More Facebook fails and advice

Finding that “the extreme facts” of the case rebutted “the presumption of judicial impartiality” and established a due process violation, the Wisconsin Supreme Court held that a serious risk of actual bias was created in a custody dispute when, while his decision was pending following a contested hearing, the trial judge accepted a Facebook “friend request” from the mother; she interacted with him, including “liking,” “loving,” or commenting on at least 20 of his Facebook posts; and she “shared” and “liked” several third-party posts related to domestic violence, which was an issue in the case.  In re Paternity of B.J.M. (Wisconsin Supreme Court June 16, 2020).  The Court affirmed the decision of the court of appeals reversing the trial judge’s denial of a motion for reconsideration of his decision in the mother’s favor and remanding the case with directions that it proceed before a different judge.

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A judge who failed to immediately recuse from all cases involving a female defendant with whom he was communicating on Facebook Messenger and by telephone, in addition to other misconduct, resigned and agreed to a permanent bar from judicial office pursuant to an agreement with the Arkansas Judicial Discipline & Disability Commission.  Letter of resignation and prohibition from office (Throesch) (Arkansas Judicial Discipline & Disability Commission May 1, 2020).

On April 15, 2018, the judge began communicating with a woman “on a personal level” by Facebook Messenger and telephone, progressing “from friendly to flirty.”  On June 4, the woman told the judge that she was facing charges in the district court on which he sat and a potential probation revocation in the circuit court.  The judge did not immediately recuse himself from her cases and continued to communicate with her.  On July 11, when the woman’s case was called in the judge’s courtroom, she entered a plea.  The judge then recused himself, and the case was set for a conflict docket to be heard by a special judge.

After he recused himself, the judge sent the following messages to her on Facebook Messenger, indicating that he would help with her charges:

  • “Are you done with everything except what u [sic] have in my court?”
  • “I am going to look at those [sic] traffic stuff and see what we can do. Your [sic] really trying and I hate to see u [sic] buried in fines.  I would do that for anyone who’s trying.”
  • “Well I want u [sic] to get everything behind u [sic]. We need to talk so I k ow hoe [sic] to help u [sic].”
  • “Message me first thing in the morning and I will call. Make sure you don’t tell anyone ur [sic] talking to me for lots of reasons.”

On July 27, the woman sent explicit photographs to the judge’s cell phone; in texts, the judge “requested additional photographs of the same nature.”

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A Texas judge has asked for review of the admonition she received for congratulating attorneys on winning jury verdicts in her court and lauding their results and professional backgrounds in 8 posts on her Facebook page, which identifies her as a judge and which she uses to disseminate information about the court to the public.  Public Admonition of Gonzalez (Texas State Commission on Judicial Conduct March 18, 2020).

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Effective July 2020, new commentary to Canon 2B of the California code of judicial ethics explains:

If a judge posts on social networking sites such as Facebook or crowdsourced sites such as Yelp or TripAdvisor, the judge may not lend the prestige of judicial office to advance the pecuniary or personal interests of the judge or others.  For example, a judge may not comment on, recommend, or criticize businesses, products, or services on such sites if it is reasonably likely that the judge can be identified as a judge.

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Based on her admissions, the Montana Supreme Court suspended a judge for 30 days without pay for, in addition to other misconduct, (1) failing to remove from her Facebook page endorsements of her campaign from the county Republican Party, a Republican candidate for the state house of representatives, and a Libertarian candidate for the U.S. House, and (2) publicly endorsing on her personal Facebook page the Republican candidate for county commissioner and the Republican incumbent candidate for county attorney.  Inquiry Concerning Harada, 461 P.3d 869 (Montana 2020).  Montana judges are chosen in non-partisan elections, and the Montana code of judicial conduct prohibits judges and judicial candidates from publicly endorsing a partisan candidate for a non-judicial public office and from using endorsements from partisan political organizations, partisan office-holders, or partisan candidates for non-judicial public office.

The judge admitted the violations but noted that she had established privacy settings on her personal profile to keep Facebook posts expressing her personal views from becoming public, relying on American Bar Association Opinion 462 (2013).  The judge acknowledged that the Judicial Standards Commission’s requirements were “more stringent” than the ABA’s guidance.  The ABA opinion states:  “Judges may privately express their views on judicial or other candidates for political office, but must take appropriate steps to ensure that their views do not become public,” by managing privacy settings on social media sites to restrict “the circle of those having access to the judge’s [social media] page,” to limit the ability of some connections to see others, to limit who can see the judge’s contact list, or to block a connection entirely.

