Throwback Thursday

5 years ago this month:

  • The Arizona Commission on Judicial Conduct informally reprimanded a judge for numerous improper ex parte communications with the parties on 1 side of a case. Jayne, Order (Arizona Commission on Judicial Conduct July 26, 2011).
  • The Arizona Commission on Judicial Conduct informally reprimanded a judge for making derogatory statements toward a litigant who was also a hearing officer and toward another judge. Parker, Order (Arizona Commission on Judicial Conduct July 26, 2011).
  • The California Commission on Judicial Performance admonished a judge for (1) in a domestic violence case, remarks that articulated stereotypes about 2 ethnic groups and comments that gave the appearance she had already accepted the petitioner’s version of events before hearing the defense case and (2) granting a mistrial in a family court case “for reasons peculiar” to her own calendar. Public Admonishment of Pollard (California Commission on Judicial Performance July 13, 2011).
  • Accepting the recommendation of the Judiciary Commission based on a stipulation, the Louisiana Supreme Court censured a judge for failing to immediately recuse from a divorce case despite his long-standing, close friendship with both parties, continuing to socialize with the husband and having ex parte conversations with him when a custody dispute arose, and signing an ex parte order giving the husband interim physical custody of their child that was contrary to statutory requirements. In re Badeaux, 65 So. 3d 1273 (Louisiana 2011).
  • Based on a stipulation in which the judge agreed never to serve as a judge again, the Neva­da Commission on Judicial Discipline permanently prohibited a former judge from seeking or accepting any judicial office of any kind in any location in Nevada for repeatedly engaging in ex­tremely inappropriate and offensive comments and actions with court staff even after being advised that his conduct was unacceptable and offensive. In the Matter of EnEarl, Findings of Fact, Conclusions of Law, Consent Order Imposing Discipline (July 1, 2011).
  • The New Hampshire Judicial Conduct Committee reprimanded a retired judge for his demeanor in 3 criminal cases. Jones, Reprimand (New Hampshire Judicial Conduct Committee July 9, 2011).
  • Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct admonished a part-time judge who took judicial action in 9 cases in which a client of the judge’s law firm represented a party. In the Matter of Shults, Determination (New York State Commission on Judicial Conduct July 7, 2011).
  • Based on an agreed statement of facts, the New York State Commission on Judicial Conduct censured a judge who presided at an arraignment when the defendant was his co-judge’s son and the complaining witness was his co-judge. In the Matter of Ridsdale, Determination (New York State Commission on Judicial Conduct July 20, 2011).
  • The North Carolina Judicial Standards Commission reprimanded a judge for asking another judge to remit costs and a fine in a case involving the elected register of deeds. Public Reprimand of Hayes (North Carolina Judicial Standards Commission July 26, 2011).
  • The Texas State Commission on Judicial Conduct reprimanded a judge for, during the magistration of a college student charged with the theft of an Aggie ring, displaying his own Aggie ring, advising the student that he should consider attending another school, and relying on information not contained or charged in the probable cause affidavit to enhance the standard bond for a state jail felony from $5,000 to $50,000. Public Reprimand and Order of Additional Education of Boyett (Texas State Commission on Judicial Conduct July 11, 2011).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct reprimanded a judge for driving while intoxicated and hit and run. In re Lyman, Stipulation, Agreement, and Order of Reprimand (Washington State Commission on Judicial Conduct July 8, 2011).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct reprimanded a judge for summarily holding a domestic violence complainant in contempt after she recanted a statement she had given to the police. In re Shelton, Stipulation, Agreement, and Order of Reprimand (Washington State Commission on Judicial Conduct July 8, 2011).

