More Facebook fails

In an interlocutory appeal, the Tennessee Court of Appeals found that a trial judge’s Facebook posts and other public statements were “easily construable as indicating partiality” against the manufacturers of prescription opioid medications being sued by local governments in a case over which he was presiding.  Clay County v. Purdue Pharma (Tennessee Court of Appeals April 20, 2022).  The court reversed the judge’s denial of a motion to recuse and remanded the case to be transferred to a different judge.

In an interview with a reporter for Law360.com, the judge said, among other things, that alleged discovery violations by the defendants Endo Health Solutions Inc. and Endo Pharmaceuticals Inc. were “like a plot out of a John Grisham movie, except that it was even worse than what he could dream up.”

In a subsequent post on his personal Facebook page, the judge asked:  “Why is it that national news outlets are contacting my office about a case I preside over and the local news is not interested.”  In response to a comment that, “You’re not trying to ban drunken bridesmaids on peddle carts,” the judge posted:  “[N]ope.  Opioids.”  The judge “liked” the follow-up comment:  “I don’t know if you’re going to get the help or platform you need from those with power/deep pockets.  Many of Tennessee’s powerful have ties to pharmaceuticals.” 

When another commenter asked on Facebook why the case was newsworthy, the judge responded, “Is a $1.2 Billion opioid case.  Our area has been rocked with that drug for decades.  Lots of interesting and new developments about the manufacturers in this case.”  One person commented, “We do not have a serious local news reporting outfit around here. . . .  The Tennessean is a left leaning rag so that leaves the internet to provide people the local ‘news.’”  The judge “liked” this comment and responded:  “This is an earth shattering case, especially for our community.  Fake news is not always what they publish, but what they choose not too also.”  Others commented about who should be held accountable. 

Ordering the judge’s disqualification, the appellate court concluded:

The above Facebook activity can reasonably be construed to suggest that the trial judge has a specific agenda that is antagonistic to the interests of those in the pharmaceutical industry. . . .  In our view, this activity by the trial judge positions himself publicly as an interested community advocate and voice for change in the larger societal controversy over opioids, not an impartial adjudicator presiding over litigation.  This perception is enhanced when considered alongside the trial judge’s ready participation in the Law360.com article and apparent desire, as expressed on his Facebook page, for more local media coverage.

The court noted that the trial judge’s Facebook page appeared “to be devoted in part to his re-election effort given a ‘Re-Elect’ picture banner next to his name” and that the judge appeared “to be motivated to garner interest in this case and draw attention to his stated opposition to opioids.”  It concluded that regardless whether he “is actually personally committed to banning opioids, his public post reflects this sentiment.” 

Subsequently, the Tennessee Board of Judicial Conduct suspended the judge with pay for 30 days for his statements about the opioid case and for his communications and physical relationship with a female litigant in a case pending before him.  In re Young, Order (Tennessee Board of Judicial Conduct July 26, 2022).  The Board noted that the judge’s term was ending August 31, 2022, after which it would no longer have jurisdiction over him. 

The Board found that, even after being removed from the case, the judge “continued his public media campaign by conducting additional interviews about the pending case with local and national publications and authoring additional social media posts,” which, the complaint by the pharmaceutical company’s lawyer alleged, risked tainting the jury pool.  Noting that the opioid case involved “numerous parties and more than a billion dollars,” the Board stated that the judge had not taken responsibility for the conduct that had led to his removal from the case and disrupted the orderly administration of justice, but in his response to the complaint, “blamed the parties and their lawyers,” “attempted to portray himself as a victim,” and “asserted, without citing any legal authority, that as a judge he essentially enjoyed a constitutional right to say and do as he pleased in the media and on social media platforms concerning the cases assigned to his court.”

In October 2020, based on the judge’s consent, the Board had suspended him for 30 days with pay and publicly reprimanded him for sending women inappropriate messages on social media platforms, but it had held the suspension in abeyance provided no meritorious complaints were filed against him during the remainder of his term.  (The Board does not have the authority to suspend a judge without pay.) 

