Judicial discipline during a pandemic

The number of public state judicial discipline cases in 2020 — 127 — was about the same number as 2019 even though, like everyone everywhere, judicial conduct commissions had to adjust their operations at short notice during the COVID-19 pandemic.  As commissions begin to release their annual reports for 2020, several have described the effects of the pandemic on their work.

In its annual report for its most recent fiscal year (September 2019 through August 2020), the Texas State Commission on Judicial Conduct describes how COVID-19 “frustrated normal operations, as it has for other state agencies,” but “caused the Commission to employ new and innovative practices.”  It explains:

Prior to early 2020, very little remote work was performed by Commission staff; however, since the Governor’s emergency order, Commission staff has effectively worked remotely.  The Commission commenced conducting hybrid meetings allowing remote or in-person appearances by Commissioners, staff and judges.  This was accomplished by utilizing Zoom technology provided by the Office of Court Administration while holding meetings around the State – thus far, in West, Central and North Texas.

The report states that “despite the challenges,” the Commission “resolved 1,240 cases which neared the prior ten-year average disposition rate of 1,260.”  (The Commission did note that it had disposed of approximately 27% fewer cases than in fiscal year 2019 because its ability to access information and investigate complaints was “severely limited” “for a significant, extended time” by a “devastating ransomware attack” suffered by the Commission’s information technology provider, the Texas Office of Court Administration.”)

The 2020 annual report of the New York State Commission on Judicial Conduct describes how the pandemic posed “unprecedented challenges” for the Commission “as it did throughout state government and, indeed, the nation and world.”  It explains the “‘virtual’ administration of the agency” that began in March.

Since then, nearly all agency business has been conducted electronically by staff operating in remote locations.  Commission meetings, staff meetings, investigative interviews, depositions and disciplinary hearings have proceeded via remote video platforms.  Documents have been disseminated and received by email as well as postal or courier services.  Faxes transmitted to the office over telephone lines have been automatically digitized and rerouted to an electronic email in-box.  As a result of these and other adjustments to business-as-usual, the Commission was able to keep abreast of its constitutional responsibilities. . . .

Although it expresses the hope for “a return to its offices in the fall of 2021,” the Commission predicts that “the innovative remote/electronic/operational adaptations necessitated by the pandemic will likely remain part of the ‘new normal’ in the post-Covid era.”

The Commission reports that its 24 public dispositions in 2020 were “the most in any year since 2009.”  The Commission also notes, however, that it received fewer new complaints in 2020 – 1504 compared to 1944 in 2019 — “in light of the Coronavirus pandemic, which caused the courts to close or operate in a limited manner throughout most of 2020.” 

The introduction to the 2020 annual report of the California Commission on Judicial Performance states.

The year 2020 has been extraordinary in many ways.  In the 60 years since the Commission was created, we have not seen the challenges and difficulties that have impacted everyone during this trying time.  The COVID-19 pandemic has turned our world upside down and has unfortunately led to tragic consequences for many.  But, in this difficult time, people have risen to the occasion to make sure we can continue to function as a society.  This was the case here at the Commission.  The employees at the Commission have stepped up to put in long hours, working remotely from home, not having the resources that they would normally have, to ensure that the functions and goals of the Commission continue to be met.  The constitutional mandate of the Commission on Judicial Performance is to protect the public.  No one here at the Commission has lost sight of this mandate during these trying times.

* * *
Beginning in March 2020, the Commission conducted all of our regularly scheduled meetings remotely, and we were able to consider each and every complaint filed.  This allowed us to handle matters as they came in and not get backlogged, despite the statewide shutdown.  During these meetings, we continued to have appearances by judges who wanted to be heard regarding their tentative discipline.  With the cooperation of the California Supreme Court, letting us use its courtroom, we were also able to conduct a public formal proceedings hearing with several Commission members appearing in person, as well as the judicial officer, his attorney, and the examiner who prosecuted the case (while properly socially distancing and wearing masks).  The other members of the Commission were able to appear and participate remotely, and members of the public were able to view the hearing via livestream.

