Social media direction and control

In a recent advisory opinion, the California Supreme Court Committee on Judicial Ethics Opinions stated that, when an appellate justice learns that a staff member has posted a comment on social media that violates the canons, the justice should immediately take steps to remedy the ethical violation.  California Oral Advice Summary 2020-37.  It explained that, “at a minimum, the justice should instruct the staff member to take all reasonable steps to delete or to have removed from public view any improper comment that violates the canons, and then follow up with the staff member to ensure that they have done so.”  Further, the committee stated that, if the justice learns that “an improper comment has already been viewed by the public, republished or otherwise disseminated, then depending on the circumstances, the justice may need to instruct the staff member to correct or repudiate the comment on social media, particularly if the comment is demeaning or offensive, or otherwise undermines the dignity of the court.”

The opinion noted that “appellate court staff can be expected to post their thoughts, comments and opinions online” like anyone in the general public who participates in social media to express themselves and stated that “staff are not prohibited from posting comments on social media about their employment or about the courts in general.”  However, the committee warned that “the canons constrain the content of any such comments and obligate justices to require staff compliance with the canons.”  The committee added that appropriate training would help court staff understand their “vital role” in maintaining public confidence in the integrity of the judicial system and “the importance of maintaining confidentiality and impartiality and of upholding the dignity of the court in their postings to social media.”

The inquiry to the California committee was from an appellate justice so the opinion addresses the obligations of appellate justices, but the code provisions it interpreted apply to “anyone who is an officer of the state judicial system.”  The committee based the obligation of justices to “exercise reasonable direction and control” over staff on several provisions in the California code of judicial ethics.

  • Canon 3B(9) states that judge shall require staff and court personnel, like judges themselves, “to abstain from “any public comment about a pending or impending proceeding in any court” and “any nonpublic comment that might substantially interfere with a fair trial or hearing.”
  • Canon 3C(3) states that judges shall require staff and court personnel to, like judges themselves,  “observe appropriate standards of conduct and to refrain from (a) manifesting bias, prejudice, or harassment based upon race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, or (b) sexual harassment in the performance of their official duties.”

Rule 2.10(C) of the American Bar Association Model Code of Judicial Conduct is similar to California Canon 3B(9).  Rule 2.3(B) of the model code states that a judge “shall not permit” court staff, court officials, or others subject to the judge’s direction and control to, in the performance of their duties, “by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation.”

See also New Mexico Advisory Opinion Concerning Social Media (2016) (“a judge’s supervisory duties include ensuring that court staff do not participate in social networking that would undermine the judge’s responsibilities.  Examples of such activity include engaging in social media exchanges that either involve ex parte communications or statements concerning pending or impending cases”).

Interpreting the codes of conduct for court staff adopted in their jurisdictions, the Arizona Supreme Court Judicial Ethics Advisory Committee and the U.S. Judicial Conference Committee on Code of Conduct have issued extensive advisory opinions on judicial employees’ use of social media.  See Arizona Advisory Opinion 2014-1; U.S. Advisory Opinion 112 (2014).

Throwback Thursday

5 years ago this month:

  • Adopting masters’ findings of fact, the California Commission on Judicial Performance removed a judge from office for authoring and showing to his courtroom clerk a “crude and vile” anonymous letter accusing her of infidelity; engaging in a course of conduct over 2 months to convince her to become involved in a closer personal relationship, including giving her money and other gifts; accusing her of extortion to ensure her silence; and providing legal advice to her son.  Inquiry Concerning Saucedo, Decision and order (California Commission on Judicial Performance December 1, 2015).
  • The Florida Supreme Court removed a judge from office for threatening to commit violence against an assistant public defender, engaging in a physical altercation with the public defender, and resuming his docket while defendants were without counsel.  Inquiry Concerning Murphy, 181 So. 3d 1169 (Florida 2015).
  • Based on the judge’s agreement, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for his treatment of an investigator for the attorney general’s office during a hearing.  In re Easterling, Order (Kentucky Judicial Conduct Commission December 18, 2015).
  • With the judge’s consent, the Maryland Commission on Judicial Disabilities released a private reprimand that states that investigative counsel investigated allegations that the judge had received commissions as a real estate agent involving property included in estates being supervised by the orphans’ court over which she presided.  In the Matter of Phelps, Private reprimand (Maryland Commission on Judicial Disabilities November 6, 2015) .
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge without pay for 1 month for 2 incidents of inappropriate touching of a court employee that demeaned, belittled, and publicly humiliated her.  In the Matter of Council, Order (New Jersey Supreme Court December 3, 2015).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for creating the appearance that he was biased in favor of the town in a dangerous dog case by sua sponte sending hearing notices to witnesses whom he speculated would be needed to testify for the town, summarily ending the hearing at the conclusion of the prosecutor’s case, failing to allow the defendant or her witnesses to testify, and deciding in favor of the town without including statutorily-mandated conditions consistent with the ruling.  In the Matter of Heintz, Determination (New York State Commission on Judicial Conduct December 17, 2015).
  • Based on an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge who, while arraigning 2 defendants charged with environmental conservation law violations, listened to a defendant’s “version of the story,” reviewed a map of the alleged trespass site, identified locations on the map, discussed with the defendants whether the locations were public or private, asked the defendants about the events, and listened to their explanations, and failed to set a court date for about 10 months.  In the Matter of Trickler, Determination (New York State Commission on Judicial Conduct December 17, 2015).
  • The New York State Commission on Judicial Conduct publicly censured a judge for driving while under the influence of alcohol and repeatedly asserting his judicial office in connection with his arrest.  In the Matter of Landicino, Determination (New York State Commission on Judicial Conduct December 28, 2015).
  • Pursuant to the judge’s agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a chancellor for an order dismissing a complaint for divorce and a counter complaint with language analyzing the U.S. Supreme Court decision on same-sex marriage in Obergerfell v. Holdges.  Re Atherton (Tennessee Board of Judicial Conduct December 18, 2015).

Outside the parameters

With the judge’s acceptance, the Tennessee Board of Judicial Conduct publicly reprimanded Judge Michael Hinson for “conducting judicial business outside the parameters of the COVID-19” plan for his judicial district as approved by the Tennessee Supreme Court and making a discourteous remark about the Chief Justice.  Hinson (Tennessee Board of Judicial Conduct December 15, 2020).

The judge failed to limit the number of persons in his courtroom and has not been enforcing social distancing requirements; at times, his courtroom “has been filled to capacity, even to the point of members of the public having to stand shoulder to shoulder along the walls because all the seats are taken.”  In addition, referring to the Court’s pandemic-related guidelines, the judge commented to a court audience that he “wished Chief Justice Jeff Bivens would win an award so that the COVID-19 mandates” would end.

The judge acknowledged that “failing to abide by the directives of a higher court is unacceptable and reflects poorly” on him as a judge and admitted that his comment was wrong, although he stated that he “intended no disrespect.”

The Board acknowledged that the judge’s courtroom was small and that he has been trying to avoid a backlog of cases, but it emphasized that the COVID-19 guidelines adopted by the Court “are not mere suggestions.  Conducting judicial business within those guidelines, which have been expressed in court orders, is not optional. . . .  By requiring all judicial districts to adopt measures designed to protect users and employees of the court system from the risks associated with COVID-19, the Supreme Court has recognized that the health and safety of litigants, witnesses, attorneys, court staff, and others is of utmost importance.  Thus, regardless of how logistically or administratively inconvenient, and no matter a judge’s personal views concerning the pandemic generally, all judges are obligated to comply with and enforce the pertinent guidelines.” 

The Board also stated that the judge’s comment regarding the Chief Justice was “neither dignified nor courteous” and did not inspire public confidence in the judiciary “even if off-the-cuff and with no intent to be offensive.”  It acknowledged that there was no evidence to doubt the judge’s assertion that he had not 5“to cast aspersions on any member of the Supreme Court,” but emphasized that those who heard the comment had no way of determining his “intent apart from the words used.  Once such comments are made, the damage is done.” 