What they said that got them in trouble in the first half of 2016

  • “Well, when you trust a woman that’s what you get.” Judge to defendant who blamed his failure to make a payment on his ex-fiancé to whom he had allegedly entrusted the money.  In the Matter of Scattergood, Order (New Jersey Supreme Court March 8, 2016) (reprimand and bar of former judge for this and other misconduct).
  • Fees and costs “did not seem fair and . . . may be a scheme for the State to make money.” Judge to defendant who challenged his obligation to pay after pleading guilty, although the judge added that the defendant was receiving a benefit by avoiding an assessment of points on his license.  In the Matter of Scattergood, Order (New Jersey Supreme Court March 8, 2016) (reprimand and bar of former judge for this and other misconduct).
  • “You say one more word to me, you’re out of here, one more word. Go ahead and say it.  Tempt me.”  Judge to defendant who became argumentative after the court officer confiscated his cell phone and the judge required that he pay $50 for its return.  In the Matter of Scattergood, Order (New Jersey Supreme Court March 8, 2016) (reprimand and bar of former judge for this and other misconduct).
  • “Sneaky snake.”  Judge about party and his attorney during hearing on a notice of transfer, which the judge acknowledged was proper.  Re Davenport (Tennessee Board of Judicial Conduct May 18, 2016) (reprimand for this and related misconduct).
  • “Your husband must be rolling over in his grave right now;” and, “You need more than psychological help. I wish I could do more to you.  You don’t seem like you would do very well in jail.  I just arrested someone earlier today for violating a peace bond;” and, “What do you own?  Where do you work?  How do you pay your bills?  Who’s going to take care of you?”  Judge to recent widow in peace bond proceeding brought by her stepchildren accusing her of inappropriate conduct.  In re Laiche, Opinion (Louisiana Supreme Court March 15, 2016) (removal for this and other misconduct).
  • “I don’t know what the hell you two are thinking, but get it together. All of you.” and “I don’t give a crap about any of you.”  Judge to parents in a custody hearing.  Hancock, Order (Arizona Commission on Judicial Conduct May 12, 2016) (reprimand).
  • “I fell [sic] sorry for everybody from here on now.” Judge just after holding a self-represented defendant in contempt for what she said and her “attitude” and before holding a second self-represented defendant in contempt for his “insolent behavior.”  In re Free (Louisiana Supreme Court June 29, 2016) (1-year suspension without pay for this and other misconduct).
  • “What, your skin was ashy? You were ashy trying to get your skin right with some Aveeno?”  Judge to defendant who stole Aveeno lotion from a Wal-Mart; the judge’s statement caused audible laughter in the courtroom.  In re Free (Louisiana Supreme Court June 29, 2016) (1-year suspension without pay for this and other misconduct).
  • “Now see how I knew that, you are a pretty good sized girl. You are like me, you are pretty good sized.  I figured out the baby clothes.  That seems to be like a common thing, people just go to Wal-Mart and steal baby clothes.  Man, go to Baby Gap or something if you are going to take a chance, get on the big ones.  Go for something worth something, man.”  Judge to 2 women who pled guilty to shoplifting from a Wal-Mart; the judge’s statement provoked laughter in the courtroom.  In re Free (Louisiana Supreme Court June 29, 2016)) (1-year suspension without pay for this and other misconduct).
  • “For your consideration, there’s a blood drive outside and if you do not have any money and you don’t want to go to jail, as an option to pay it, you can give blood today.” Judge while presiding over a docket to recover court-ordered costs, fees, fines, and restitution.  In the Matter of Wiggins, Final judgment (Alabama Court of the Judiciary January 21, 2016) (censure).
  • “So, if you choke them, that’s a felony.  If you punch them in the eye, that’s a misdemeanor. . . . If you punch them in the eye and then choke them, they’ll never know you choked them. . . . That’s some crazy stuff, man.  It’s like they want to legislate for every little thing….  Oh, you touched the right finger?  That’s a different thing there now.  Oh you grabbed her by the left arm, that’s a different crime.    And, I say that, but women beat upon the men too.  I see that a lot now days.”  Judge in exchange with assistant district attorney during proceedings in a domestic violence case.  In re Free (Louisiana Supreme Court June 29, 2016) (1-year suspension without pay for this and other misconduct).
  • “My observation is that I just don’t know anybody that — nicer than you and your wife. Your kids come to church.  If I don’t let you — if I don’t modify [your probation] at least to some extent, that I would consider my job to be, in this regards, a farce.  There’s nobody else — if I don’t modify it under these circumstances, then I would never modify it for anybody, and although there’s a lot of sensitivity in these types of cases, it’s clear that the — the young lady’s — she is indifferent about it.  Her father is indifferent about it.  The Chief of Police, who had nothing bad to say about you; ….  So, I’ll say no more, and I applaud you for becoming a better person and I hereby, because of your conduct, I’m going to — considering the modification, I’m going to go a step further.  I hereby terminate you, Anthony, Garcia, from all conditions of probation.  You have met all of ’em.  You are an asset to the community, to the church, to your family, and your friends.”  Judge terminating early the probation of a man with whom he was acquainted through their attendance at the same church and participation in the choir.  In re Best (Louisiana Supreme Court June 29, 2016) (15-day suspension without pay for this and other misconduct).
  • “This conversation never happened.”  Judge to deputy district attorney after an ex parte communication about a case that was pending sentencing before him.  In the Matter of Scott, Decision and order (California Commission on Judicial Performance February 17, 2016).
  • “Why do defense lawyers not want to try cases in front of me cuz they know I’ll put people in jail.”  Judge interrupting a private meeting between the family members of the victims in a murder case and members of the district attorney’s office after a hearing in the case.  In re Free (Louisiana Supreme Court June 29, 2016).
  • “If I had cash [or money], I’d give you a tip.”  Judge to female assistant district attorney when she brought him coffee after he handed her his empty coffee mug.  Public Admonishment of Bergeron (California Commission on Judicial Performance January 25, 2016) (admonishment for this and other misconduct).
  • “I’m sure you are just as busy with your physical therapy, workout time and all. I don’t appreciate you checking on me — I don’t work for you and never will.  I was elected by the citizens of this county, unlike you.  I would hope you and your pals upstairs would have better things to do with your time as Superior Court Judges than keep a journal on another Judge’s comings and goings.  Pathetic . . . get a life.  I look forward to running against you for [presiding judge].  The Court will be a lot better off without you in some position of assumed power.  Good luck in the campaign.  Have a really nice night.”  Judge in e-mail to assistant presiding judge after she asked where he had been and about his availability to help cover the court’s calendar.  Inquiry Concerning Trice (California Commission on Judicial Performance February 4, 2016) (censure for this and other misconduct).
  • “[I like how she] shoves [or rams] it up [the law guardian’s ass].”  Judge about deputy attorney general during a break in court proceedings in a Department of Children and Families case.  In the Matter of Portelli, Order (New Jersey Supreme Court May 18, 2016) (reprimand for this and other misconduct).
  • “You look nice today.” Judge in note on legal pad he showed to family specialist while she was testifying.  In the Matter of Portelli, Order (New Jersey Supreme Court May 18, 2016) (reprimand for this and other misconduct).
  • “I’m an African American. African American talk about all kind of crazy things at all times.  So you don’t know when they mean anything.  You don’t even know what — if they talk to you about certain thing this minute, the next minute they talk to you about something else.”  Judge in discipline proceedings for rendering a judgment in a collections case without giving the African American defendants a meaningful opportunity to be heard.  In re Gremillion (Louisiana Supreme Court June 29, 2016) (removal).
  • “I have a public official job that this will kill me. It will become very bad.  I can’t tell you because if I tell you, I can get in trouble for that.  But I won’t.  I was on the phone with my wife, that’s why I was swerving.  This will kill me more than the average guy.”  Judge to trooper who stopped him for drunk driving; judge subsequently said “beyond the point of discretion, I’m a judge.”  In the Matter of Baptista, Order (New Jersey Supreme Court May 19, 2016) (censure for this and related misconduct).
  • “Yesterday at lunch.” Judge’s false statement about when he last had something to drink when trooper stopped him for drunk driving.  In the Matter of Baptista, Order (New Jersey Supreme Court May 19, 2016) (censure for this and related misconduct).
  • “Well, actually, it is.” Judge to the judge presiding over her personal case when she called and he said, “Well, it can’t be, it’s not about this, your case, is it?”  In the Matter of Dixon, Determination (New York State Commission on Judicial Conduct May 26, 2016) (censure).
  • “If I see you again, I’m going to make sure that the county sheriff takes you to jail.” Judge to driver he had had the police pull over after she passed him.  Public Warning of Brady and Order of Additional Education (Texas State Commission on Judicial Conduct March 3, 2016).
  • “I enjoy performing marriage ceremonies” and “make every effort to schedule them” when possible. Part-time magistrate’s web-site for his law practice.  In the Matter of Martinek, Opinion (June 17, 2016) (finding of misconduct, no sanction).
  • “Being on the road — I just got this exchange — you guys sound like a bunch of women, worrying about offending and being misunderstood and falling all over each other thanking everyone and getting misty eyed! Jeezus, boys, is it a menstrual [sic] thing?  The next thing we’ll be splitting the check at Finn McCool[‘]s ‘now you had the BLT and an iced tea, so you owe….’ Snap the hell out of it!!!  Everybody’s great, everybody’s in Bax, get the money up front and all of the rest of us will go.  New Judge [B.] will find [out] a judge has to go out of state to see boobs.  New Dad [S.] will go unless he knocks Momma up again.  [S] can spend an extra hour in the OR and pay for all of us!!  I’m in.  I’ve got a stake of fifty ones and a titty-deficit that needs cured.”  Justice in e-mail to his golfing group.  In re Eakin, Opinion (Pennsylvania Court of Judicial Discipline March 24, 2016) ($50,000 fine).
  • “Cast your vote in the Senate District 16 Special Election. I will be voting for Angela Turner Lairy! . . .  Let’s not lose this seat!”  Judge on social media.  Commission on Judicial Performance v. Clinkscales (Mississippi Supreme Court June 9, 2016) (removal for this and other misconduct).

