More campaign Facebook fails

The Nevada Commission on Judicial Discipline recently reminded judicial candidates that “campaign-related social media platforms, such as Facebook, maintained by a campaign committee or others, do not insulate them from the strictures of the Code.”  In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018).  In that case, the Commission publicly reprimanded a former judge for an image that her campaign manager had posted on Facebook that showed the judge in her judicial robe photoshopped next to the actor Dwayne Johnson, known as the Rock.  The caption read, “It just makes sense:  Re-Elect Judge Heidi Almase.”  Later that evening, the judge commented on the Rock post:  “I’m ‘almost’ taller than him.  Almost.”

The campaign did not have permission to use the Rock’s image.  The judge lost the election.

The Commission found that the post improperly misled the public into believing that the Rock had endorsed the judge’s campaign and that the judge’s comment was “an improper confirmation and ratification of the earlier false Rock Post, thereby further misleading the public.”

The Commission also found that the judge had not taken reasonable measures to ensure that her campaign representatives complied with the code of the judicial conduct, providing her campaign manager and her graphic artist, “in essence, carte blanche and unsupervised access to her campaign Facebook page.”  The Commission noted that the campaign management contract did not contain any restrictions on the posting of social media materials, such as obtaining prior approval from the judge and that the judge did not discuss with her campaign representatives the constraints and prohibitions of the code.

 * * *
Similarly, the Florida Supreme Court recently removed a judge from office for false and misleading statements about her opponent her campaign made in an e-mail and on a Facebook page created by an electioneering communications organization formed and administered by her campaign manager.  Inquiry Concerning Santino (Florida Supreme Court October 19, 2018).

In the 2016 election, Santino was a candidate for an open judicial seat; Gregg Lerman was her opponent.  Santino hired Richard Giorgio of Patriot Games, Inc. as her campaign manager.

In September 2016, a Facebook page titled, “The Truth About Gregg Lerman” was created by Taxpayers for Public Integrity, an electioneering communications organization formed and administered by Patriot Games, Inc.  The header of the Facebook page stated:  “Attorney Gregg Lerman has made a lot of money trying to free Palm Beach County’s worst criminals.  Now he’s running for judge!”  Below that was a photograph of Lerman surrounded by the words, “CHILD PORNOGRAPHY,” “DRUG TRAFFICKING,” “MURDER,” “Identity Theft,” “RAPE,” “Sexual Assault,” “Internet Solicitation of Minors,” and “PEDOPHILES.”  The page also highlighted 4 high profile cases in which, it stated, Lerman “chose” to represent the defendants.  For example, the page stated:  “Instead of representing victims of crime, Gregg Lerman chose to represent convicted serial killer Ronald Knight who targeted gay men and brutally murdered them.  Now, he’s running for Judge!”

Santino’s campaign also sent an e-mail that described Lerman’s legal practice as “limited to criminal defense—representing murderers, rapists, child molesters and other criminals.”

The Court emphasized that the code did not permit the candidate to delegate to her campaign manager the responsibility for written materials created or distributed by the campaign.  The Court held that the judge’s actions “individually and through her campaign, for which she was ultimately responsible—unquestionably eroded public confidence in the judiciary.”  The Court found that the campaign had “expressly stated or implied that Lerman could not be trusted ‘for laboring in an occupation that serves to breathe life and meaning into the Sixth Amendment’” and “falsely communicated to the reader that Lerman was unfit for judicial office because of the type of law he practiced, and the type of clients he represented.”  The Court also concluded that the judge’s campaign statements “evidenced a bias against criminal defendants, toward whom she imputed guilt; against criminal defense attorneys, whom she implied had some character fault because they ‘choose’ to represent criminal defendants; and in favor of victims, whom she boasted that she worked to protect during her legal career.”

Noting that it has previously warned judicial candidates that serious campaign violations could warrant removal, the Court concluded:

Simply stated, Santino’s conduct does not evidence a present fitness to hold judicial office.  It is “difficult to allow one guilty of such egregious conduct to retain the benefits of those violations and remain in office.” . . .  We refuse to endorse a “win-at-all-costs-and-pay-the-fine-later” strategy, especially in light of our past warnings and stated intolerance for the kinds of campaign violations at issue here.

The Court explained that any sanction other than removal would send a message to judicial candidates that they may commit “egregious violations” during their campaigns and “if they win, a suspension or a fine or both will be the only result.  They will be allowed to reap the benefits of their misconduct by continuing to serve the citizens of this state.  This we cannot condone.”