No excuses

In 2 recent cases, the California Commission on Judicial Performance rejected several arguments the respondent judges raised to defend their discourteous conduct.

In 1 case, the judge had interrupted and spoken sharply, irritably, sarcastically, and impatiently to 2 defense attorneys who had appeared for an arraignment by phone the first day after the governor had issued the COVID-19 stay-at-home order.  The attorneys had asked for and received the judge’s permission to appear by phone because they were concerned about having been exposed to the virus and the possibility of spreading it at the courthouse.  They had tried but failed to get another attorney to appear for them at short notice.

Both attorneys argued for the defendants’ release on their own recognizance based on health concerns that made them vulnerable to the virus if in custody.  In response to one of the attorney’s reliance on a letter from his client’s doctor, the judge asked, for example, “How am I going to see that letter, if you’re not in my courtroom?” and made similar comments.  When he imposed bail of $150,000, he said, “if you have those letters, you can bring those in at” the preliminary hearing.  To the second defendant’s attorney as well, the judge stated:  “If you wished to present this evidence, you should have been here or had someone represent you” before imposing bail of $100,000.

In the judge’s response to the preliminary investigation letter, he acknowledged that he “should not have demonstrated irritation or impatience with defense counsel” and that he “spoke too sharply” to them.  He asked the Commission to consider “the highly unusual circumstances present at that time:”  the court had not yet implemented remote operations; it was not clear how long the stay-at-home order would be in effect; and there was no clear guidance about handling a request to appear telephonically at a criminal proceeding.

The Commission acknowledged that the circumstances were challenging but noted that the unusual circumstances also affected the defense attorneys and concluded that “the initial lack of clarity . . . did not excuse or explain the judge’s mistreatment of the attorneys.”  The Commission emphasized that there was “no evidence of provocative conduct by counsel,” noting that the judge had given them permission to appear by telephone and they appeared polite and respectful.  At his appearance before the Commission, the judge acknowledged that the transcript “looks bad,” but did not display contrition or admit that he committed misconduct, arguing instead that he had not treated the “attorneys any differently because they were not in the courtroom.”

In addition, in a case in 2018, the judge had made a gratuitous, undignified, and improper comment after a jury had acquitted defendant Eugene Germany but convicted his co-defendants, including Dalisha Jordan.  After the jurors left the courtroom, the judge said to Germany:

Let me tell you, you’ve been given a gift from God because there’s no question in my mind that you’re guilty of this crime. . . .  I’ll tell you, chivalry is not dead.  If you’d taken the deal, Ms. Jordan would have had that six year deal.  She’s going to get a lot more time than that.  So, you know, take that into consideration.  All right.  But you’ve been given a gift.  What you do with it is your choice.  Fair enough?

Germany responded, “Yeah.”

At his appearance before the Commission, the judge asserted that what he did “was right” and “what [he] should have done” and that it was his “duty” and his “responsibility” as a judge to advise Germany that he had been “given a gift from God” so that “Germany would take advantage of opportunities he has been given.”  However, the Commission explained that “a judge does not have a duty to advise a criminal defendant that the defendant has been given the gift of an acquittal.  While a judge may encourage a defendant to make better choices and take advantage of opportunities in the future, the judge must not do so at the expense of the jury and its verdict.”

The Commission publicly admonished the judge for his comments in these 2 cases.  In the Matter Concerning Connolly, Decision and order (California Commission on Judicial Performance April 2, 2021).

* * *
The California Commission publicly admonished a retired judge for (1) a pattern of poor demeanor in 10 dependency hearings over which she presided in 2019 and 2020; and (2) on consecutive days, yelling at court staff and displaying frustration about an internet outage and discourteously raising her voice to another judge.  Public Admonishment of Roberts (California Commission on Judicial Performance February 18, 2021).

