Judges got in trouble for injudicious, off-the-bench comments before recent revolutions in on-line communications, but the greater temptation to vent posed by the new-fangled social media and the greater potential for venting to “go viral” were illustrated in several cases in 2016.
Dropping his First Amendment defense to charges brought by the Kentucky Judicial Conduct Commission, a judge agreed to a 90-day suspension without pay for, in addition to other misconduct, publishing comments on Facebook that accused the county commonwealth’s attorney of advocating for all-white jury panels, that criticized the public defender and criminal defense attorneys for not publicly supporting him in his dispute with the commonwealth’s attorney, and that discussed the motion to certify the law filed on behalf of the commonwealth’s attorney while the case was pending before the Kentucky Supreme Court. In re Stevens, Agreed order of suspension (Kentucky Judicial Conduct Commission August 8, 2016). For example, the judge had posted, “History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming he is entitled to an all-white jury panel. No matter the outcome, he will live in infamy.” The judge also made numerous similar comments during a presentation to the Louisville Bar Association. For a longer summary of the case, see the previous post here. Later in 2016, reviewing Judge Stevens’s decision, the Kentucky Supreme Court held that he did not have the discretion to dismiss a randomly selected jury panel that, despite its unrepresentative appearance, was drawn from a jury pool that reflected a fair cross section of the community.
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Accepting a stipulation and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for making improper public comments on her Facebook account about a matter pending in another court and failing to delete related public comments by her court clerk. In the Matter of Whitmarsh, Determination (New York State Commission on Judicial Conduct December 28, 2016).
The judge sits on the Morristown Town Court. On March 3, 2016, a felony complaint was filed in the Canton Town Court alleging David VanArnam, who was running for the Morristown town council, had filed nominating petitions in which he falsely swore that he personally witnessed the signatures on the petitions. On March 13, in a post on her Facebook account, the judge commented that she felt “disgust for a select few,” that VanArnam had been charged with a felony rather than a misdemeanor because of a “personal vendetta,” that the investigation was the product of “CORRUPTION” caused by “personal friends calling in personal favors,” and that VanArnam had “[a]bsolutely” no criminal intent. The judge also stated, “When the town board attempted to remove a Judge position – I stood up for my Co-Judge. When there is a charge, I feel is an abuse of the Penal Law – I WILL stand up for DAVID VANARNAM” [sic] [emphasis in original]. The judge also posted a web-site link to a news article reporting when the charge against VanArnam had been dismissed.
The judge had intended her post to be seen only by her 352 Facebook “friends.” However, a few years earlier, she had set her Facebook privacy settings to “public” for an unrelated reason, and, at the time of her posting about the VanArnam case, her privacy settings were still set to public although she did not realize that. The judge’s post about the VanArnam case was shared at least 90 times by other Facebook users. A local news outlet posted an article on its web-site reporting on the judge’s Facebook comments and re-printed her post.
The Morristown Town Court Clerk posted on the judge’s Facebook page, “Thank you Judge Lisa! You hit the nail on the head.” The judge did not delete the court clerk’s comment, which was viewable by the public.
In 2 comments posted on the judge’s Facebook page, the judge’s husband questioned whether the complainant in the VanArnam case had a “close personal relationship” with “our prosecutor” and called the matter a “real ‘Rain Wreck’” referring to Mary Rain, the county District Attorney. The judge clicked the “like” button next to some of the comments to her post, including a comment stating that the charges against VanArnam were “an abuse of our legal system” and “uncalled for;” a comment criticizing the district attorney; and another comment by her husband, stating, “This is what’s wrong with our justice system.”
On March 28, the judge removed all posts concerning the VanArnam matter from her Facebook page after receiving a letter from District Attorney Rain questioning the propriety of her comments and requesting her recusal from all matters involving the District Attorney’s office. Soon after receiving that letter, the judge granted that request.
The Commission stated:
Comments posted on Facebook are clearly public, regardless of whether they are intended to be viewable by anyone with an internet connection or by a more limited audience of the user’s Face book “friends.” Even such a “limited” audience, we note, can be substantial, and to the extent that such postings can be captured or shared by others who have the ability to see them, they cannot be viewed as private in any meaningful sense. . . .
Regardless of respondent’s intent, her comments — and her “likes” of comments criticizing the District Attorney that were posted in response to her message — conveyed not only respondent’s personal view that the prosecution was unjust, but the appearance that she was impugning the integrity of the prosecution and endorsing others’ criticism of the District Attorney’s office and the District Attorney personally. Her statements, which were viewable online for 15 days and were reported by the media, were inconsistent with her duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” . . . and resulted in her recusal from all matters involving the District Attorney’s office. Moreover, by referring to her judicial position in the same post (stating that she had once “stood up for my Co-Judge”), respondent lent her judicial prestige to her comments, which violated the prohibition against using the prestige of judicial office to advance private interests . . . .
Noting that a judge is required to “‘require similar abstention [from public comment about pending proceedings] on the part of court personnel subject to the judge’s direction and control,” the Commission stated that the “comments posted by respondent’s court clerk on respondent’s Facebook page were also objectionable.”
The Commission took the “opportunity to remind judges that the Rules Governing Judicial Conduct apply in cyberspace as well as to more traditional forms of communications and that in using technology, every judge must consider how such activity may impact the judge’s ethical responsibilities. . . . While the ease of electronic communication may encourage informality, it can also, as we are frequently reminded, foster an illusory sense of privacy and enable too-hasty communications that, once posted, are surprisingly permanent.” The Commission noted that the Advisory Committee on Judicial Ethics has cautioned judges about the public nature and potential perils of social networks, advised that judges who use such forums must exercise “an appropriate level of prudence, discretion and decorum” to ensure that their conduct is consistent with their ethical responsibilities, and said it is essential that judges who use such forums “stay abreast of new features of and changes to any social networks they use.” The Commission noted “these are excellent guidelines for any judge who joins and uses an online social network. At a minimum, judges who do so must exercise caution and common sense in order to avoid ethical missteps.”
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Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 6 months without pay for his Facebook posts about a case, political matters, and a fund-raiser for a local church. In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016). The judge’s Facebook account identified him as the probate court judge for Oconee County, and the account and all of his posts were accessible to all members of Facebook.
Z.H.’s parents had filed a wrongful death suit on behalf of his estate against the police department. The case was settled for $2,150,000. The settlement received extensive press coverage.
While the matter was before the probate court for administration of the estate, the judge expressed his opinion about the settlement on Facebook, posting: “In the end it’s all about the money. Always. Unfortunately, I see it EVERYDAY.” The judge later added: “Once ck is in hand, they’ll disappear.”
The judge also made extensive political posts on Facebook, including ones in which he appeared to endorse a presidential candidate. He also engaged in fund-raising for a local church in a post.
See also In the Matter of Archer, Final judgment (Alabama Court of the Judiciary August 8, 2016) (6-month suspension for sexually explicit Facebook relationship with a woman the judge met in his official capacity); Commission on Judicial Performance v. Clinkscales, 191 So. 3d 1211 (Mississippi 2016) (public reprimand of a former judge for endorsing a political candidate on social media, in addition to other misconduct); Public Reprimand of Uresti and Order of Additional Education (Texas State Commission on Judicial Conduct October 11, 2016) (public reprimand for Facebook posts that promoted the financial interests of a relative and a former judge, in addition to other misconduct).
See “social media and judicial ethics” in the most-requested Center resources section of the Center web-site for a comprehensive list of discipline cases, advisory opinions, and other judicial ethics and discipline materials.
Other posts on the top judicial ethics and discipline stories of 2016