* * *
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 here.

 

“We do that all the time” is no excuse

Agreeing with the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for (1) ordering the search of a litigant in open court and the seizure of money found on him; (2) misrepresenting facts about his campaign opponent; (3) publicly pledging during a candidate forum to hold no statute unconstitutional; and (4) holding first appearance hearings without counsel present the Saturday of Memorial Day weekend during his re-election campaign.  Inquiry Concerning DuPont (Florida Supreme Court September 6, 2018).

Approximately 4 months into the judge’s first term, during a hearing involving child support, the father explained that he had not completed a parenting class because he did not have the necessary funds.  The judge then ordered his bailiff to search the husband for money.  The search yielded $180, which the man claimed he was holding for someone else.  The judge immediately turned the $180 over to the mother, ordering that it be credited to outstanding child support.

Law enforcement officers reported the search to Judge Terrill LaRue, then administrative judge for the circuit.  Thinking that the judge had simply made a rookie mistake, Judge LaRue explained to Judge DuPont that he had employed “a very poor procedure” that should not be used again.  Judge LaRue was taken aback when Judge DuPont insisted, “I can do that,” and “we do that all the time in St. Johns County.”

During the discipline proceedings, the judge argued that the search and seizure was appropriate because other judges in the circuit employed similar techniques; he testified that he had directed several such searches previously, but did not do so again after this incident.  Emphasizing that the search and seizure was not forceful, he stated that he had been acting in the best interest of children who are in need of support.

The Court concluded that the judge’s “motives in conducting the search may have been ‘pure’ as he claims,” but “condemned such unlawful, judicially ordered seizures in open court.”  The Court noted it had sanctioned similar conduct in a previous case, referring to Inquiry Concerning Turner, 76 So. 3d 898 (Florida 2011).  In that case, the Court had removed a judge for, in addition to other misconduct, offsetting a juvenile’s court costs in exchange for the juvenile’s earring.  While questioning a juvenile appearing before him about the juvenile’s failure to pay costs, the judge noticed that the juvenile was wearing a “nice diamond earring.”  When asked, the juvenile said that it was fake and had cost $7.  The judge offered to give the juvenile a credit of $10 toward his court costs in exchange for the earring.  When the juvenile agreed, the judge instructed the deputy to take the earring from the juvenile and stated that he would credit $10 toward the juvenile’s outstanding court costs.

The Court held that, “although minor compared to his other transgressions, Judge Turner’s inappropriate conduct during a court-cost hearing . . . is further evidence of Judge Turner’s defective judgment. . . .  The courtroom is not a forum in which defendants may be required sua sponte by a judge to trade items of clothing or personal property in order to offset the costs assessed against them pursuant to our rules of court.”

The North Carolina Supreme Court has also sanctioned a judge for ordering a bailiff to search a husband’s wallet and turn his money over to the wife.  In re Badgett, 666 S.E.2d 743 (North Carolina 2008).

Following a hearing in which Floyd Carreon was pro se, the judge indicated that he would grant the domestic violence order of protection against Mr. Carreon sought by Kathy Carreon.  Mrs. Carreon then stated that she had no money, was without electric power, and needed transportation.  The complaint had not sought spousal support, but, without making any findings, the judge ordered Mr. Carreon to pay $150 a week to Mrs. Carreon.

After Mr. Carreon objected, the judge asked how much money he had on his person.  Mr. Carreon replied that he had $140.  The judge then ordered the deputy sheriff to search Mr. Carreon’s wallet; when the deputy hesitated, the judge repeated his order.  The deputy took Mr. Carreon’s wallet, counted his money, and reported that the wallet contained $140, a driver’s license, and a Social Security card.  The judge directed the sheriff’s deputy to turn over Mr. Carreon’s cash to Mrs. Carreon.

In the discipline proceedings, the Court concluded that the judge misused his judicial power by awarding spousal support when none had been requested and by ordering the bailiff to search Mr. Carreon’s wallet and turn his money over to Mrs. Carreon.  The Court stated that it was telling that the deputy clerk, deputy sheriff, and plaintiff’s attorney had recognized that the judge had violated Mr. Carreon’s rights, while the judge, “the only individual in the courtroom who had sworn to justly adjudicate cases involving constitutional rights of our citizens, was the person who deprived Mr. Carreon of his rights without regard to notions of fairness and due process.”  The Court censured and removed the judge for this and other misconduct.