* * *
The Arizona Commission on Judicial Conduct publicly reprimanded a judge for posting on his Facebook page a litigant’s request for an extension of time that claimed his puppy ate his paperwork.  Williams, Order (March 21, 2022).  The judge’s Facebook account identifies him as “Judge Gerald A. Williams.”

On his Facebook page, the judge posted a photograph of a pleading in which a litigant claimed that his puppy had eaten his paperwork and, therefore, he needed an extension of time to complete defensive driving school.  The judge “crudely attempted to redact the pleading by placing torn post-it notes over the litigant’s name,” but he did not cover the case number, and the text underneath the post-it notes was partially visible.  Several of the judge’s followers commented on the post, and the Commission stated that, although none of the comments “were tremendously disparaging or negative,” “the intention was clearly to mock the litigant’s request.”  Screenshots of the post and comments are attached to the Commission’s order.

After receiving notice of the complaint, the judge deleted the post.  In his response to the Commission, the judge “claimed that he was only trying to share an amusing anecdote, and he apologized if he unintentionally insulted the litigant.”

* * *
The West Virginia Judicial Investigation Commission publicly admonished a magistrate for, in addition to other misconduct, serving as one of several administrators/moderators for a neighborhood watch Facebook page.  Public Admonishment of Weiss (West Virginia Judicial Investigation Commission April 25, 2022).  The page states:

This page is the North View Neighborhood Watch Group.  This page is solely intended for North View, Clarksburg, West Virginia residents and past residents who want to make North View what it once was, again.  We are tired of the drugs, the run down houses, and all of the younger generation not caring about our beloved neighborhood.  Please report here, in confidence, to the moderators, any & all illegal activities that you see happening on our streets and in our homes.  It will be reported to the proper authorities & put on blast via our page.  We must do this as a Community!

After an incident in which someone had knocked on the door of the magistrate’s home and run away, the magistrate’s wife posted on the neighborhood watch Facebook page that the teens responsible had been caught.  Several members of the neighborhood, including parents of some of the teens, responded angrily that the teens were innocent, and one of the parents filed a complaint.

The Commission found that the magistrate created at least the appearance that he was pro-prosecution and pro-law enforcement by being the administrator for the neighborhood watch Facebook page, and the magistrate admitted that serving as administrator could lead a reasonable person to think that he was biased toward law enforcement.  The Commission also found that that his wife’s comment “was unseemly in light of the fact that people thought he was the one posting.” 

The Commission noted that it had previously warned the magistrate about posting on his Facebook page that he would dismiss any criminal citations issued for not wearing a mask because he thought it was unconstitutional.  The magistrate had admitted his post was wrong and apologized.

* * *
The Texas State Commission on Judicial Conduct issued a private reprimand and order of additional education to a judge who “made callous and discriminatory comments on social media which cast reasonable doubt on the judge’s capacity to act impartially as a judge.”

The Arizona Commission on Judicial Conduct dismissed a complaint that a judge had posted a racist social media post, but, finding that “certain language” in the post “gave the perception of bias and was an appearance of impropriety,” the Commission reminded the judge “to exercise vigilance over the contents of her social media postings, both personally and professionally.” According to the complaint, the judge’s post read:

VOTE AS IF:
Your skin is not white.
Your son is gay.
Your sister was a victim of gun violence.
Your daughter is transgender.
Your grandparents need medical care.
Your home is on fire.
Your partner is an immigrant.
Your brother is a veteran suffering from PTSD.
Your best friend is a victim of domestic abuse.
Your house is flooded.
Your folks are homeless.
Your daddy is Two Spirit.
Vote as if your family depends on it.

In its annual report for 2021, the Pennsylvania Judicial Conduct Board reported that it had issued:

  1. A letter of counsel to a judge who posted remarks and photographs on their Facebook page expressing support for a particular political party and candidates and expressing a negative opinion about certain U.S. Supreme Court opinions and justices.
  2. A letter of counsel to a judge who posted a photograph on Facebook and made comments to the media about the photograph that manifested a preference for a particular political party; and
  3. A letter of caution to a judge who unintentionally submitted Facebook friend requests to a victim in a criminal proceeding and a defendant in a criminal proceeding while using Facebook to investigate the identity of the victim and the whereabouts of the defendant.

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