 

Throwback Thursday

10 years ago this month:

  • The Arizona Commission on Judicial Conduct reprimanded a judge for improperly dismissing a lawsuit against a minor defendant based on a statute that prohibits a minor only from filing a lawsuit, not from being sued. Wilkins, Order (Arizona Commission on Judicial Conduct July 11, 2006).
  • Adopting the recommendation of the Judicial Qualifications Commission based on an agreement, the Florida Supreme Court reprimanded a judge for viewing pornographic web-sites from the computer in his chambers; the Court also ordered that the judge may retain his position only until the end of his term on January 1, 2007, at which time he will retire and that after his retirement, he will not serve as a senior judge and will not seek appointment or election as a judge. Inquiry Concerning Downey, 937 So.2d 643 (Florida 2006).
  • Pursuant to a statement of circumstances and conditional agreement for discipline, the Indiana Supreme Court reprimanded a judge for driving while intoxicated. In the Matter of Cruz, 851 N.E.2d 960 (Indiana 2006).
  • Agreeing with the recommendation of the Judiciary Commission based on a stipulation of facts, the Louisiana Supreme Court suspended a judge for 120 days without pay for (1) failing to issue judgments in 18 cases for from 3 to 9 months and failing to timely and accurately report to the judicial administrator that those cases were under advisement and (2) failing to timely reimburse the court for travel advances beyond the costs actually incurred and to timely file travel reimbursement reports. In re Lee, 933 So. 2d 736 (Louisiana 2006).
  • Adopting the recommendation of the Judicial Tenure Commission, the Michigan Supreme Court censured a judge for accepting in open court football tickets from an attorney appearing before him. In re Haley, 720 N.W.2d 246 (Michigan 2006).
  • The Nevada Commission on Judicial Discipline reprimanded a hearing master for asking a 16-year-old defendant to take off his t-shirt and belt in court, which caused his pants to fall to the floor, exposing his boxer shorts. In the Matter of Beller, Findings of Fact, Conclusions of Law, and Imposition of Discipline (Nevada Commission on Judicial Discipline July 31, 2006)
  • Approving a consent to censure based on stipulated facts, the Oregon Supreme Court censured a judge who had pled guilty to assault for recklessly causing physical injury to his wife and entered into the domestic violence deferred sentencing program. In re Moultrie, 139 P.3d 955 (Oregon 2006).