In the DuPont case, the judge had admitted only to “mistakes” and “carelessness” in making representations about his opponent and denied “knowingly” or intentionally disseminating false information, claiming he relied on a campaign consultant and opposition researcher.  However, the Court concluded that, not only did the judge “fail to verify the accuracy of the information he was provided as was his obligation, but it also appears that Judge DuPont actually manufactured some of the facts he disseminated in relation to that information.”  The Court stated that the judge’s assertion that he had no evil intent was irrelevant.

During a televised judicial candidate forum, the moderator asked each candidate to describe their judicial philosophy.  The judge responded:

I know that this sounds cliché, but-uh, my philosophy is to not legislate from the bench.  I don’t believe that the Constitution is living and breathing.  And I don’t believe that it evolves on its own.  I believe that our founders knew exactly what they were doing when they created it—and that they created a mechanism whereby it can be changed.  And to be quite honest with you, uh, there have been numerous [sic] where I have actually been asked by attorneys to find that [a] statute is unconstitutional.  I have refused to do that, because my thought process is there’s another way to do that.  If they don’t like the decision they can appeal it, and it can start going up the food chain to do it that way.  But even though I’ve been asked to find a statute unconstitutional as a sitting judge, I have refused to do so.  Because again, it’s not my job to legislate from the bench.

The Court rejected the judge’s argument that he had not meant that he would never find a statute unconstitutional, only that he does not go into a case looking to overturn a statute but instead presumes statutes are constitutional.  The Court stated that the judge “made the statement in a very public forum and failed to take any steps to correct the statement even after he realized that he ‘screwed up.’”

On May 26, 2016, at the judge’s direction, his judicial assistant notified necessary personnel, including attorneys from the state attorney’s and public defender’s offices, that the time for first appearances on Saturday and Sunday had been moved up from 9 a.m. to 7 a.m. during the upcoming Memorial Day weekend.  The time was changed due to the judge’s campaign-related obligations that weekend.

On Saturday, with no notice to anyone, the judge began the 7 a.m. first appearance hearings at 6:30 a.m. and conducted them without counsel present.  The judge admitted that he ignored the rule that requires the attendance of counsel at first appearance proceedings.  He was unable to explain why he started the proceedings early and admitted that he committed misconduct by holding first appearances without counsel present.

Genuine, compelling, and indefinable

In the recent decision French v. Jones (9th Circuit December 7, 2017), the U.S. Court of Appeals for the 9th Circuit described how the “strict First Amendment framework” for challenges to restrictions on judicial campaign speech established in 2002 “underwent significant changes” in 2015.  In Republican Party of Minnesota v. White White, 536 U.S. 765 (2002), the U.S. Supreme Court held unconstitutional a prohibition on judicial candidates announcing their views on disputed legal and political issues, finding it was not narrowly tailored to serve the state’s interest in judicial impartiality.  In contrast, despite a similar First Amendment challenge, the Court upheld a prohibition on personal solicitation of campaign contributions in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015).

According to the 9th Circuit in French v. Jones:

  • Unlike White, the decision in Williams-Yulee “did not attempt to define precisely what judicial integrity or impartiality means” but emphasized that the concept of public confidence in judicial integrity “is genuine and compelling.”
  • Unlike White, the decision in Williams-Yulee “flatly rejected” arguments based on an under-inclusive analysis, noting it was “somewhat counterintuitive to argue . . . that a law violates the First Amendment by abridging too little speech” and emphasizing that a “State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.”
  • Unlike White, the decision in Williams-Yulee did not require that a restriction be “perfectly tailored,” only narrowly tailed, declining to “’wade into [the] swamp’ of unworkable line drawing” and respecting the state’s decision to address “evils in their most acute form.”

Thus, the 9th Circuit concluded that “Williams-Yulee marked a palpable change in the approach to state regulations of judicial-campaign speech” that now allows states to take “a middle ground” that both “abridge[s] some judicial-campaign speech and preserve[s] its election system . . . .’”  The court explained that the change was “perhaps best exemplified by our unanimous en banc decision in Wolfson” v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016), in which it had upheld numerous clauses in the Arizona code of judicial conduct.

In French v. Jones, the 9th Circuit upheld the rule in the Montana code of judicial conduct providing that “a judge or judicial candidate shall not … seek, accept, or use endorsements from a political organization, or partisan or independent non-judicial office-holder or candidate….”  The challenged rule is the same as Rule 4.1(A)(7) of the 2007 American Bar Association Model Code of Judicial Conduct except that the Montana version extends to endorsements by non-judicial officer holders and candidates as well as parties.