The Commission concluded that the judge’s “misconduct involved harsh and degrading treatment of multiple vulnerable and struggling parents in dependency,” finding that “the number and nature of these incidents indicate a pattern of misconduct.”  For example, in 4 dependency hearings in the same case involving 2 siblings, the judge, among other comments and conduct, impatiently reprimanded the mother for something she did not do and stated that the father was “talking out of both sides of his mouth,” failed to get reimbursed for transportation expenses “because he didn’t feel like doing it,” and was “being uncooperative,” as the father tried to explain his request for replacement forms.  The judge also rolled her eyes, shook her head, argued with the parents, and declared that she could order the mother to do whatever she wanted.  In addition, the judge incorrectly accused the mother of being on a very high dose of heroin every day; derisively discussed the mother’s drug treatment records; said, without evidence, that there was “extreme violence” in the parents’ home; and said that the parents had turned into “very nasty people.’”  The Commission also found that, during those 4 hearings, the judge abused her authority by substituting her own judgment for that of the mother’s doctor on the issue of prescription marijuana and methadone use; abandoned the role of a neutral arbiter and became embroiled when she argued with the parents about the mother’s marijuana use; and repeatedly and negatively commented on the mother’s prescription use of methadone.

In hearings in other cases, the judge made remarks to parents, such as, “Don’t lie to me;” “that is a lie;” “appalling;” “That doesn’t help me at all.  How can I remember when you came to court last?”; “That’s baloney;” and “That’s why these children were detained.  Not because you made a stupid decision.”  The judge called a father’s lack of alcohol treatment “pathetic;” told parents, “Both of you are doing terribly, and there isn’t a chance in the world these children are coming home if you continue doing what you’re doing;” and said to a mother, “You’re clean?  And you expect me to believe that?”

In response to the Commission’s preliminary investigation, the judge blamed her frustration on the parents’ behavior and explained that “she employed a ‘tough love’ approach that she also used while presiding in drug court, arguing that her approach was necessary to compel parents to gain awareness of the harm they were causing their children and to change their behavior.”  However, the Commission found that “belittling and demeaning litigants is not appropriate in any court, dependency, criminal, or otherwise.  Such conduct violates the Code of Judicial Ethics.” 

6 of the hearings had taken place on January 8, 2020, the first day after the dependency court was moved from Chico to Oroville, in a consolidation plan the judge disagreed with.  Also on January 8, there was a court-wide internet outage that delayed the judge’s already-full calendar.

Sometime during the morning, a court staff member entered the judge’s courtroom to bring the courtroom clerk a message.  The judge appeared frustrated and upset by the lack of internet service and yelled, “This is ridiculous!”  Later that morning, another court employee heard the judge come out of her courtroom yelling, “This isn’t working!  This isn’t working!”  As the judge walked down the hall toward the clerk’s office, her voice continued to be raised.

The judge approached a staff member’s desk and yelled, “This is my worst nightmare coming to Oroville.  I never wanted this to happen.  Fix it immediately!”  or words to that effect.  The staff member offered to see if she could move the judge to another courtroom, but the judge yelled that she was not moving to another courtroom.  Then the judge turned and loudly stomped down the internal hallway toward the courtroom and her chambers.

At some point during the lunch hour, the judge returned to the clerk’s office and loudly demanded that a clerk request that a courtroom be opened in the Chico courthouse because a matter on her afternoon calendar had been incorrectly noticed for Chico.  The juvenile clerk contacted a supervisor who said that the court staff in Chico had decided not to open another courtroom.  When the clerk told the judge, she appeared to be very upset and left the clerk’s office.

Court staff heard the judge return to her chambers and slam both her outer and inner doors.  Later, when a court supervisor repeatedly knocked on the judge’s closed outer door, the judge refused to respond.

A few minutes later, the judge returned to the clerk’s office.  The judge was very upset and appeared to have been crying.  She began screaming and pointing her finger at one of the supervisors, demanding that court staff open a courtroom in Chico.  The supervisor attempted to calm the judge and explain the alternative plan to opening the courtroom.  But the judge refused to listen, repeatedly interrupted, and continued to scream and point her finger.  The judge then turned and walked out with the supervisor following.  The judge stopped in the middle of the clerk’s office, and yelled, “Fine!  I’ll just do this myself!” in front of a number of court employees.