 

 

Judicial campaigns on social media

28 of the 100 elected judges who responded to a 2014 survey said their campaigns had used social media.  2014 Conference of Court Public Information Officers New Media Survey, at page 44.  That percentage seems low compared to campaigns for other elective offices and is, therefore, likely to increase.  The New Mexico Supreme Court recently acknowledged “the utility of an online presence in judicial election campaigns . . . .”  State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016).

A judicial election campaign may use social media to promote the candidate by, for example, creating a Facebook page.  (This post will use the terms for actions on Facebook to describe conduct on social media in general, but the principles apply to analogous actions on other social media platforms.  Where relevant, this post will also rely on advisory opinions discussing web-sites, not just interactive social media.)  As the Florida advisory committee explained, the code of judicial conduct “does not address or restrict a judge’s or campaign committee’s method of communication but rather addresses its substance.”  Florida Advisory Opinion 2009-20Accord North Dakota Advisory Opinion 2016-2; ABA Formal Opinion 462 (2013).

A candidate’s social networking pages may allow visitors to list themselves as “fans” or supporters of the candidate.  Florida Advisory Opinion 2009-20.  The Florida committee stated that lawyers who practice before the judge may be fans of a judge’s campaign page even though the committee prohibits judges from being Facebook “friends” with lawyers who appear before them.  The distinction, the committee explained, is that, unlike a “friend” request on a personal page, on a campaign’s social networking site, the “judge or the campaign cannot accept or reject the listing of the fan,” and, therefore, “the listing of a lawyer’s name does not convey the impression that the lawyer is in a special position to influence the judge.”  See also ABA Formal Opinion 462 (2013) (“it is unlikely to raise an ethics issue for a judge if someone ‘likes’ or becomes a ‘fan’ of the judge through the judge’s [electronic social media] political campaign site if the campaign is not required to accept or reject a request in order for a name to appear on the campaign’s page”).

Most judicial ethics opinions on the issue seem to assume, without expressly requiring, that a campaign page will be separate from candidate’s personal or official page.  The Missouri committee advised that “when a judge chooses to use social media as part of the judge’s election campaign, best practice would suggest that a separate public social media site be used.”  Missouri Advisory Opinion 186 (2015).  The committee stated that the “site should be limited to the judge’s identity, qualifications, present position or other facts that are relevant to allowing the voters to make an informed decision.”

Responsibility

The 37 judges who in the 2014 survey said they were not sure if their campaigns used social media should pay more attention in any future campaigns.  Keeping informed is the only way a candidate can comply with the code of judicial conduct requirements that a judicial candidate “take reasonable measures to ensure” that the campaign committee does not engage in activity that the candidate is prohibited from doing and “review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee . . . before their dissemination.”  Rules 4.1(B) and Rule 4.2(A)(3).  There is no exception to those requirements for social media even if a judicial candidate entrusts her campaign’s social media component to her campaign committee.  (A candidate also retains that responsibility if she delegates maintenance of a social media site to a third person other than a campaign committee.  New Mexico Advisory Opinion Concerning Social Media (2016).)

Thus, the candidate is responsible for what the committee places on the internet and must ensure that the committee does not make statements there that the candidate cannot make.  See Florida Advisory Opinion 2012-15.  For example, the Missouri committee stated that, like judicial candidates, judicial campaign social media sites “must not misrepresent any facts, make pledges or promises of conduct in office other than the faithful and impartial performance of judicial duties or make statements that detract from the dignity of judicial office.”  Missouri Advisory Opinion 186 (2015).  The requirement that a judicial candidate “maintain the dignity appropriate to judicial office” was deleted from the model code in the 2007 revisions (although the requirement still applies to judges at all times), and many states no longer have it in their rules for judicial campaigns.  It does seem like a best practice, however, if not a requirement, for social media efforts and other campaign conduct.  See New Mexico Advisory Opinion Concerning Social Media (2016).

A campaign social media page “may not endorse or solicit funds for another candidate for public office” because a judicial candidate may not do so.  New Mexico Advisory Opinion Concerning Social Media (2016).  This includes any communication of approval or support, such as “liking” another candidate’s social media page.

A judicial candidate who is on a slate with other candidates may, according to the New York advisory committee, permit his campaign committee to add the committees of those other candidates as Facebook “friends” and/or to click “like” on their campaign committees’ pages because that link creates “no more appearance of an impermissible ‘endorsement’ than campaigning door-to-door or appearing in joint advertisements with other candidates,” which is expressly allowed by the code.  New York Advisory Opinion 2015-121.  However, the committee added that a judicial candidate must instruct his “campaign committee to refrain from any comments that would create an appearance the candidate directly or indirectly publicly endorses other candidates . . . , including by making any comments on other candidates’ qualifications . . . .”  Further, the committee emphasized that any such Facebook connections must be made from the committee’s page, not from the candidate’s personal account.  See also New York Joint Advisory Opinions 2012-84/2012-95(B)-(G) (a judicial candidate may include a link from her campaign web-site to a political organization’s web-site that contains information promoting her campaign).