The 9th Circuit discerned 2 compelling state interests achieved by the endorsements rule:  an interest in both actual and perceived judicial impartiality and “a related but distinct” and perhaps “more compelling still” interest in a structurally independent judiciary.

With respect to impartiality, the Court noted “the regrettable but unavoidable consequence that judges who personally ask for political endorsements may diminish the public’s faith in the impartiality of the judiciary, whether a judge’s actual impartiality is affected or not.”  With respect to the judicial independence, it noted the numerous state models for judicial selection but emphasized, “[i]t is not for us to choose among these systems because the U.S. Constitution does not prescribe any particular form for state judicial elections.”  What is important, the court explained, is that “Montana has chosen to structure its third branch differently from the political branches,” and it declined to “fault its efforts to reinforce that choice in the manner in which it elects its judges” by prohibiting the solicitation and use of endorsements from political parties that might make the public “view the judiciary as indebted to, dependent on, and in the end not different from the political branches.”

The 9th Circuit rejected the plaintiff’s argument that the rule is fatally under-inclusive because it applies to endorsements from political organizations but not from other interest groups, corporations, and entities.  The court noted that “political parties are simply not the same as interest groups and private individuals.  Parties have comprehensive platforms, take firm positions on a multitude of issues, and are capable of exerting more influence in an election than most (if not any) interest groups.”  It also explained:

Once we turn to Montana’s interest in judicial independence (as opposed to mere judicial impartiality) the differences between political parties and interest groups grow starker.  An endorsement from a political party threatens the public perception of judicial independence to a greater degree than an endorsement from an interest group.  In all cases, an endorsement suggests the possibility of a quid-pro-quo exchange in which a judge may rule favorably for the endorsing entity.  But whereas a judge may only infrequently encounter litigation implicating an endorsing interest group, he or she is likely to often face legislation an endorsing political party has either supported or opposed.  Dependence on an endorsing political party brings into question whether a judge will be able to independently interpret and review a given piece of legislation and thus goes to the core of the separation of powers.

The 9th Circuit also rejected the plaintiff’s argument that the rule is impermissibly under-inclusive because it permits candidates to solicit and use political parties’ money but not their endorsements.

An endorsement is a public and easily communicable show of solidarity.  Although most campaign contributions are also public information, . . . they are less forceful and less easily communicable.  Unlike endorsements, information on campaign contributions typically requires extra work for voters to access.  It would therefore not be surprising for judicial candidates to derive more value from endorsements from political parties and popular politicians (including politicians outside Montana) than from even sizeable donations.  Montana could reasonably conclude that endorsements are more suggestive of a quid-pro-quo exchange and pose a greater risk to the public perception of its judiciary than donations.

Rejecting the plaintiff’s argument that the rule was unconstitutionally under-inclusive because it only applied during campaigns and to endorsements from “non-judicial office-holders,” the Court stated, “[i]t is almost self-evident that the dangers of actual and perceived bias and dependence are not nearly as great when the candidate is not yet running for office or when she uses endorsements from nonpartisan judges.”

The 9th Circuit rejected the argument that the rule is over-inclusive because it does not allow a candidate’s campaign committees to seek and use political endorsements.  The court stated that the “danger lies in the public losing trust in its judges from hearing political endorsements; it is irrelevant whether the candidate or the candidate’s committee delivers the message.”

The 9th Circuit rejected the argument that a party endorsement is just “shorthand for the [numerous] views the candidate holds.”  The court explained:

Seeking and using of political endorsements is nothing like announcing one’s views on certain issues.  An endorsement is a thing of value:  it may attract voters’ attention, jumpstart a campaign, give assurance that the candidate has been vetted, or provide legitimacy to an unknown candidate and indicate that he or she is capable of mounting a successful campaign.  Such things of value are usually not given out for free, and even when they are, the mere perception of quid pro quo in judicial campaigns might undermine the public’s trust in the impartiality and independence of its judiciary.

