/cl_indexes/cl1999.htm#B

    And this:

    See page 7 of the State Auditor’s report from 1999:

    Audit Exceptions Report, 1999

    Former Circuit Judge Shirley Byers
    $2,841.00
    Misuse of Public Funds
    Disposition: Paid in full and settled to appropriate fund through State Auditor’s Exception Clearing Account.

  2. you can never get Shirley byers to give you a call if you call her ten times in a week don’t need that in a office need someone will return your call there was 4 differ ones trying to get a anwser

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