Shortly thereafter, the judge emailed the presiding judge to tell her that she was sick and going home; she then left the courthouse.  Court staff expressed concern for the judge and concern that the public may have overheard her outbursts.

The following day, the judge returned to the courthouse and apologized to court staff for her behavior.

Judge Roberts asked the assistant presiding judge why she could not be moved to a specific other courtroom.  When the assistant presiding began to explain, Judge Roberts spoke to her with a raised voice.  The assistant presiding judge told Judge Roberts that she was going to leave if Judge Roberts continued to yell and that yelling at her or at court staff was not acceptable.  As the assistant presiding judge left chambers, Judge Roberts said derisively, “Thanks for the support.”

The judge acknowledged her mistreatment of staff, her misconduct in the courthouse, and her discourtesy to the assistant presiding judge; sincerely regretted “her lack of composure;” and recognized that her behavior was not appropriate.

Throwback Thursday

5 years ago this month:

  • Granting the application of the Commission on Judicial Qualifications, the Iowa Supreme Court publicly reprimanded a magistrate for misusing expunged files in his private law practice.  In the Matter of Sevcik, 877 N.W.2d 707 (Iowa 2016).
  • Following a hearing, the Kentucky Judicial Conduct Commission publicly reprimanded a judge for ordering a domestic violence complainant jailed after she recanted her testimony.  In re Collins, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission April 22, 2016).
  • The Mississippi Supreme Court suspended a chancellor without pay for 30 days, fined him $2,500, and publicly reprimanded him for negligence and inattention while executing ex parte orders that resulted in the dissipation of assets from a ward’s estate.  Commission on Judicial Performance v. Shoemake, 191 So. 3d 1211 (Mississippi 2016).
  • Based on a stipulation and the judge’s consent, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for initiating the prosecution of a trucking company and its owners for a violation of federal regulations and engaging in ex parte communications regarding the case, including plea negotiations; the judge was also ordered to complete 2 courses at the National Judicial College and to study relevant statutes, rules of civil procedure, and local rules.  In the Matter of Haviland, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline April 22, 2016).

Recent cases

  • Granting the recommendation of the Commission on Judicial Disabilities, the Maryland Court of Appeals removed a judge from office for (1) her conviction on charges of driving while impaired by alcohol, speeding, negligent driving, reckless driving, and discarding trash outside of her car; (2) during the traffic stop, failing to be truthful and cooperative, injecting her judicial position, and mentioning the officer’s superior; and (3) failing to comply with the terms of a conditional diversion agreement and reprimand issued by the Commission and failing to cooperate during the investigation.  In the Matter of Nickerson, Per curiam order (Maryland Court of Appeals March 26, 2021). 
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for endorsing or opposing candidates for the presidency and U.S. Senate on his Facebook page by, for example, “liking” Donald J. Trump’s Facebook page, including photographs of himself piloting a boat in the Trump Boat parade, and “liking” a newspaper endorsement in the Senate race.  In the Matter of Quinn, Public reprimand (Minnesota Board on Judicial Standards March 9, 2021).
  • Based on a stipulation the Nevada Commission on Judicial Discipline publicly reprimanded a judge for, during voir dire in a criminal case, throwing a book against the wall and cursing, berating, yelling at, and threatening a prospective juror for expressing her belief that she could not be impartial, which led to reversal of the jury verdict on appeal.  In the Matter of Scotti, Stipulation and order of consent to public reprimand (Nevada Commission on Judicial Discipline March 15, 2021).
  • Based on a stipulation of discipline by consent, the New Jersey Supreme Court publicly reprimanded a part-time judge for failing to maintain an IOLTA account and to maintain professional liability insuranceIn the Matter of Killen, Order (New Jersey Supreme Court March 11, 2021).
  • Accepting a stipulation based on the judge’s affirmation that he has vacated his office and will not seek or accept judicial office in the future, the New York State Commission on Judicial Conduct concluded an investigation of allegations that a non-lawyer judge (1) had repeatedly sent text messages to his then-girlfriend that contained threats about a former girlfriend and that were “vulgar, crude, demeaning and/or featured extreme gender-based slurs and profanity;” and (2) after arraigning a defendant, repeatedly engaged in unauthorized ex parte communications with the defendant and other individuals and, during one of the defendant’s appearances in court, advised the defendant how to avoid having his firearms confiscated by law enforcement.  In the Matter of DiVietro, Decision and order (New York State Commission on Judicial Conduct March 18, 2021).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a non-lawyer judge for posting on his Facebook page 2 photographs of himself wearing a sheriff’s uniform and comments expressing his appreciation for law enforcement officers and describing his appearance at a “Back the Blue” event.  In the Matter of Peck, Determination (New York State Commission on Judicial Conduct March 19, 2021).
  • Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for editing political opinion essays and letters to the editor intended and/or submitted for publication by a candidate for non-judicial elected town office and offering advice by email to the candidate about issues raised in his proposed submissions.  In the Matter of Rana, Determination (New York State Commission on Judicial Conduct March 19, 2021).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court publicly reprimanded a former judge for finding a friend not guilty of a traffic violation without a trial, plea, or appearance and asking a police officer to dismiss a ticket issued to his brother-in-law.  In the Matter of Mendelsohn (South Carolina Supreme Court March 31, 2021).
  • Based on the magistrate’s agreement to resign and never seek judicial office again, the West Virginia Judicial Investigation Commission publicly admonished the former magistrate for making numerous inappropriate sexual, homophobic, and racist comments to 2 individuals verbally and by text message and sending indecent photos, cartoons, and at least 1 video by text message.  Public Admonishment of Poe (West Virginia Judicial Investigation Commission March 12, 2021).