Finally, the 9th Circuit rejected the argument that Montana had presented no evidence that political endorsements cause harm and that the fact that states with partisan elections not only allow but require political endorsements demonstrates that there is no harm.  The court emphasized that “the Supreme Court has flatly stated that ‘[t]he concept of public confidence in judicial integrity … does [not] lend itself to proof by documentary record.’”  It concluded:

Montana need not present empirical evidence of something as abstract as a decrease in actual or perceived judicial impartiality and independence for its rule to survive strict scrutiny.  And as to the point regarding states with partisan judicial elections, neither Williams–Yulee nor Wolfson so much as thought about invalidating restrictions designed to preserve nonpartisanship in judicial elections simply because there are some states that have partisan elections and appear to be doing just fine.  If that fact alone were sufficient to invalidate a restriction on judicial-campaign speech, then nonpartisan judicial elections could be themselves deemed unconstitutional.  We decline to reach such a result.

Although French suggests that eliminating judicial elections altogether would be a less restrictive means to accomplishing Montana’s stated goals, Williams–Yulee and Wolfson foreclose that suggestion.  Those cases confirm that the states have every right to devise and regulate a system of nonpartisan judicial elections. . . .  The Constitution does not demand that the states follow the federal model and appoint their judges, and if it permits the states to hold partisan judicial elections, we see no impediment to the states adopting nonpartisan judicial elections, as Montana has done.

There is a summary of caselaw since Republican Party of Minnesota v. White on the Center for Judicial Ethics web-site.

Above the partisan fray

In a challenge to provisions in the Kentucky code of judicial conduct, the U.S. Court of Appeals for the 6th Circuit (1) held unconstitutional bans on judicial candidates making speeches for or against a political organization or candidate, campaigning as a member of a political organization, and making misleading statements, but (2) upheld prohibitions on judges and judicial candidates making contributions to a political organization or candidate, publicly endorsing or opposing a candidate for public office, acting as a leader or holding office in a political organization, knowingly or with reckless disregard for the truth making false statements during a campaign, and making pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office in connection with cases, controversies, or issues that are likely to come before the court.  Winter v. Wolnitzek, Opinion (6th Circuit August 24, 2016).  (Thus, the Court affirmed in part and reversed in part the holding of the U.S. District Court for the Eastern District of Kentucky discussed in a previous post.)

The 6th Circuit stated:

Regulating campaign speech is not easy.  It’s not supposed to be.  But treating elections for the courts just like elections for the political branches does not make sense either. Candidates for judicial office, if elected, are supposed to follow the rule of law — no matter current public opinion, no matter the views of the political branches, no matter the views of the parties that support them.  But candidates for the other offices are permitted to, indeed often expected to, listen to the views of their constituents and parties.  Navigating these cross-currents is no simple task . . . .

The Court distinguished the rules it was overturning on campaigning as a member of a party and making speeches on behalf of a party from the rules it was upholding because the former denied judicial candidates the means of effectively running their own campaigns while the latter kept “judges above the partisan fray of trading political favors” and prevented “the appearance that judicial candidates are no different from other elected officials when it comes to quid pro quo politics.”  It explained “[t]here is a distinction between speech-limiting regulations that limit all judges (elected or not) and those that hamstring judges in their efforts to run for election.”  The Court noted that “a state ‘cannot have it both ways.  If it wants to elect its judges, it cannot deprive its citizens of a full and robust election debate,” but concluded, “there is no having-it-both-ways problem with a contributions limit like this one,” for example.

A contribution to a political organization or a candidate in a different campaign “is less a judge’s communication about his qualifications and beliefs than an effort to affect a separate political campaign, or even more problematically, assume a role as political powerbroker.” . . .  While “[j]udicial candidates have a First Amendment right to speak in support of their campaigns,” . . . they do not have an unlimited right to contribute money to someone else’s campaign. . . .

Financial contributions, we realize, amount to speech. . . .  But the alignment between speech and money makes a difference only with respect to Janus-faced regulations that tell judicial candidates to run for office but deny them the tools for doing so.  That is not what this regulation does.  A contribution of time, money, or reputation to a political organization or a candidate in a separate election, whether judicial or not, differs in kind and degree from a judicial candidate contributing the same to his own campaign.  There is “a dividing line between” the speeches clause, “which impermissibly bars protected speech about the judge’s own campaign,” and the contributions clause, “which addresses a judge’s entry into the political arena on behalf of his partisan comrades.”

Upholding the prohibition on false statements, the Court noted that it had recently invalidated an Ohio ban on false statements that covered all non-judicial candidates for political office, but stated that the Ohio law was broader than the Kentucky rule and emphasized that Kentucky’s interest in preserving public confidence in the honesty and integrity of its judiciary is narrower and “more compelling than Ohio’s purported interest in protecting voters in other elected races from misinformation.”