All restrictions on judicial candidates and campaigns apply on-line as well as in-person, but the exact rules vary from state-to-state.  The model code restrictions (Rule 4.1) that seem particularly relevant to social media prohibit a judicial candidate from:

  • Making speeches on behalf of a political organization;
  • Publicly endorsing or opposing a candidate for any public office;
  • Soliciting funds for a political organization or a candidate for public office;
  • Personally soliciting or accepting campaign contributions other than through a campaign committee;
  • Publicly identifying as a candidate of a political organization;
  • Seeking, accepting, or using endorsements from a political organization;
  • Knowingly or with reckless disregard for the truth making a false or misleading statement;
  • Making a statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court; and
  • In connection with cases, controversies, or issues that are likely to come before the court, making pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

 

Solicitations

Because the code prohibits a judicial candidate from personally soliciting campaign funds except through a campaign committee (Rule 4.1(A)(4)), the Florida judicial ethics committee advised that “Websites and Facebook pages promoting the candidacy of a judge or judicial candidates should be established and maintained by these committees, and not by the judge or judicial candidate personally.”  Florida Advisory Opinion 2010-28See also Florida Advisory Opinion 2008-11 (a campaign web-site maintained personally by a judge may not refer to and facilitate the giving of financial and other support to the judge’s re-election campaign, but the judge’s campaign committee may create and maintain a campaign web-site that does so).  A judicial campaign site that solicits funds must make it clear that the candidate does not maintain it personally.  Florida Advisory Opinion 2012-15.  The word “contribute” may be placed under “volunteer, endorse, education, experience, family, and photos” if the site is clearly managed by the committee and does not give the appearance that the candidate is managing the site or its content.  Florida Advisory Opinion 2010-21.

The North Dakota committee advised that a judicial candidate “may establish electronic social media pages along with his/her campaign committee and participate in those aspects of maintaining the social media pages that do not involve financial solicitation on behalf of the candidate.”  North Dakota Advisory Opinion 2016-2.  The committee stated that social media pages established by the candidate or the candidate’s committee may link to a web-page that provides a place that allows for visitors to contribute to the candidate’s campaign.  See also New York Advisory Opinion 2007-135 (although a judge may not solicit campaign contributions on her own web-site, the judge’s campaign committee may do so on a web-site it sponsors if all donations are directed to the committee and not to the judge herself).

The New Mexico Supreme Court recently recommended that a judicial campaign social media site be established and maintained by the campaign committee, not a judicial candidate personally.  State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016).  The New Mexico judicial ethics committee advised that a judicial campaign committee may use a social media site to raise funds but that, because of the personal solicitation clause, a judicial candidate who maintains a social media site may not engage in fund-raising on his site and any financial contributions must be donated directly to his campaign committee.  New Mexico Advisory Opinion Concerning Social Media (2016).  (To comply with requirements specific to New Mexico, the opinion added, a judicial candidate must ensure that his committee tries to avoid soliciting contributions from litigants in pending cases, fund-raising results cannot be shared with the candidate, and the candidate must not access fund-raising information on the site.)

The New Mexico committee also advised that a “candidate should be cautious when inviting people to ‘like’ or ‘share’ a campaign page or post and take care to avoid any suggestion that in context might be perceived as a direct, personal solicitation of contributions . . . .”  The committee added that a “candidate may include a link from a campaign social media page to a web page maintained by the campaign committee, but any solicitation for contributions should be incidental to the structure of the page.”

Similarly, the Louisiana committee stated that a judicial candidate may link her personal web-site or social media page to her campaign committee’s social media page even if the campaign page is used in part to solicit funds, but not if it is used solely for fund solicitation.  Louisiana Advisory Opinion 271 (2016).  However, the committee explained, the link must be to a home page, not directly to a contribution page, although a link to a page that in turn links to a separate contribution page is permitted.  In addition, the committee stated, “when providing the link, the judicial candidate should make no mention of campaign contributions, but state something very general, such as:  ‘To find out more about my campaign, visit my campaign committee’s website at the following link.’”

The ABA advisory committee stated that “Websites and [electronic social media] promoting the candidacy of a judge or judicial candidate may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally.”  ABA Formal Opinion 462 (2013).  However, the 2007 ABA Model Code of Judicial Conduct does not prohibit judicial candidates from personally soliciting public statements of support (the 1990 model code did), so the basis for that advice is unclear unless the reference should have been to personal solicitations of contributions.

The North Dakota code prohibits a candidate from personally soliciting public statements of support and financial contributions except by “in-person oral solicitations to groups of 25 or more people” or by signing “printed or electronic materials” distributed by the campaign committee.  Thus, the advisory committee stated that a candidate may ask a visitor to a campaign social media page to “like” or “share” the page.  North Dakota Advisory Opinion 2016-2.  That a person may respond to a candidate’s public post or group solicitation by visiting a web-page where funds are solicited does not raise the concerns addressed by the rule, the committee concluded.  The committee did caution that, “on social media, just as in person, a candidate should avoid the sort of direct personal solicitation that could lead to allegations of bias, such as personal solicitations directed at individuals by private message or email.”