Throwback Thursday

10 years ago this month:

  • The Mississippi Supreme Court suspended a judge for 90 days without pay and publicly reprimanded him for ex parte communications with a police officer, taking a criminal defendant for a ride in his car, reducing the defendant’s fine at the request of the officer, and lying to the Commission on Judicial Performance investigator.  Commission on Judicial Performance v. Boone, 60 So. 3d 172 (Mississippi 2011).
  • Based on the presentment of the Advisory Committee on Judicial Conduct, which the judge accepted, the New Jersey Supreme Court publicly reprimanded a judge for involving the police in tracking down the parents of the teen who had damaged his son’s car, his treatment of the teen’s mother on the telephone and in a lawsuit, and being less than forthcoming with the Committee.  In the Matter of Baptista, 15 A.3d 323 (New Jersey 2011). 
  • The Texas State Commission on Judicial Conduct publicly warned a judge for issuing a summons for a citizen to appear in his court when no case was pending against the citizen and no criminal charges had been filed against him.  Public Warning of Perez (Texas State Commission on Judicial Conduct April 6, 2011).
  • Based on stipulated facts and a stipulated recommendation, the Utah Supreme Court approved the implementation of the Judicial Conduct Commission’s public censure of a former judge based on his guilty plea to charges of exposing himself to a police officer in a public restroom.  Inquiry Concerning Hare, Order (Utah Supreme Court April 6, 2011).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a former judge for expressing his support for a candidate for sheriff in a letter to the editor after he had announced his retirement but while he was still a judge.  In the Matter of Votendahl, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 22, 2011).

Facebook fails

A judge asked the Massachusetts Committee on Judicial Ethics whether they were required to report that another judge had political posts, memes, links, and exchanges on a Facebook profile.  Massachusetts Advisory Opinion 2021-1.  The inquiring judge had, while on Facebook near the 2020 presidential election, viewed the apparently publicly accessible personal Facebook profile of a person they recognized from the name and photograph as a sitting Massachusetts judge, although the profile did not refer to the other judge’s judicial status.  The posts included:

  • “Expressions of support for one of the major party candidates for president;
  • References and links to negative coverage of the opposing major party’s candidate;
  • Statements that the opposing party’s candidate and his family are ‘corrupt;’
  • Posts ridiculing and demeaning two female politicians of the opposing party;
  • Derogatory comments about immigrant parents who were separated from their children at the southern border; [and]
  • Complaints about media bias in election reporting.”