However much or however little truth-bending the public has come to expect from candidates for political jobs, “[j]udges are not politicians,” and a “State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.” . . .  Kentucky has a “vital state interest” in safeguarding the public’s confidence in the honesty of its judiciary, . . . and the State’s ban on materially false statements by judicial candidates survives strict scrutiny — at least facially.

But the Court concluded that a ban on misleading statements “adds little to the permissible ban on false statements, and what it adds cannot be squared with the First Amendment.”  The Court is the sixth court to declare a prohibition on judicial candidates’ making misleading statements unconstitutionally vague and broad.  See also Butler v. Alabama Judicial Inquiry Commission, 802 So. 2d 207 (Alabama 2001); Weaver v. Bonner, 309 F.3d 1312 (11th Circuit 2002) (provision in Georgia code); In re Chmura, 608 N.W.2d 31 (Michigan 2000); In re Judicial Campaign Complaint Against O’Toole, 24 N.E.3d 1114 (Ohio 2014); O’Toole v. O’Connor, 2016 U.S. Dist. LEXIS 109923 (U.S. District Court for the Southern District of Ohio 2016).

There is a document summarizing all caselaw since the U.S. Supreme Court decision in Republican Party of Minnesota v. White on the Center for Judicial Ethics web-site at www.ncsc.org/cje.

Judicial campaigns on social media

28 of the 100 elected judges who responded to a 2014 survey said their campaigns had used social media.  2014 Conference of Court Public Information Officers New Media Survey, at page 44.  That percentage seems low compared to campaigns for other elective offices and is, therefore, likely to increase.  The New Mexico Supreme Court recently acknowledged “the utility of an online presence in judicial election campaigns . . . .”  State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016).

A judicial election campaign may use social media to promote the candidate by, for example, creating a Facebook page.  (This post will use the terms for actions on Facebook to describe conduct on social media in general, but the principles apply to analogous actions on other social media platforms.  Where relevant, this post will also rely on advisory opinions discussing web-sites, not just interactive social media.)  As the Florida advisory committee explained, the code of judicial conduct “does not address or restrict a judge’s or campaign committee’s method of communication but rather addresses its substance.”  Florida Advisory Opinion 2009-20Accord North Dakota Advisory Opinion 2016-2; ABA Formal Opinion 462 (2013).

A candidate’s social networking pages may allow visitors to list themselves as “fans” or supporters of the candidate.  Florida Advisory Opinion 2009-20.  The Florida committee stated that lawyers who practice before the judge may be fans of a judge’s campaign page even though the committee prohibits judges from being Facebook “friends” with lawyers who appear before them.  The distinction, the committee explained, is that, unlike a “friend” request on a personal page, on a campaign’s social networking site, the “judge or the campaign cannot accept or reject the listing of the fan,” and, therefore, “the listing of a lawyer’s name does not convey the impression that the lawyer is in a special position to influence the judge.”  See also ABA Formal Opinion 462 (2013) (“it is unlikely to raise an ethics issue for a judge if someone ‘likes’ or becomes a ‘fan’ of the judge through the judge’s [electronic social media] political campaign site if the campaign is not required to accept or reject a request in order for a name to appear on the campaign’s page”).

Most judicial ethics opinions on the issue seem to assume, without expressly requiring, that a campaign page will be separate from candidate’s personal or official page.  The Missouri committee advised that “when a judge chooses to use social media as part of the judge’s election campaign, best practice would suggest that a separate public social media site be used.”  Missouri Advisory Opinion 186 (2015).  The committee stated that the “site should be limited to the judge’s identity, qualifications, present position or other facts that are relevant to allowing the voters to make an informed decision.”

Responsibility

The 37 judges who in the 2014 survey said they were not sure if their campaigns used social media should pay more attention in any future campaigns.  Keeping informed is the only way a candidate can comply with the code of judicial conduct requirements that a judicial candidate “take reasonable measures to ensure” that the campaign committee does not engage in activity that the candidate is prohibited from doing and “review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee . . . before their dissemination.”  Rules 4.1(B) and Rule 4.2(A)(3).  There is no exception to those requirements for social media even if a judicial candidate entrusts her campaign’s social media component to her campaign committee.  (A candidate also retains that responsibility if she delegates maintenance of a social media site to a third person other than a campaign committee.  New Mexico Advisory Opinion Concerning Social Media (2016).)