See also In re Disqualification of Fleegle (Chief Justice Ohio Supreme Court December 10, 2020) (disqualification of judge from 2 criminal cases because he could not prove that he had taken steps to protect the safety of individuals in the courtroom and could not articulated “the necessity of proceeding with jury trials during a dangerous stage of a pandemic”).

Throwback Thursday

10 years ago this month:

  • Based on an agreement, the Arizona Supreme Court publicly censured a judge who, during a settlement conference, said “f*** you” to one of the attorneys while showing his middle finger and told the attorney it was “sh***y” of him to change his position.  Cornelio, Order (Arizona Supreme Court December 9, 2010).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for failing to be present or immediately available to promptly attend to court business.  Williams, Amended order (Arizona Commission on Judicial Conduct December 9, 2010).
  • The California Commission on Judicial Performance publicly admonished a judge for inappropriate comments, for example, referring to a tall, thin female attorney with short hair as a “Q-tip.”  Public Admonishment of Gibson (California Commission on Judicial Performance December 14, 2010).
  • The California Commission on Judicial Performance publicly admonished a judge for driving under the influence of alcohol.  Public Admonishment of Widdifield (California Commission on Judicial Performance December 14, 2010).
  • Accepting the recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge and fined her $5,000 for identifying $125,000 on her campaign disclosure form as loans from herself that were, in fact, loans from her father.  Inquiry Concerning Colodny, 51 So.3d 430 (Florida 2010).
  • The New York State Commission on Judicial Conduct publicly censured a judge for operating a vehicle while under the influence of alcohol, resulting in his conviction for driving while ability impaired, and asserting his judicial office in connection with his arrest.  In the Matter of Maney, Determination (New York State Commission on Judicial Conduct December 20, 2010).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) serving as a fiduciary for a close, personal friend and the friend’s daughter and (2) dismissing a DWI case against the friend.  Public Admonition of Fitzgerald (Texas State Commission on Judicial Conduct December 16, 2010).
  • The Utah Supreme Court approved the implementation of a public reprimand based on a stipulation of a judge for failing to disqualify himself from 37 traffic citations issued by his son-in-law, the police chief.  In re Adams, Order (Utah Supreme Court December 20, 2010).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for failing to hold mitigation hearings when requested and reducing a person’s fine based solely on review of the citation and the person’s driving record.  In the Matter of Hille, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct December 3, 2010).