In a post 10 days after the election, the other judge stated that the election was a “mess” with a link to commentary by a media personality claiming that it had been “fundamentally unfair, compromised by alleged voting irregularities, and manipulated for the political benefit of the opposing party.”

Rule 2.15(A) of the Massachusetts code of judicial conduct provides:

A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, integrity, trustworthiness, or fitness as a judge in other respects shall inform the Chief Justice of the Supreme Judicial Court, the Chief Justice of the court on which the judge sits, and if the judge is a Trial Court judge, the Chief Justice of the Trial Court.

The Massachusetts provision is identical to the model code provision except that it identifies chief judicial officers as the appropriate authority to which misconduct should be reported where the model code designates “the authority having responsibility for initiation of disciplinary process in connection with the violation to be reported.”

The committee concluded that the inquiring judge was required to report the posting judge under Rule 2.15(A).  First, the committee stated, the inquiring judge knew that the other judge had “posted the materials in question to the Facebook profile or, if the materials were posted by someone other than the judge, that the judge permitted the materials to remain on the judge’s Facebook profile.”  Second, the committee concluded that “the content on the judge’s Facebook profile violates several provisions of the Code that require judges to avoid conduct in their personal and professional lives that creates an appearance of bias.”  Third, the opinion found, “the violations raise a substantial question regarding the judge’s fitness as a judge because, by publicly posting and/or tolerating the presence of the materials in question, the judge failed to act in a manner that upholds the public’s confidence in the impartiality of the judiciary and maintains the dignity of judicial office.”  The opinion explained:

The Facebook posts at issue here expressed favor for a specific political candidate and for specific political viewpoints; denigrated and demeaned opposing political figures and viewpoints; contained content that gave the appearance of bias based on gender, ethnicity, and immigration status; and promoted a claim that the election had been manipulated for the political benefit of the opposing party.  The judge’s conduct in posting such materials, regardless of the particular political viewpoints expressed, calls into question the judge’s impartiality and “undermines public confidence in the judiciary,” . . . and therefore raises a substantial question regarding the judge’s fitness as a judge.

2 judges recently deactivated their Facebook accounts in response to complaints about inappropriate activity.

On learning that the Judicial Standards Board was investigating his Facebook posts and reactions endorsing and opposing candidates for U.S. President and U.S. Senate, a Minnesota judge immediately deactivated his Facebook account and admitted that his Facebook activity had been “imprudent, indecorous and contrary to the spirit of the Canons.”  In the Matter of Quinn, Public reprimand (Minnesota Board on Judicial Standards March 9, 2021).

The judge had been tagged on Facebook in numerous photographs showing him wearing a MAGA hat and piloting a boat displaying at least 2 Trump flags in the Trump Boat Parade on the Mississippi River in September 2020.  He also included a screenshot of photographs of himself in the parade published in the St. Cloud Times, with the response, “Here we are!”

The judge also “liked” Donald J. Trump’s Facebook page and on that page:

  • Commented, “Trump will steam roll this election.  Those who’s [sic] eyes are closed move their mouths more to make up for their insecurities.  Stay strong; pray against evil,” on a video captioned, “We’re showing that we can create jobs, safeguard the environment, and keep energy prices low for America.”
  • “Liked” posts that stated:
    • “I will NEVER support Biden ever . . . . he’s been in politics for 49 years no wonder why the U.S. has so many problems.”
    • “I was thrilled to be back in WISCONSIN tonight with thousands of loyal, hardworking American Patriots!  47 days from now, we are going to win Wisconsin, and we are going to win 4 more years in the White House!  #MAGA.”
    • “One of the worst polls in 2016 was the @FoxNewsPoll.  They were so ridiculously wrong.  Fox said they were going to change pollsters, but they didn’t.  They totally over sample Democrats to a point that a child could see what is going on.  Rasmussen, which was accurate, at 52%.”
    • “Joe Biden is a disgrace.  A 47 year career waste.  Wake up people do we need someone like this as president.”
  • “Liked” a post regarding the Duluth News Tribune’s endorsement of Jason Lewis for U.S. Senate and commented on another post regarding the endorsement, “Whoa!  That is a weighty endorsement for Lewis and quite an indictment of [Senator Tina] Smith since she’s had years to work on her platform and record.  Clearly a big difference here.”
  • Commented, “Dips**t Biden.  Oops,” in response to an image that stated, “I’ve decided to cut back on political posts for a bit . . . instead I will share some word scrambles.  MURPT0022.” 