Thus, the candidate is responsible for what the committee places on the internet and must ensure that the committee does not make statements there that the candidate cannot make.  See Florida Advisory Opinion 2012-15.  For example, the Missouri committee stated that, like judicial candidates, judicial campaign social media sites “must not misrepresent any facts, make pledges or promises of conduct in office other than the faithful and impartial performance of judicial duties or make statements that detract from the dignity of judicial office.”  Missouri Advisory Opinion 186 (2015).  The requirement that a judicial candidate “maintain the dignity appropriate to judicial office” was deleted from the model code in the 2007 revisions (although the requirement still applies to judges at all times), and many states no longer have it in their rules for judicial campaigns.  It does seem like a best practice, however, if not a requirement, for social media efforts and other campaign conduct.  See New Mexico Advisory Opinion Concerning Social Media (2016).

A campaign social media page “may not endorse or solicit funds for another candidate for public office” because a judicial candidate may not do so.  New Mexico Advisory Opinion Concerning Social Media (2016).  This includes any communication of approval or support, such as “liking” another candidate’s social media page.

A judicial candidate who is on a slate with other candidates may, according to the New York advisory committee, permit his campaign committee to add the committees of those other candidates as Facebook “friends” and/or to click “like” on their campaign committees’ pages because that link creates “no more appearance of an impermissible ‘endorsement’ than campaigning door-to-door or appearing in joint advertisements with other candidates,” which is expressly allowed by the code.  New York Advisory Opinion 2015-121.  However, the committee added that a judicial candidate must instruct his “campaign committee to refrain from any comments that would create an appearance the candidate directly or indirectly publicly endorses other candidates . . . , including by making any comments on other candidates’ qualifications . . . .”  Further, the committee emphasized that any such Facebook connections must be made from the committee’s page, not from the candidate’s personal account.  See also New York Joint Advisory Opinions 2012-84/2012-95(B)-(G) (a judicial candidate may include a link from her campaign web-site to a political organization’s web-site that contains information promoting her campaign).

All restrictions on judicial candidates and campaigns apply on-line as well as in-person, but the exact rules vary from state-to-state.  The model code restrictions (Rule 4.1) that seem particularly relevant to social media prohibit a judicial candidate from:

  • Making speeches on behalf of a political organization;
  • Publicly endorsing or opposing a candidate for any public office;
  • Soliciting funds for a political organization or a candidate for public office;
  • Personally soliciting or accepting campaign contributions other than through a campaign committee;
  • Publicly identifying as a candidate of a political organization;
  • Seeking, accepting, or using endorsements from a political organization;
  • Knowingly or with reckless disregard for the truth making a false or misleading statement;
  • Making a statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court; and
  • In connection with cases, controversies, or issues that are likely to come before the court, making pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

 

Solicitations

Because the code prohibits a judicial candidate from personally soliciting campaign funds except through a campaign committee (Rule 4.1(A)(4)), the Florida judicial ethics committee advised that “Websites and Facebook pages promoting the candidacy of a judge or judicial candidates should be established and maintained by these committees, and not by the judge or judicial candidate personally.”  Florida Advisory Opinion 2010-28See also Florida Advisory Opinion 2008-11 (a campaign web-site maintained personally by a judge may not refer to and facilitate the giving of financial and other support to the judge’s re-election campaign, but the judge’s campaign committee may create and maintain a campaign web-site that does so).  A judicial campaign site that solicits funds must make it clear that the candidate does not maintain it personally.  Florida Advisory Opinion 2012-15.  The word “contribute” may be placed under “volunteer, endorse, education, experience, family, and photos” if the site is clearly managed by the committee and does not give the appearance that the candidate is managing the site or its content.  Florida Advisory Opinion 2010-21.

The North Dakota committee advised that a judicial candidate “may establish electronic social media pages along with his/her campaign committee and participate in those aspects of maintaining the social media pages that do not involve financial solicitation on behalf of the candidate.”  North Dakota Advisory Opinion 2016-2.  The committee stated that social media pages established by the candidate or the candidate’s committee may link to a web-page that provides a place that allows for visitors to contribute to the candidate’s campaign.  See also New York Advisory Opinion 2007-135 (although a judge may not solicit campaign contributions on her own web-site, the judge’s campaign committee may do so on a web-site it sponsors if all donations are directed to the committee and not to the judge herself).