Recent cases

  • Accepting the findings and recommendation of the Judicial Qualifications Commission based on stipulations, the Florida Supreme Court publicly reprimanded a judge for yelling and waving his arms at people in the lobby outside his courtroom while trying to get them to be quiet and threatening one of them with contempt.  Inquiry Concerning Miller (Florida Supreme Court November 5, 2020).
  • Adopting the findings of the Judiciary Commission and agreeing with its findings, the Louisiana Supreme Court removed a justice of the peace from office for being unavailable and unresponsive to the constable and citizens in his jurisdiction, failing to take any action on an eviction filing and to refund the unearned filing fee, and failing to cooperate with the Commission.  In re King (Louisiana Supreme Court November 19, 2020).
  • Based on a stipulation of discipline by consent, the New Jersey Supreme Court publicly reprimanded a part-time judge for failing to recuse herself from cases in which the landlord for her law office appeared on behalf of clients.  In the Matter of Munoz (New Jersey Supreme Court November 23, 2020).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for (1) on his personal Facebook page during his campaign, posting memes that propounded conspiracy theories, making disrespectful and undignified comments about laws he would be sworn to uphold as a sitting judge, and endorsing a candidate for the town council and (2) while a judge, posting comments on his personal Facebook page about the release on bond of a defendant he had arraigned, linking to articles critical of bail decisions in other cases, and commenting on one of those cases.  In the Matter of Schmidt, Determination (New York State Commission on Judicial Conduct November 3, 2020).
  • The Pennsylvania Court of Judicial Discipline ordered that the pay withheld from a former judge since his suspension in August be permanently withheld and that his resignation and pledge not to serve be binding and irrevocable based on his stipulation to the facts in a complaint filed by the Judicial Conduct Board alleging he (1) in a post-trial conversation with the attorneys in a criminal case, referred to a juror as “Aunt Jemima” and said that she had a “baby daddy” at home “slinging heroin,” referred to a second juror as a “knucklehead,” and criticized the seating of a juror whose daughter was a public defender; (2) made insulting remarks to the parents in a custody case and affected a manner of speech referred to as “Ebonics;” and (3) made improper comments during sentencing in 2 cases.  In re Tranquilli, Order (Pennsylvania Court of Judicial Discipline November 19, 2020). 
  • The Texas State Commission on Judicial Conduct publicly warned a judge for (1) her Facebook activities in support of a friend’s campaign for city council and (2) a court clerk’s acceptance of a donation to her campaign at the courthouse; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Woodard and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for publicly disparaging another judge’s bond determination on Facebook and referring to the other judge’s family in doing so; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Crow and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for failing to timely set, hear, decide, and sign a judgement creditor’s post-judgment motions and to timely refer his motion to recuse; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Hall and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020), on appeal to special court of review.
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for failing to comply with the law before holding an attorney in contempt; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Admonition of Richter and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).
  • The Texas State Commission on Judicial Conduct publicly admonished a former judge for (1) removing a campaign sign from his neighbor’s property and his interview with the media about the incident; (2) instructing his staff not to accept applications for writs of possession after 3:30 p.m. or before 10:30 a.m.; (3) failing to forward a notice of appeal of the denial of a pauper’s affidavit to the county court and issuing a writ of possession after the appellant had timely perfected his appeal; and (4) failing to timely submit a response to staff’s letters of inquiry.  Public Admonition of Metzger (Texas State Commission on Judicial Conduct November 12, 2020).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for ordering the clerk’s office not to accept a plaintiffs’ motion to reopen a case; the Commission also ordered the judge to obtain 1 hour of instruction with a mentor.  Public Warning of Bosworth (Texas State Commission on Judicial Conduct November 12, 2020).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge for “an intermittent pattern of intolerant and intemperate behavior” and using profanity, epithets, and slurs in the courtroom; the judge also agreed to participate in 2 hours of ethics training and to participate in behavioral coaching.  In re Wilson, Stipulation, agreement, and order (November 20, 2020).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for telling a defendant with “idiosyncratic beliefs about the court system” to leave the courtroom and then ordering his arrest for contempt for “constructively” failing to appear and disruptive behavior; the judge was also ordered to complete at least 2 hours of training.  In re Jurado, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 20, 2020).

Throwback Thursday

20 years ago this month:

  • The California Commission on Judicial Performance publicly admonished a judge for making remarks to friends that purported to convey the outcome of an appeal in which the friends had an interest.  Public Admonishment of Revak (California Commission on Judicial Performance December 12, 2000).
  • Adopting the recommendation of the Commission on Judicial Performance based on an agreed statement of facts and recommendation, the Mississippi Supreme Court publicly reprimanded a judge for his conduct in 2 related cases, including imposing fines and sentences in excess of his statutory authority and presiding over a perjury charge although he lacked jurisdiction.  Commission on Judicial Performance v. Neal, 774 So. 2d 414 (Mississippi 2000).
  • Accepting the determination of the State Commission on Judicial Conduct, the New York Court of Appeals removed a judge from office for (1) failing to deposit court funds in his official account within 72 hours after receipt, in violation of court rules, (2) failing to remit court funds to the state comptroller by the tenth day of the month following collection, in violation of statutes, (3) his conduct during a disagreement with a local attorney who represented a funeral home in an action against the judge for an unpaid bill, (4) acting in a retaliatory manner toward a second attorney, and (5) suspending a traffic defendant’s driver’s license out of personal animosity for the defendant’s attorney.  In the Matter of Corning, 741 N.E.2d 117 (New York 2000).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for embezzling court funds to pay a woman with whom he had an affair.  In the Matter of Brown, 540 S.E.2d 452 (South Carolina 2000).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former magistrate for financial mismanagement of his court.  In the Matter of Roberts, 540 S.E.2d 458 (South Carolina 2000).
  • Pursuant to a stipulation and agreement, the Washington Commission on Judicial Conduct publicly admonished a judge for using an arguably harsh and inappropriate tone and manner when interacting with defendants in 3 case.  In re Lukevich, Stipulation, Agreement and Order of Admonishment (Washington Commission on Judicial Conduct December 1, 2000).