The Board stated that it does not discourage judges from using social media because it recognizes that judges maintain family and social connections through social media and often feel isolated due to their work, especially during the COVID-19 pandemic.  However, it emphasized that judges can and must participate in social media without violating the code of judicial conduct.

The Board found that the judge’s Facebook activity endorsed and opposed candidates for public office and “abuse[d] the prestige of judicial office to advance the personal or economic interests of the judge or others.”  The Board stated that the judge’s posts regarding his participation in the Trump Boat Parade “were the most flagrant example of his endorsement of a candidate for public office.”

The Board noted that, even though the judge “maintained a private Facebook page, not all of his activity remained private;” his “like” of the Trump page was public and his approximately 70 Facebook friends, some of whom are lawyers and judges, were able to view and publicize his Facebook activity.  The Board stated that “maintaining a private Facebook page, especially when a judge has a large group of Facebook friends, does not provide a shield for a judge who violates the Code.”

* * *
The West Virginia Judicial Investigation Commission publicly admonished a judge for comments she made on her Facebook page about a pharmacist arrested for destroying COVID-19 vaccine dosages and about the siege at the U.S. Capitol.  In the Matter of Jackson, Public admonishment (West Virginia Judicial Investigation Commission February 24, 2021).

On January 5, 2021, the judge posted a story on Facebook about the arrest of a Wisconsin pharmacist for allegedly destroying multiple doses of the COVID-19 vaccine by leaving them out a room temperature overnight, and she made negative comments about his alleged actions.  On the same day, Disciplinary Counsel contacted the judge and informed her that the comments violated the prohibition on public comments about pending cases, and the judge agreed to take the comments down.  Reminding the judge that she had previously been asked to take other Facebook posts down, Disciplinary Counsel explained that an ethics complaint would be opened against her if she did it again.

Despite that warning, from January 6-11, the judge repeatedly posted stories and/or inappropriate comments about the siege at the U.S. Capitol in Washington D.C. on her Facebook page.  For example, some of the comments were about former West Virginia House of Delegates member Derrick Evans, who allegedly participated in the siege and was the subject of federal criminal charges.

Facebook friend:          As the video ends, Evans shouts “Our house!  And then, “I don’t know where we’re going, but I’m following the crowd.”  What is he?  12?
Respondent:                  [Name] that is very disrespectful . . . to 12-year olds!
* * *
Facebook friend:          It sad, but I’m glad he was.  No one is above the law!
Respondent:                  [Name] it’s not sad!
Facebook friend:          It’s sad that delegates or any elected official would do this is what I mean.  I’m not sad he was arrested.  I’m sad and mad about what they all did!
Respondent:                  YES

Each of the judge’s posts elicited numerous responses.

In her response to Disciplinary Counsel’s complaint, the judge said:

Please be advised that on January 11, 2021, I deactivated my Facebook account. I am embarrassed by my actions and sincerely apologize. I must point out in my defense that my Facebook page was not accessible to the public but was viewable only by my friends and family. I was expressing my feeling to friends, not the general public. My second point is that nothing on my page identified me as a judge, although of course, my friends know that. You have been more than patient with me, and I regret any inconvenience this has caused you. I have no plans to reactivate my Facebook account until I retire. . . .

