In May 2019, the New York State Commission on Judicial Conduct filed a complaint alleging that a judge had posted on “his Facebook account a picture of a noose with the annotation, ‘IF WE WANT TO MAKE AMERICA GREAT AGAIN WE WILL HAVE TO MAKE EVIL PEOPLE FEAR PUNISHMENT AGAIN.’” The post was viewable by the public. The judge’s Facebook account was under his name, and he had approximately 121 Facebook friends.
The judge and the Commission stipulated that the image and statement “conveyed and/or appeared to convey racial and/or political bias” and, therefore, that the judge had “failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The judge resigned, agreed not to seek or accept judicial office in the future, and waived confidentiality to the limited extent that the stipulation can become public; the Commission concluded the proceeding. In the Matter of Canning, Decision and Order (New York State Commission on Judicial Conduct September 12, 2019). The post was attached as an exhibit to the complaint, which is attached to the stipulation.
* * *
The Chief Justice of the Kentucky Supreme Court disqualified a trial judge from a lawsuit brought by the state Attorney General against the state Secretary of Labor because the judge had “liked” a Facebook post supporting the Attorney General’s campaign for governor. In re Commonwealth of Kentucky, ex rel. Beshear and Jefferson County Teachers Association v. Dickerson (Kentucky Supreme Court September 27, 2019).
The judge was presiding over a suit brought by Andy Beshear the state Attorney General and a county teachers association seeking an injunction against subpoenas the Secretary of the Kentucky Labor Cabinet had issued to several school districts for information regarding teachers who had participated in “sick-outs” during the 2018 and 2019 legislative sessions.
Beshear is also the Democratic nominee for governor, opposing incumbent Governor Matt Bevin. The judge liked a post in which a state representative said that he was “honored to sign a pledge card to vote for the Beshear/Coleman ticket in November.” The Labor Secretary filed a motion to disqualify the judge based on that “like.” The judge denied the motion; the Labor Secretary then invoked a Kentucky procedure that allows the Chief Justice to immediately review and decide whether grounds exist to appoint a different judge for the case.
The Chief Justice agreed with the Labor Secretary’s argument that “Governor Bevin is effectively a party to the lawsuit because ‘the Attorney General brought this lawsuit against Governor Bevin’s administration, and the Attorney General frequently promotes the lawsuit as part of his campaign for governor.’”
Noting several reprimands for similar conduct by the Judicial Conduct Commission, the Chief Justice concluded that the judge’s “liking” of a Facebook post supporting Beshear’s campaign was a per se violation of the code of judicial conduct. The Chief Justice also stated that the fact that the judge “also ‘liked’ posts supportive of Governor Bevin’s campaign or of other Democratic and Republican candidates does not . . . right the wrong. In fact, those ‘likes’ constitute additional violations . . . .” The Chief Justice acknowledged that the Labor Secretary did not allege and there was nothing in the record to indicate that the judge had explicitly endorsed Beshear’s campaign or that he was biased against Governor Bevin or the Labor Secretary. The Chief Justice also expressed his conviction that the judge “would preside over this case, as he has in so many other cases, in a completely fair, neutral, and unbiased manner.” But the order emphasized that the standard for disqualification does not require actual proof of bias but simply circumstances that raise reasonable questions about the judge’s impartiality. Thus, the Chief Justice held: Given that the judge’s “‘like’ may reasonably be perceived as a public endorsement of a candidate’s campaign, that the candidate is a party in this case, and that this case involves a central issue in that candidate’s campaign, this is one such circumstance.”
The Chief Justice added:
This case should serve as a cautionary tale to all Kentucky judges who use social media. As the Judicial Ethics Commission wisely admonished in its 2010 opinion, these services are “fraught with peril” for judges and should be used with extreme caution. While judges are not ethically prohibited from using social media, their use is subject to the Code of Judicial Conduct in the same manner as other extrajudicial activities. Judges should review their social-media presence to ensure it does not violate the Code of Judicial Conduct and should act prudently when “liking” pages, posts, or tweets or otherwise interacting with other users on social media.
* * *
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 Reporter. Part 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 on the Center for Judicial Ethics web-site.