Setting the tone

A recent judicial discipline case illustrated the connection between judicial demeanor and public confidence in judicial decisions.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly censured a judge “for an intermittent pattern of intolerant and intemperate behavior.”  In re Wilson, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct November 20, 2020).  The judge also agreed to participate in at least 2 hours of ethics training and to participate in behavioral coaching with an emphasis on courtroom demeanor by a qualified behavioral modification professional until the “professional has certified, in writing, that such counseling has accomplished positive changes and that in his/her opinion, the Respondent has the competency to maintain these changes in the future.”

The Commission initiated a complaint after the court of appeals reversed a sentence imposed by the judge and remanded for re-sentencing before a different judge.  The reversal was based on the judge’s use of profanity and comments that appeared to manifest bias against a defendant terminated from drug court.  In that case, the judge, after telling the defendant he could, “Stop with the shoulder bulls*** now,” said:  “So I got a guy standing in front of me, who won’t tell me that he’s got a dirty UA for alcohol, finally admits that he drank and then tells me he needs anger management.  I think you’re a f***ing addict and maybe you need treatment.  I don’t think it’s got nothing to do with anger management.  You think I give you anger management and that’s gonna get you clean and sober?  What the hell are you talking about?  Have a seat, over here…  Percocet and alcohol…  I’m gonna relax a little bit and then figure out what to do with him.”  The judge also said:  “You, sir, are just a criminal, that’s all you are, you’re just a criminal.  Do you have issues?  Yep, you do.  Are you going to deal with them?  No, you’re not….  You, the odds say, are going to die in prison.”

The judge’s disrespectful language to a defendant led to reversal of a second sentence and remand to a different judge.  In that decision, the court of appeals rejected the prosecution’s argument that the judge had simply been having “a serious conversation” with the defendant about addiction and the possibility of change and explained that slurs and epithets were not necessary for a serious conversation and that the judge’s “harsh and inappropriate language defeated the purpose.” 

The Commission identified additional hearings in other cases that illustrated the judge’s intemperate behavior.

During one hearing, the judge told an attorney who was trying to make a record:  “You don’t have the right to make a record” and “I am not going to proceed in this case with this counsel in front of me.  The matter will be stricken, and re-note it in front of another judge.  You may take him,” the latter comment directed to the jailer about the in-custody defendant.

At another sentencing hearing, the judge denied the prosecutor’s request to have the victim present by telephone, saying in an elevated and agitated voice while pointing directly at the prosecutor, “Neither you nor your office have a right to tell this Court what it’s going to do in its own courtroom.”

The Commission had publicly admonished the judge in 2018, based on a stipulation and agreement, for, during sentencing in a domestic violence case, addressing the defendant in a confrontational and angry tone, repeatedly calling the defendant “an animal,” and, near the conclusion of the hearing, refusing to let the defendant speak.

In the current discipline case, the Commission noted that, although the judge “is generally calm and professional on the bench, at times he can be impatient or volatile,” interrupting litigants and attorneys, addressing them “in an unduly confrontational, condescending, and harsh manner,” using foul language, profanity, and language that manifested bias or prejudice, and expressing “anger or emotion.”  It noted several negative effects of such conduct:

  • It “may impair the right of individuals to be fairly heard by intimidating or discouraging them from fully presenting their positions in court.”
  • It may discourage “others from wanting to appear in his courtroom for fear of how they might be treated.”
  • It affected his ability to execute his duties and significantly impacted “his efficacy as a judicial officer,” noting his recusal from 1 case and the 2 cases in which he was reversed.