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Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for, during her election campaign, liking or replying to crude comments on Facebook by her supporters about her election opponent, in addition to other misconduct.  In the Matter of VanWoeart, Determination (New York State Commission on Judicial Conduct March 31, 2020).  Screenshots of the Facebook posts are included with the agreed statement of facts.

During her 2018 campaign for office, the judge created and administered a Facebook group called “Friends to Elect Michelle VanWoeart Judge for the Town of Princetown.”  The incumbent, Judge Norm Miller, was her opponent in both the primary and general elections.

After the primary, another member of the Friends to Elect Michelle VanWoeart group posted:  “Michelle VanWoeart you won???  YESSSSSSSS congratulations!!!!!!  Time to take out the trash!!  #amen #outwiththetrash #sorrynotsorry,” which was a reference to then-judge Miller.  The judge clicked the “like” button on that post.

Another member posted:  “Great job, Princetown!!  BUT, Dirt Bag Norm will try to find some obscure line to keep going ….. don’t let your guard down on this SH*T HE*D.”  The judge replied, “Thank you.”

The judge published a post on the Friends group page stating, “Yup.  Millers [sic] flyers sent out packed full of lies.”  The judge clicked the “like” button on a comment another member posted:  “I’d like to shove the flyers up Norm’s butt!”

After the general election, another member of the group page posted a “gif” image of a man throwing a bag of trash down a driveway and into a trash can, with the statement, “I knew you had this!  Congratulations!!  The trash has been taken out!”  The judge clicked the “like” button on the post.

The judge stipulated that her responses to the posts had violated the provision in the New York code of judicial conduct requiring that a judicial candidate “maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary.”

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The Florida judicial ethics committee issued 2 advisory opinions on the use of social media in judicial election campaigns.

  • A judicial candidate’s campaign committee may maintain a Facebook page and post on the candidate’s behalf communications written in the first person about, for example, campaign events, candidate appearances, public speeches, and the candidate’s qualifications, provided the first-person communications do not seek financial support or public statements of support. Florida Advisory Opinion 2020-10.
  • A judicial campaign website or social media page may include a video of the candidate personally describing their experience, qualifications, and similar subjects; an invitation to potential followers to watch the campaign website for updates and to submit questions to the candidate; and personal requests for support in both English and Spanish, as long as the candidate does not ask for donations and the candidate’s answers to questions do not constitute promises of future conduct or other prohibited statements. Florida Advisory Opinion 2020-13.

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In an advisory opinion, the Michigan judicial ethics committee stated that judicial candidates may advertise their own campaigns on their “personal or professional social media accounts” as long as it is the candidate’s committee, not the candidate, that solicits funds.  Michigan Advisory Opinion JI-147 (2019). In general, the opinion stated that judges may have social media accounts as long as their activity on those platforms does not violate the code of judicial conduct.  The committee emphasized that the format does not change a judge’s ethical obligations “even though social media allows a greater audience with a single click” but noted that “this creates potential issues for judicial officers . . . who post matters without thinking through the matter thoroughly.”

In a separate opinion, the Michigan committee advised that judges may show their support for charitable organizations on social media.  Michigan Advisory Opinion JI-148 (2029).  Specifically, the committee advised that “judges may allow their names and photographs to be shown on the website or in the social media of a charitable organization if the use does not:  (1) appear to be the judge’s personal solicitation for funds; (2) coerce participation from others; or (3) compromise the integrity of the court.”  The opinion also stated that judges may include in a social media profile their membership on charitable boards and allow those positions to be listed on the organizations’ websites and social media “as one among many board members.”  Such references are akin to “the judge’s curriculum vitae for public speaking engagements” and “a digital version of the old-school concept of letterhead.”

However, the committee advised that a judge should not post about making a specific pledge or donation to a charitable organization because such a post “is likely to be perceived” as the judge’s personal suggestion that others should “follow suit.”  Further, to prevent the implication that the prestige of office is being used to benefit the organization, the opinion stated, an organization should not publicly disclose a financial contribution by a judge in a different manner than a contribution by any other individual.

The opinion also emphasized that, if a judge has reservations about an organization, the judge should avoid any association, including through social media and other digital media.  Specifically, the committee noted the prohibition on a judge associating with an organization that “discriminate[s], or appear[s] to discriminate, on the basis of race, gender, or other protected personal characteristic.”

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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 on the Center for Judicial Ethics website.

 

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