Ex parte communications, comments on pending cases

The West Virginia advisory committee stated that a judge should not post on her campaign web-site videos in which she answers questions about family law because she would be engaging in the impermissible practice of law and “potentially” in ex parte communications.  West Virginia Advisory Opinion 2016-1.  The committee stated that a judge or judicial candidate could post videos about procedures and what statutes say on child support calculations, for example, but “should be very careful to ensure that the explanations do not cross the line into legal advice or discussions concerning pending or impending matters.”  The committee also warned that such videos are likely to generate follow-up questions that a judge cannot answer.

The New Mexico Supreme Court stated that a judge who is a candidate should post no personal messages on a campaign social media page “other than a statement regarding qualifications,” should not allow public comments, and should not engage in any dialogue, “especially regarding any pending matters that could either be interpreted as ex parte communications or give the appearance of impropriety.”  State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016).  The Court did not address arguments that the trial judge’s social media posts about the case required reversal of a defendant’s convictions because it had reversed the conviction on the grounds that a prosecution witness testified via Skype, denying the defendant his right to confront adverse witnesses.  However, the Court took the opportunity to discuss its concerns about judges’ use of social media, cautioning judges to avoid both impropriety and the appearance of impropriety.  During the trial, the judge had posted on his campaign Facebook page, “I am on the third day of presiding over my ‘first’ first-degree murder trial as a judge.”  After trial, but before sentencing, the judge had stated, “In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch.  Justice was served.  Thank you for your prayers.”

Noting the interactive nature of social media sites, the New Mexico advisory committee identified a “potential for non-parties to post comments on pending cases” on a candidate’s social media page that “may lead to the appearance that the judge is participating in ex parte communications or statements concerning pending or impending cases . . . .”  New Mexico Advisory Opinion Concerning Social Media (2016).  The committee cautioned a judge to guard against such an appearance, and, if an ex parte communication does occur, to take the remedial action required by the code, that is, prompt notification of the parties and an opportunity to respond.

The committee noted that a judicial campaign committee may act as a “buffer” if the committee maintains the campaign social media site, rather than the judge.  The committee emphasized that a campaign committee “must vigilantly scrutinize the site to avoid any appearance that the judge is receiving ex parte communications and/or participating in improper communications.”

The New Mexico advisory committee also considered whether a campaign committee must fully insulate the judge from any improper communications, noting the committee could remove a communication without comment if the judge does not know about it.  The committee suggested that some ex parte communications would require a response that the judge would have to approve, which would necessitate remedial action in the case.  It seems, however, that a campaign committee should be able to effectively “screen” most if not all inappropriate on-line comments, eliminating the need for disclosure to the judge and, therefore, to the parties in a case, just as court staff may “screen” ex parte attempts to communicate with a judge in more traditional contexts.  See, e.g., New York Advisory Opinion 2015-178 (a housing court judge who repeatedly receives attempted ex parte communications from elected officials on behalf of their tenant-constituents should, if possible, have staff members return such communications to the sender without exposing the judge to the substance; if the judge does not review the communication, disclosure is not required, and the judge has no further obligation).

Throwback Thursday

20 years ago this month:

  • With his consent, the California Commission on Judicial Performance admonished a judge for (1) denying a defendant his right to appointed counsel based on the ability of others to pay and the possibility of future employment; (2) acting unjudicially in handling peremptory challenges; (3) appearing to exhibit animosity toward the public defender’s office and certain attorneys in that office, making improper, derogatory comments about them, and accusing the office of taking a case for improper reasons; and (4) exceeding his authority in the imposition of sanctions in a matter. Public Admonishment of Drew (California Commission on Judicial Performance July 1996) (http://cjp.ca.gov/res/docs/public_admon/Drew_07-96.pdf).
  • Pursuant to the judge’s agreement, the Indiana Commission on Judicial Qualifications admonished a judge for appearing to give preferential treatment to attorneys for collection agencies over individual litigants or their lawyers. Admonition of Barnard (Indiana Commission on Judicial Qualifications July 10, 1996) (http://www.in.gov/judiciary/jud-qual/files/jud-qual-admon-barnard-7-10-96.pdf).
  • Accepting the recommendation of the Judicial Standards Commission, the North Carolina Supreme Court censured a judge who became involved in a friend’s case and entered improper orders in a child custody matter. In re Ammons, 473 S.E.2d 326 (North Carolina 1996).
  • Accepting the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals reprimanded a family law master who attempted to get litigants in a case to agree to become sales representatives for Amway. In the Matter of Phalen, 475 S.E.2d 327 (West Virginia 1996).

Top judicial ethics stories of 2016 – so far

Resignation of Arkansas judge

Late summer 2015:  News stories report that Judge Joseph Boeckmann was having defendants work on his family farm in lieu of paying fees or doing community service, and the Arkansas Commission on Judicial Disability and Discipline confirms that it is investigating the allegations.