The Commission emphasized:

The judge sets the tone for the courtroom.  Discourteous and disrespectful behavior by a judge in the courtroom erodes the public’s confidence in the quality of justice administered by that judge, not only for the direct targets of such behavior, but also for all those who witness it.  The public is more likely to respect and have confidence in the integrity and fairness of a judge’s decision if the judge is outwardly respectful, patient and dignified.  Because of the power disparity between a judge and others in the courtroom, berating a litigant or an attorney is not a proper exercise of judicial power.

Throwback Thursday

25 years ago this month:

  • Pursuant to a conditional agreement for discipline, the Indiana Supreme Court publicly reprimanded a judge for having an attorney arrested for failing to appear at a hearing when the date for the hearing had been rescheduled after an ex parte communication with the prosecutor, the attorney had informed the judge that he had a conflicting court date, and the judge had denied a motion for a continuance.  In the Matter of Johnson, 658 N.E.2d 589 (Indiana 1995).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for, without a subpoena or official summons, signing a 2-page affidavit that provided opinion evidence about the parenting skills of parties in a pending matter.  In re Poyfair, Stipulation and Agreement and Order of Admonishment (Washington State Commission on Judicial Conduct December 1, 1995).
  • Pursuant to a stipulation, the Washington State Commission on Judicial Conduct publicly reprimanded a judge who had initiated or considered ex parte communications concerning pending or impending proceedings.  In re Burchard, Stipulation and Order of Reprimand (Washington State Commission on Judicial Conduct December 1, 1995).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for inappropriate statements in 3 domestic abuse cases.  In re Turco, Stipulation and Written Admonishment (Washington State Commission on Judicial Conduct December 1, 1995).
  • The Washington State Commission on Judicial Conduct publicly censured a judge for a pattern of inappropriate sexual behavior; for assaulting his then-wife; for improperly requiring a party to file an affidavit of prejudice against him after he had recused himself; for conducting a mitigation hearing on a traffic citation received by a woman he was dating; and for inappropriately touching a pregnant court employee and commenting, “I can’t get you pregnant, obviously.”  In re Wilcox, Commission Decision (Washington State Commission on Judicial Conduct December 1, 1995).

More Facebook fails

Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for (1) during his campaign, on his personal Facebook page, posting memes that propounded conspiracy theories, making disrespectful and undignified comments about laws he would be sworn to uphold as a sitting judge, and endorsing a candidate for the town council; and (2) after becoming a judge, on his personal Facebook page, posting comments on the release of a defendant he had arraigned, linking to articles critical of bail decisions in other cases, and commenting on one of those cases.  In the Matter of Schmidt, Determination (New York State Commission on Judicial Conduct November 3, 2020).  Screenshots of his posts are attached to the agreed statement of facts.

The judge served as a justice of the Brunswick Town Court from January 1, 2000 to December 31, 2015.  In March 2019, the judge announced his candidacy for the same office, securing the Republican Party nomination in April, winning the election in November 2019 election, and taking office on January 1, 2020.

The judge maintained a Facebook account under the name “Bob Schmidt.”  The biographical information on the Facebook page listed one of his occupations as “Judge – March 15, 1999 to Present – Brunswick, New York” and “Local Criminal Court Judge.”  The public could view all of the posts on his page.

(1) On various dates in August 2019, the judge posted to his Facebook page:

  • A meme that implied that former President Bill Clinton had killed Jeffrey Epstein.
  • A meme depicting a witch trial hanging that read, “JUST A REMINDER…SALEM, MASSACHUSETTS HAD ‘RED FLAG’ LAWS, TOO.”
  • A meme that read, in part, “WHAT DOES THE SHEEP SAY?  WE NEED COMMON SENSE GUN CONTROL.”
  • A meme that displayed a photograph of a Nazi book burning with the text, “BOOK BURNINGS DON’T JUST LOOK LIKE THIS,” above a second image showing a social media platform warning that posts in violation of the platforms’ guidelines will be removed, with the text, “THEY ALSO LOOK LIKE THIS.”

In addition, the judge posted a link to the Facebook page for the campaign of Brunswick Town Council candidate Mark Cipperly and “liked” a comment to the post by another Facebook user that read, “Cip is a good man.”

