Judicial responsibility:  Reasonable measures, confrontation, and supervision

One of the features of the high ethical standards to which judges are held is that sometimes judges get in trouble for something someone else did.

For example, a Florida judge was sanctioned for submitting financial disclosure reports for 2016 and 2017 that failed to disclose 3 free trips she had taken with her husband — even though she had not known the trips were free and even though the reports had been completed by her husband, who managed their family finances.  The judge and her husband had received free accommodations from a hotel chain, allegedly as part of an illegal compensation scheme for her husband’s assistance with permitting problems while he was director of the Miami Beach Building Department.  The judge was held responsible for the inaccurate reports because she failed to take reasonable steps to stay apprised of her financial circumstances, failed to ask who paid for the trips, and failed to verify the accuracy of the reports despite certifying to their veracity when she signed them.  Pursuant to a stipulation, she was suspended for 90 days without pay, fined $5,000, and publicly reprimanded.  Ortiz (Florida Supreme Court January 29, 2019).  (The Court had rejected 2 prior stipulations that imposed less severe sanctions.)

A New Mexico judge was sanctioned, in part, for receiving at his court e-mail address numerous e-mails from his family members, particularly his cousin, that were offensive, degrading, pornographic, racist, and sexist.  The judge testified that, after he received the first inappropriate e-mail, he told his cousin, “Cuz, you got to stop this,” and that he told family members over and over again to stop sending e-mails to his judicial e-mail address, but they continued to use that address.  In its findings, the Judicial Standards Commission noted that the judicial information division had instructed the judge how he could put an end to the e-mails, but he had not followed their instructions.

The Commission stated:

The Respondent maintained his innocence throughout the entirety of the inquiry by stating that he only received the e-mails and should not be punished for merely being a recipient.  His position is that his relatives sent him completely inappropriate sexual, derogatory, racist, and sexist e-mails to his judicial e-mail, that he provided to them, that he told them to quit and they didn’t, so it is their fault even though Respondent could have stopped them by changing his judicial e-mail but he didn’t want them to feel like they were the bad guy.

The Commission concluded:

It is far beyond negligent, and not the result of mere carelessness or lack of computer skills, that Respondent was unwilling to stop his relatives from sending him offensive e-mails of a sexual, racist, sexist, derogatory nature over a period of many years. . . .  The Respondent’s behavior in not confronting his family members and stopping the e-mails is offensive and shows that the Judge was indifferent to the impact of his actions on his reputation and integrity and the impact on the reputation and integrity of the judiciary as a whole.

Adopting the Commission’s findings, the New Mexico Supreme Court ordered the now-former judge never to hold judicial office in the state.  In the Matter of Castaneda, Order (New Mexico Supreme Court February 12, 2018).

A California judge was sanctioned for his testimonial published on a business’s web-site identifying the author as a superior court judge and including a photograph of the judge in his judicial robe.  The judge did not authorize the use of his title or provide the photograph or authorize its use or even know the photograph would be used.  However, neither did he review the final text of the testimonial or instruct the business not to use his judicial title and photograph in judicial robes or even ask how his comments would be used or where they would be published.

The judge had retained the Redd Group to survey voters about a local attorney’s judicial campaign.  After the election, the judge called David Cooper, an employee of the Redd Group, to compliment him on the survey results.  Cooper asked if he could use the judge’s comments as a testimonial for the Redd Group.  The judge agreed.  The testimonial, published on the Redd Group web-site, stated:

I was helping a fellow attorney run for county judge.  Our mail went out ahead of schedule and The Redd Group accommodated for our poll to be done accordingly with many more respondents than were promised.  We got the detailed results in less than 24 hours.  I recommend the Redd Group for all your polling needs.  Excellent work! – Steven C. Bailey

The California Commission on Judicial Performance publicly censured the now-former judge and barred him from seeking or holding judicial office for this and other misconduct (see also  discussion below).  Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

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Several judges have been sanctioned for content on their Facebook pages posted by others to whom they had delegated the task without sufficient oversight.  For example, the Texas State Commission on Judicial Conduct admonished a judge for Facebook posts advertising a school supply drive, soliciting donations for an individual, and advertising his donation of a rifle to a charitable raffle — even though a member of his judicial staff handled his Facebook page, many posts were made without his prior authorization, and he was often unaware of what appears on his page.  Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018).  Similarly, the Texas Commission reprimanded a judge for campaign advertisements for other candidates posted on his Facebook page, in addition to other misconduct — even though he had not authorized the posts and did not know about them until he received the Commission’s inquiry.  Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).