November 2015:  The Arkansas Commission files a statement of allegations alleging Judge Boeckmann, in addition to other misconduct, “used his influence over [certain] male litigants, as a judge, to insinuate compliance by the litigants for his personal and sexual desires.”  The Commission alleges that the judge offered certain young Caucasian male defendants “substitutionary sentences,” which meant he would require them to pick up cans alongside city roads or at his home where he would photograph them as they were bending over and that he solicited sexual relations from them in exchange for reduction of or dismissal of their fines and costs.

The Arkansas Supreme Court appoints a special judge to handle Judge Boeckmann’s docket (he is a part-time judge).

December 2015:  The judge files an answer denying the allegations.

 January 2016:  In an amended statement, the Commission adds more examples of the judge appearing “to act as employer, financer, and, on occasion, intimate partner of some defendants appearing before him” and other allegations.  The Commission’s executive director tells reporters that, after the original allegations were filed and reported in the news media, more victims came forward.

May 2016:  The Arkansas Commission announces the resignation and permanent removal of Boeckmann and concludes its proceedings against him.  Prior to his resignation, the Commission had filed a notice of intent to introduce evidence of sexual misconduct by Boeckmann when he was a private attorney and a deputy prosecuting attorney.

Although there have been reports of criminal investigations by both federal and state law enforcement agencies, no criminal charges had been filed as of July 11.


Another Pennsylvania scandal

For the 3rd time in 3 years, a justice of the Pennsylvania Supreme Court resigned or retired following conviction of a crime or during a judicial misconduct investigation.  (In early 2013, Justice Joan Orie Melvin resigned after she was convicted on state charges of using state employees in her judicial election campaigns.  In late 2014, Justice Seamus McCaffery retired while the Judicial Conduct Board was investigating allegations against him, including allegations he had exchanged hundreds of sexually explicit e-mails with members of the Office of Attorney General.)

October 2014:  The Judicial Conduct Board releases a statement confirming that Pennsylvania Supreme Court Justice Michal Eakin had self-reported that he received a number of e-mails in 2010 that may have violated the code of judicial conduct, that it had received other complaints about the same conduct, and that it was conducting an independent investigation.

December 2014:  The Board dismisses the complaints against Justice Eakin.

October 2015:  The Board confirms that it is conducting a new investigation after receiving additional materials from the Attorney General regarding e-mails involving Justice Eakin, noting that recent revelations demonstrate that the Board had not been “provided with all of the information on the Attorney General’s servers” during its 2014 inquiry.  (In September 2015, the Pennsylvania Supreme Court suspended the Attorney General’s law license after she was charged with perjury, obstruction of justice, and other offenses.)

December 2015:  The Board files a complaint alleging that Justice Eakin committed misconduct by sending e-mails to and receiving e-mails from other judges and attorneys, particularly defense attorneys and employees of the Office of Attorney General, that “someone of reasonable sensitivities would find offensive” and that were so extreme as to bring the judicial office into disrepute.

The Court of Judicial Discipline suspends Justice Eakin with pay pending proceedings on the complaint.

In his answer, the justice admits most of the factual allegations but denies that he committed misconduct, noting “these were Justice Eakin’s private, personal email messages (both sent and received, whether opened or unopened) and were never intended by him to be made public.”

February 2016:  The Board and Justice Eakin file a joint motion to submit a proposed stipulation to the Court of Judicial Discipline, which is denied.

March 2016:  The justice files a motion to present a mediated settlement, which is denied.

Justice Eakin resigns.

Based on stipulations of fact in lieu of trial, the Court of Judicial Discipline fines the now-former justice $50,000 for exchanging e-mails with friends and professional acquaintances that were insensitive and contained inappropriate references to gender, race, sexual orientation, and ethnicity, using his Commonwealth-issued computer equipment and a personal web-based e-mail address.  In re Eakin, Opinion (Pennsylvania Court of Judicial Discipline March 24, 2016).


The appearance and reality of impartial justice

The U.S. Supreme Court again affirmed the importance of “both the appearance and reality of impartial justice” in state courts 6 years after it had held that an objective test for impartiality applied under the federal due process clause in Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).  In the most recent case, the Court vacated a 6-0 decision of the Pennsylvania Supreme Court denying post-conviction relief to a prisoner convicted of first-degree murder and sentenced to death; the Court held that (1) the participation of a justice who had as the district attorney approved seeking the death penalty in the prisoner’s case violated the Due Process Clause of the Fourteenth Amendment and (2) the justice’s failure to recuse was a structural error, not harmless error, that required vacating the decision even though his vote was not the deciding vote.  Williams v. Pennsylvania, 195 L. Ed. 2d 132 (2016).  See previous post here.