(2) The judge was elected as town justice in the November 2019 election and took office on January 1, 2020.

On January 4, 2020, the judge posted to his Facebook page a statement in which he announced he had performed the first nighttime arraignment of his new judicial term and wrote, “Feel like a judge again.”  In a comment on his post, another Facebook user asked if the defendant had been released before the judge got “back in bed,” to which the judge replied, “of course.  This is NY 2020.”

On January 30, the judge posted to his Facebook page a link to a New York Post article entitled, “Fatal DWI suspect bragged about bail reform:  ‘I’ll be out tomorrow’” about a pending case in which the defendant had been indicted for vehicular manslaughter and other charges.  The judge wrote above the post, “Sign of the time,” and another Facebook user commented, “I predict vigilante mentality will soon return.”  

On February 2, the judge posted to his Facebook page a link to a New York Post article entitled, “Suspect in brutal mugging of elderly woman caught on video released under new bail law” about a pending case in which the defendant had been charged with robbery.  Another Facebook user commented on the judge’s post, “Is this true?, [sic] disgusting!”

The judge removed the Facebook posts after receiving the Commission’s letter regarding their propriety in April 2020.  To the Commission, the judge wrote, “I cringe as I review the [posts] presented and have no explanation as to why I felt that it would be appropriate to put them on my Facebook page as a candidate for judicial office.”  The judge acknowledged that, “though the posts were not reflective of him as a town justice, his conduct was nevertheless beneath anyone who is privileged to wear a robe and is trusted with representing our judicial system to the public.”  The judge committed “to being more circumspect in his use of social media in the future . . . .”

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The Texas State Commission on Judicial Conduct publicly warned a judge for disparaging another judge’s bond determination on Facebook and referring to the other judge’s family in doing so; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.  Public Warning of Crow and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).

In July 2019, a post on the Facebook page “Inside Fort Bend County Courts” criticized Judge Robert Johnson’s decision to release on bond a defendant charged with capital murder.  The post described the defendant as a “violent, repeat offender” and indicated that, while out on bond, the defendant was arrested for “pistol whipping an innocent woman, car-jacking her, and leading [police] officers on a high speed chase endangering police officers and the community.”  In response, Judge Crow posted:  “This makes me so sad.  I wonder how Judge Johnson would feel if the woman that was pistol whipped was his daughter, wife, or sister?  He sounds like an activist judge trying to prove a point.  That doesn’t help the woman who was hurt.”

During her appearance before the Commission, the judge said that she had intended her post to be a comment on the need for judges to consider the totality of circumstances before issuing a bond, including the defendant’s criminal history and the risk the defendant poses to society.  The judge acknowledged that she did not have any personal knowledge regarding what Judge Johnson considered when making his ruling.  In her written responses to the Commission, the judge acknowledged that on reflection, “it would have been a more prudent choice to enhance and maintain confidences in our legal system by expressing my sentiment using different words.”

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The Texas Commission publicly warned a judge for her Facebook activities in support of a friend’s campaign for city council and a court clerk’s acceptance of a donation to her campaign at the courthouse; the Commission also ordered the judge to receive 2 hours of instruction with a mentor.   Public Warning of Woodard and Order of Additional Education (Texas State Commission on Judicial Conduct October 28, 2020).

The judge is personal friends with Fort Worth City Councilwoman Kelly Allen Gray.  During Gray’s 2019 re-election campaign, the judge shared a post and photograph of Gray on her Facebook page and posted “#teamkelly!” with the photograph, which was a hashtag used by Gray’s supporters.  On election day, the judge “liked” a Facebook post that tagged Gray’s Facebook page, included a photograph of someone with Gray’s campaign signs, and stated “re-elect Kelly Allen Gray!  Fort Worth City Council, -District 8.  #teamkelly.”

During her appearance before the Commission, the judge stated that she had not intended to endorse Gray but to show her support as a friend during a difficult time for Gray unrelated to Gray’s election campaign.  The judge recognized that people could have thought the post was an endorsement.

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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.