Unauthorized and inappropriate posts have also been a problem on judicial campaign Facebook pages.

For example, the Florida Supreme Court removed a judge for criticism of her campaign opponent for representing criminal defendants on a Facebook page that was created by an electioneering communications organization formed by her campaign consultant.  Inquiry Concerning Santino, 257 So.3d 25 (Florida 2018).  The Court held that the judge’s actions “—individually and through her campaign, for which she was ultimately responsible—unquestionably eroded public confidence in the judiciary.”  The Court emphasized the finding of the hearing panel that nothing in the code of judicial conduct permitted, “Santino to delegate to her campaign manager the responsibility for written materials created or distributed by the campaign.”

The Nevada Commission on Judicial Discipline reprimanded a former judge for a photoshopped picture of herself and an actor that her campaign manager had posted on her campaign Facebook page, which misled the public that “the Rock” had endorsed her campaign, and for her subsequent comment on the post:  “I’m ‘almost’ taller than him.  Almost.”  In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018).  The Commission found that the judge had not taken reasonable measures to ensure that her campaign representatives complied with the code of judicial conduct, noting her contract with her campaign manager did not contain any restrictions on the posting of social media materials, such as obtaining prior approval from the judge, that the judge did not discuss with her campaign representatives the prohibitions in the code, and that the judge failed to properly supervise her campaign representatives.  The Commission took the “opportunity to remind judicial candidates that campaign-related social media platforms, such as Facebook, maintained by a campaign committee or others, do not insulate them from the strictures of the Code.”

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The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for publicly disclosing his candidacy for sheriff without resigning and initially refusing to disclose to the Commission the identity of the individual who took his campaign Facebook page live.  Barth, Order (Arizona Commission on Judicial Conduct February 14, 2019).

The California Commission on Judicial Performance publicly censured a now-former judge and barred him from seeking or holding judicial office for permitting a campaign coordinator to use his judicial title on the Facebook page for his campaign for attorney general and in posts on her law firm’s Facebook page promoting his candidacy, in addition to other misconduct (see also discussion above).  Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

In 2016, Martha Romero, the judge’s Southern California Campaign Coordinator, created the “Judge Steven Bailey” Facebook page for the judge’s campaign for state attorney general.  (Judges in California are allowed to run for another office if they take a leave of absence; the judge’s failure to take a leave of absence was another grounds for his discipline.)  In November and December 2016, several posts on the page promoting his campaign referred to the judge by his judicial title.

Rejecting the judge’s argument that he cannot restrict the First Amendment rights of others, the Commission agreed with the masters’ finding that “the judge had an obligation to take some action to prevent the improper use of his title in connection with campaign communications and events, even if it was just to instruct Romero to ensure that the Facebook page did not refer to his judicial title and position” because she was a coordinator for and “very involved” in his campaign.  The Commission also agreed that, because the standard for prejudicial conduct assumes that an objective observer is familiar with the facts, “the judge’s failure to supervise a campaign staffer and take any measures to guard against impermissible use of his judicial title would be considered prejudicial to public esteem for the judiciary in the eyes of an objective observer,” rejecting the judge’s argument that “the public would have no way of knowing if he asked Romero not to use his title.”

Romero also maintained a Facebook page for her law firm, the Romero Law Firm.  In a post on that page, Romero included photos of the judge and wrote, “My friend Judge Steven Bailey is running for California Attorney General 2018,  He is not a politician.  Please Help us!” and “Judge Steven Bailey.  Candidate for Attorney General 2018.  He will be the next Attorney General!!!  Please repost.  We need to win this!!”

The Commission acknowledged that the judge “could not force Romero to edit her posts about him or to avoid using his judicial title in future posts” but stated that he could “have asked her to modify her posts to be in compliance with his ethical obligations.”  Rejecting the judge’s argument, the Commission concluded that “Romero’s First Amendment rights are not implicated by requiring the judge to ask her to comply with a request to remove the Facebook posts.”

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