More Facebook fails

Based on stipulations and agreements, the Washington State Commission on Judicial Conduct recently admonished 2 judicial officers for Facebook posts soliciting contributions to non-profit organizations.  (A public admonishment is “the least severe disciplinary action available” to the Washington Commission.)

In both orders, the Commission emphasized that the “prohibition against judicial solicitation of money does not reflect on the worthiness or virtue of the charity or cause in question” and “a near blanket prohibition upon fundraising by judicial officers is necessary as it would be impossible to exercise principled distinctions based on the nature of the charity involved, and it would be improper to have a government agency such as a conduct commission make such value choices.”  Noting that most judges “are quite conscious that they may not solicit funds for themselves or others in face-to-face encounters,” the Commission stated that “there is not a meaningful or workable distinction between in-person and written or electronic solicitations (although solicitations could be more or less egregious, depending on the context).”  The Commission noted that “social media is a relatively new form of communication,” “the law tends to lag behind technology,” and “[t]here has not yet been a Commission opinion addressing social media, so need for guidance is greater than in other areas.”

Thus, the Commission publicly admonished a supreme court justice for 2 posts soliciting support for non-profit organizations.  In re Yu, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).

Since 2013, the justice has maintained a Facebook page that, “[i]n Facebook parlance,” is a “government official” page that anyone can access and that no one can “friend.”  She does not solicit “followers” for the page.  The page identifies the justice as a member of the judiciary.  The justice is actively engaged in the community, she uses the page to educate viewers about matters related to the judicial branch, and her posts are intended to make the court and judicial officers more accessible and transparent to the public.

On April 22, 2018, the justice posted on her Facebook page:

Join Lifelong for Dining Out For Life on April 26!

On Thursday, April 26, raise your fork for Dining Out For Life!  Join Lifelong at one of 90 restaurants in the Greater Seattle Area who are set to donate 30-50% of their proceeds to vital programs that support people facing serious illness and poverty in our community.

https://www.diningdutforlife.com/seattle

Lifelong is a non-profit organization that provides recovery assistance for persons suffering from drug abuse and addiction.

On April 28, the justice posted on her Facebook page about Real Change, a weekly newspaper that employs homeless and previously homeless people as vendors.

I know many of you wonder what you might do about homelessness.  There are a myriad of policy issues that deserve your attention.  I can’t advise you on any of them.  But, here is one concrete thing you can do each week:  buy the “Real Change” newspaper from a vendor that you see on the street comers in Seattle.  They buy the paper for .60 and sell it for $2.00.  It is a business for each vendor.  The paper has interesting articles on housing, poverty, and other social issues.  If you don’t have cash, most will take payment with Venmo.  But how hard can it be to withdraw some cash each month, stuff it in your pocket, and just commit to buying the paper each week?  Support these folks who are just trying hard to earn some money in an honest way.

Screenshots of the 2 posts are included in the Commission order.

The Commission explained:

While these Facebook posts present no articulable element of coercion, the Commission finds that it is still an abuse of the prestige of judicial office.  The prestige is appropriately reserved for the service of the office itself, and not to be used for the individual benefit of the judge or others, regardless how generally good the cause may be.

Given the nature of her Facebook communications, the justice did not believe the posts rose to the level of a solicitation, but she acknowledged that the Commission is the body charged with interpreting facts and enforcing the code and deferred to its determination that the posts violated the code.  Recognizing that greater guidance is needed on the increasingly prevalent use of social media, the justice believes the stipulation will provide such guidance and raise awareness of the risks of sharing information on social media that could be construed as solicitations or endorsements.

The Commission also publicly admonished a judge for a post on his Facebook page encouraging people to attend a charity fund-raiser.  In re Svaren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).  The judge had attended a “pancake feed” held to benefit the families of people killed during a mass shooting at the Cascade Mall in September 2016.  On his Facebook page, which is titled “Judge David Svaren,” the judge posted photos of signs at the event and text that read:

The Burlington Fire Department Pancake Feed is happening now and 100% of the proceeds go to benefit the families of the victims of the recent tragedy at Cascade Mall.  Please consider attending, it runs until noon today.

After a few weeks, the judge removed the post after reviewing it and realizing it may violate the code.  The judge was unable to recall or explain why he had not recognized at the time he made it that the post would violate the code.

In mitigation, the Commission noted, for example, that the judge has a long history of productive service as a judicial officer, had no prior discipline, cooperated with the Commission’s proceeding, and “recognized the problematic nature of the conduct, and removed the post even prior to contact from the Commission.”  However, the Commission concluded that its “failure to act on a case involving a Code violation on social media, even one with strong mitigators, could wrongly signal to judges and the public that online Code violations are somehow exempt from enforcement.”

See also In re Prewitt, Order (Missouri Supreme Court November 24, 2015) (public reprimand for, in addition to other misconduct, numerous posts on Facebook about charitable fund-raising events that noted a judge’s support for the organizations and encouraged others to contribute); In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016) (6-month suspension without pay for Facebook posts about a fund-raiser for a church, in addition to other misconduct); Private Warning and Order of Additional Education of a Municipal Court Judge (Texas State Commission on Judicial Conduct August 23, 2012) (private warning for entries on a Facebook page that indicated to the public that the judge was an organizer for a charitable fund-raiser); Pennsylvania Judicial Conduct Board Annual Report (2017) (private letter of caution to judge who re-posted a photographic advertisement of a fund-raising event for a charitable institution); Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018) (public admonishment for organizing a school supply drive using court staff and advertising it in Facebook posts, soliciting donations to an individual in a Facebook post, and advertising his donation of a rifle to a charitable organization’s raffle in a Facebook post).

* * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available here.

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