November 7, 2013 11:15:38 AM
Editor's Note: An unedited version of Turnage's letter can be found as an PDF attachment with this online letter.
On behalf of the Mayor and City Council I am writing in response to your numerous articles calling upon the Mayor and City Council to suspend or remove from office Municipal Court Judge Nicole Clinkscales.
In the Oct. 29 edition of The Commercial Dispatch, Sarah Fowler began the charge against Judge Clinkscales in an article entitled "Judge attacks school board member on Facebook." The lead sentence of the article then stated "A Columbus Municipal Judge took to her Facebook page to portray a member of the Columbus Municipal School District Board of Trustees as an Uncle Tom."
Ms. Fowler in the same article referred to the Mississippi Supreme Court case of Mississippi Commission on Judicial Performance v. Osborne, 11 So. 3d 107 (Miss. 2009), which involved the discipline of a judge for making racist comments during a campaign for re-election in Greenwood.
From my perspective, it appears that the Dispatch has attempted to "reverse engineer" your articles about Judge Clinkscales posts in an effort to contort Judge Clinkscales Facebook comments so as to be bound by the precedent established in Osborne. However, Osborne, is drastically different from Judge Clinkscales' Facebook postings. In Osborne, County Court Judge Solomon Osborne addressed the Greenwood Voters League as follows:
White folks don't praise you unless you're a damn fool. Unless they think they can use you. If you have your own mind and know what you're doing, they don't want you around.
Osborne, 11 So. 3d at 109.
To be sure, there can be no debate that Judge Osborne classified members of the white race in a negative light. His statements patently called into question his ability to be fair when adjudicating court cases involving white persons.
In contrast to Osborne, Judge Clinkscales' Facebook posting said "I never thought I'd see the kind of "tom" foolery AGAIN that I have seen in what is supposed to be an arena of education and higher order thinking. We are yet reduced back to having to defend an opposing view and race is the dirty little word no one wants to say yet it continues to be tossed around. I am SO over Board Member Turner!"
In order for a person to conclude that Judge Clinkscales was referring to board member Turner as an "Uncle Tom" one has to draw an inference or a conclusion from words that do not appear in the writing. Applying that approach, The Dispatch would have the Mayor and City Council remove a municipal court judge from office based upon what it thinks she thought when she made the post.
It has been suggested that the Mayor and City Council had no choice but to suspend or remove Judge Clinkscales from office because they suspended some emergency responders following their vile and reprehensible social media comments about the mother of an injured minor. Yet, Judge Clinkscales Facebook posts were in no way similar to the comments of the fireman who resigned following his social media postings. Therein, the fireman posted:
"People never cease to amaze me. Mama yelling oh my babyeee my babyeee ....
Hey you stupid ass, where was babyeees mama at [sic] while your 2 year old was getting hit by a truck [sic]. Mama needs to have her guts cut out so there won't be anymore [sic] babes [sic]. Freeloading Ignorant woman.
I cannot disclose what conversations occurred during the executive session on Tuesday night, Nov 5, 2013. Nor would I discuss an active personnel matter. However, the Mayor and City Council are aware that a judge has to forfeit some of her rights under the First Amendment that might otherwise be available to "John Q Citizen." That having been said, a municipal court judge does not, by virtue of her office, forfeit all of her First Amendment rights. Case law supports this.
In the end, there may be a time when the Mayor and Council would have no choice but to suspend or remove a judge of the Municipal Court for his or her public comments or social media postings. Perhaps in this case even reasonable minds can differ as to what Judge Clinkscales was trying to communicate. However, to employ inferences and innuendo in an effort to categorize ambiguous speech in a way that would justify discipline is ill-advised. Otherwise, people could be punished not for what they said, but for what others conclude what they were thinking even when they said something different. That is a prospect even George Orwell didn't contemplate in his book "1984."
City of Columbus