Judicial campaigns in federal courts

  • A former judicial candidate has filed a petition for a writ of certiorari presenting the issues: “(1) Whether the endorsement clause is facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution or unconstitutional as applied to endorsements of candidates that will not appear in the court for which election is sought; and (2) Whether the campaigning prohibition is facially unconstitutional under the First and Fourteenth Amendments to the United States Constitution or unconstitutional as applied to campaigning in support of ballot measures.”  The petition is from the en banc decision of the S. Court of Appeals for the 9th Circuit upholding clauses in the Arizona code of judicial conduct prohibiting judicial candidates from personally soliciting or accepting campaign contributions other than through a campaign committee the personal solicitation clause, prohibiting judicial candidates from making speeches on behalf of a political organization or another candidate for public office, publicly endorsing or opposing another candidate, soliciting funds for or paying an assessment to a political organization or candidate, making contributions to any candidate or political organization in excess of the amounts permitted by law, and actively taking part in any political campaign other than his or her own.  Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016).
  • On cross motions for summary judgement, a federal court permanently enjoined the Kentucky Judicial Conduct Commission from enforcing provisions in the code of judicial conduct (1) prohibiting a judicial candidate from making “pledges, promises or commitments” with respect to “issues;” (2) prohibiting a judicial candidate from making “misleading” statements; (3) prohibiting a judicial candidate from making speeches “for or against a political organization or candidate or publicly endors[ing] or oppos[ing] a candidate for public office;” (4) prohibiting a judicial candidate from paying an assessment or making a contribution to a political organization or candidate;” (5) prohibiting a judicial candidate from “campaign[ing] as a member of a political organization;” and (6) prohibiting a judge from engaging in “any other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.” However, the court held that, at least on their face, prohibitions on a judicial candidate making false statements, acting as a leader or holding an office in a political organization, or endorsing candidates were not unconstitutional.  Winter v. Wolnitzek, Opinion (U.S. District Court for the Eastern District of Kentucky May 12, 2016).


Same-sex marriage

There have been no new advisory opinions on the issue of judges’ obligation to preform same-sex marriages since 5 were issued in 2015 shortly after the U.S. Supreme Court held that the U.S. Constitution does not permit states to bar same-sex couples from marriage; those 5 opinions stated that a judge cannot refuse to perform same-sex marriages if the judge performs opposite-sex marriages.  See this previous postSee also Nebraska Advisory Opinion 2016-2 (a judge may not disqualify himself or herself from cases involving the adoption of children by a same-sex married couple based on strongly held religious beliefs about the couple’s sexual orientation); New York Advisory Opinion 2016-56 (unless a judge is required by law or rule to perform marriages, a judge may adopt a policy to decline to perform all weddings).

There are several pending judicial discipline cases involving same-sex marriages that may be resolved in 2016.

  • A judge has filed a petition objecting to the recommendation of the Wyoming Commission on Judicial Conduct and Ethics that she be removed for stating that she is unwilling to perform same-sex marriages.
  • That a judge instructed his staff to lie to same-sex couples and say he was not available to perform their wedding ceremonies is only one of the grounds on which the Oregon Commission on Judicial Fitness and Disability has recommended that the judge be removed. The other grounds are:  (1) at 2 community college soccer games for his son’s team, the judge tried to intimidate a referee by, for example, brandishing his judicial business card while threatening to complain to the referee’s employer; (2) the judge facilitated the handling of a firearm by BAS, a former Navy SEAL and convicted felon on active supervised probation in the veterans court over which the judge presided; (3) “enamored with BAS’s notoriety and his accomplishments in the military,” the judge had unsolicited, often unwanted, personal, and completely inappropriate out-of-court contacts with BAS; (4) either directly or under the guise of a non-profit organization, the judge obtained funds for a “Hall of Heroes” (military art hung in his courtroom and in the surrounding public areas, including a donated portrait of Hitler) in part by soliciting financial support from attorneys who appeared before him and collecting the money, often in the courthouse and once during a status conference in his chambers; (5) the judge made public statements in pre-hearing publicity to create the impression that the Commission proceeding was solely regarding his refusal to conduct same-sex marriages to deflect attention away from other misconduct; and (6) the judge engaged in a pattern of untruthfulness during the Commission proceedings.
  • The Alabama Judicial Inquiry Commission has filed a complaint against Chief Justice Roy Moore based on his administrative order directing or giving the appearance of directing probate judges not to obey an injunction entered by a federal court that prohibited probate judges from following the state court’s order upholding the state’s same-sex marriage ban.

Throwback Thursday

25 years ago this month:

  • The Arizona Supreme Court censured a former judge who had (1) used a telephone in his courtroom to obtain advice on cases from “friends of the court,” including arresting officers, and (2) refused to recuse himself from numerous cases in which one of the parties was a hospital on whose board of directors he sat. In re Anderson, 814 P.2d 773 (Arizona 1991).
  • Adopting the recommendation of the Judicial Performance Commission, the Mississippi Supreme Court removed a judge from office for (1) calling an officer with the Bureau of Narcotics an “s.o.b.,” knowing that the statement was likely to be published in the newspaper; (2) allowing clerks and other officials to dismiss tickets without an adjudication; (3) regularly failing to timely sign dockets; and (4) entering into plea negotiations by dismissing tickets in exchange for information on other crimes. Judicial Performance Commission v. Hopkins, 590 So. 2d 857 (Mississippi 1991).
  • The New Jersey Supreme Court reprimanded a judge who had attended a widely publicized picnic hosted by a convicted felon, his friend for 18 years, held 2 days before the sentence was to have begun and attended by approximately 150 to 200 people. In the Matter of Blackman, 591 A.2d 1339 (New Jersey 1991).
  • Accepting a joint recommendation, the Ohio Supreme Court reprimanded a former part-time judge who, for 25 years, had used the courtroom as his private legal office, whose court lacked a formal docket for judgement entries, and who had made no judgement entries in criminal cases unless the prosecutor prepared one. State Bar Association v. Dye, 572 N.E.2d 666 (Ohio 1991).