The Commission stated that “the concept of a ‘public comment’ applies to Facebook whether a judicial officer opens his or her personal page only to family and friends or to the public at large. For purposes of the term ‘public,’ the [Commission] believes the portion of the definition contained in Black’s Law Dictionary which states that the ‘word does not mean all the people nor most of the people nor very many of the people of a place but so many of them as contradistinguishes them from a few’ is appropriate . . . .” The Commission continued:

At all times when engaged on social media judges should remember the immortal words of industrialist Henry Ford that “[u]nder pressure, the mouth speaks when the brain is disengaged and sometimes unwittingly, the gearshift is in reverse when it should be in neutral.” Judges can never go wrong when they limit their Facebook posts to comments about family, pets, sports or the weather. In all other respects, a judge must maintain his/her impartiality particularly when commenting about issues that may come before the court.

Law enforcement alignment
Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for posting on his Facebook page 2 photographs of himself wearing a sheriff’s uniform and personal comments expressing his appreciation for law enforcement officers and describing his appearance at a “Back the Blue” event.  In the Matter of Peck, Determination (New York State Commission on Judicial Conduct March 19, 2021).

The judge’s Facebook page is viewable by the public.  The judge retired from the Ontario County Sheriff’s Office in December 2017.

On July 19, 2020, the judge attended a “Back the Blue” event in which a procession of motorists drove their vehicles to show support for law enforcement.  For approximately 30 minutes, the judge displayed a sign approximately 2 feet by 3 feet on which he had painted “Thank You” in blue lettering.

On July 21, the judge’s Facebook page displayed a “cover photo” depicting himself in his Ontario County Sheriff’s uniform while standing with 3 other individuals, one of whom was his daughter who was wearing a similar uniform.  The photograph was taken at his daughter’s police academy graduation in August 2018.  By July 21, the judge’s “cover photo” had approximately 277 Facebook “likes,” 2 “shares,” and 37 comments from other Facebook users.  

The judge also posted:

Today, my daughter … and I stood at the side of the road and watched in appreciation as hundreds of motorcycles and other vehicles passed by …  It was the Back the Blue ride in support of law enforcement …

I always tell her that she and her brothers and sisters in blue are still appreciated in OUR community.  Today’s event, and the overwhelming number of participants is a true example of that appreciation.  We both had tears streaming down our cheeks as folks waved and honked, acknowledging our sign thanking them for their support.

It is a tough time for law enforcement.  To those of my friends who served or continue to, always remember that you have chosen the noblest of professions and you ARE making a difference …

With this post was a photograph of the judge and his daughter wearing Ontario County Sheriff’s Office uniforms, taken at his daughter’s police academy graduation in August 2018.  By July 21, this post had approximately 940 Facebook “likes,” 355 “shares,” and 219 comments from other Facebook users.  Among the comments was one that identified him as “Judge!”

In April 2019, the Commission had issued the judge a letter of dismissal and caution for posting a comment criticizing a candidate in an election for county sheriff.

The Commission found that the judge’s “public Facebook post in which he aligned himself with and expressed his strong support for law enforcement personnel, casts doubt on respondent’s ability to act impartially when he presided over matters which involved law enforcement personnel.”

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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 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 website.

Throwback Thursday

20 years ago this month:

  • The Arizona Supreme Court suspended a former judge from the practice of law for 6 months following his conviction while a judge of federal felony counts of filing false tax returns and structuring currency transactions to avoid treasury reporting requirements.  In the Matter of Scholl, 25 P.3d 710 (Arizona 2001).
  • Pursuant to the judge’s consent, the Michigan Supreme Court publicly censured a judge for delay in 2 cases and failure to respond to inquiries from the Judicial Tenure Commission.  In the Matter of Jelsema, 625 N.W.2d 751 (Michigan 2001).
  • Accepting the recommendation of the Commission on Judicial Tenure and Discipline, the Rhode Island Supreme Court removed a former judge from office and imposed a monetary sanction on him for being regularly absent from his courtroom during normal working hours, gambling in a public casino, and pleading guilty to a federal felony offense for knowingly making a false statement under oath in connection with a personal bankruptcy petition.  In re Lallo, 768 A.2d 921 (Rhode Island 2001).
  • Pursuant to a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for failing to decide a summary motion for more than 10 months after the hearing date.  In the Matter of Borst, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct April 6, 2001).