The New Mexico Supreme Court recently recommended that a judicial campaign social media site be established and maintained by the campaign committee, not a judicial candidate personally.  State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016).  The New Mexico judicial ethics committee advised that a judicial campaign committee may use a social media site to raise funds but that, because of the personal solicitation clause, a judicial candidate who maintains a social media site may not engage in fund-raising on his site and any financial contributions must be donated directly to his campaign committee.  New Mexico Advisory Opinion Concerning Social Media (2016).  (To comply with requirements specific to New Mexico, the opinion added, a judicial candidate must ensure that his committee tries to avoid soliciting contributions from litigants in pending cases, fund-raising results cannot be shared with the candidate, and the candidate must not access fund-raising information on the site.)

The New Mexico committee also advised that a “candidate should be cautious when inviting people to ‘like’ or ‘share’ a campaign page or post and take care to avoid any suggestion that in context might be perceived as a direct, personal solicitation of contributions . . . .”  The committee added that a “candidate may include a link from a campaign social media page to a web page maintained by the campaign committee, but any solicitation for contributions should be incidental to the structure of the page.”

Similarly, the Louisiana committee stated that a judicial candidate may link her personal web-site or social media page to her campaign committee’s social media page even if the campaign page is used in part to solicit funds, but not if it is used solely for fund solicitation.  Louisiana Advisory Opinion 271 (2016).  However, the committee explained, the link must be to a home page, not directly to a contribution page, although a link to a page that in turn links to a separate contribution page is permitted.  In addition, the committee stated, “when providing the link, the judicial candidate should make no mention of campaign contributions, but state something very general, such as:  ‘To find out more about my campaign, visit my campaign committee’s website at the following link.’”

The ABA advisory committee stated that “Websites and [electronic social media] promoting the candidacy of a judge or judicial candidate may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally.”  ABA Formal Opinion 462 (2013).  However, the 2007 ABA Model Code of Judicial Conduct does not prohibit judicial candidates from personally soliciting public statements of support (the 1990 model code did), so the basis for that advice is unclear unless the reference should have been to personal solicitations of contributions.

The North Dakota code prohibits a candidate from personally soliciting public statements of support and financial contributions except by “in-person oral solicitations to groups of 25 or more people” or by signing “printed or electronic materials” distributed by the campaign committee.  Thus, the advisory committee stated that a candidate may ask a visitor to a campaign social media page to “like” or “share” the page.  North Dakota Advisory Opinion 2016-2.  That a person may respond to a candidate’s public post or group solicitation by visiting a web-page where funds are solicited does not raise the concerns addressed by the rule, the committee concluded.  The committee did caution that, “on social media, just as in person, a candidate should avoid the sort of direct personal solicitation that could lead to allegations of bias, such as personal solicitations directed at individuals by private message or email.”

Ex parte communications, comments on pending cases

The West Virginia advisory committee stated that a judge should not post on her campaign web-site videos in which she answers questions about family law because she would be engaging in the impermissible practice of law and “potentially” in ex parte communications.  West Virginia Advisory Opinion 2016-1.  The committee stated that a judge or judicial candidate could post videos about procedures and what statutes say on child support calculations, for example, but “should be very careful to ensure that the explanations do not cross the line into legal advice or discussions concerning pending or impending matters.”  The committee also warned that such videos are likely to generate follow-up questions that a judge cannot answer.

The New Mexico Supreme Court stated that a judge who is a candidate should post no personal messages on a campaign social media page “other than a statement regarding qualifications,” should not allow public comments, and should not engage in any dialogue, “especially regarding any pending matters that could either be interpreted as ex parte communications or give the appearance of impropriety.”  State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016).  The Court did not address arguments that the trial judge’s social media posts about the case required reversal of a defendant’s convictions because it had reversed the conviction on the grounds that a prosecution witness testified via Skype, denying the defendant his right to confront adverse witnesses.  However, the Court took the opportunity to discuss its concerns about judges’ use of social media, cautioning judges to avoid both impropriety and the appearance of impropriety.  During the trial, the judge had posted on his campaign Facebook page, “I am on the third day of presiding over my ‘first’ first-degree murder trial as a judge.”  After trial, but before sentencing, the judge had stated, “In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch.  Justice was served.  Thank you for your prayers.”

Noting the interactive nature of social media sites, the New Mexico advisory committee identified a “potential for non-parties to post comments on pending cases” on a candidate’s social media page that “may lead to the appearance that the judge is participating in ex parte communications or statements concerning pending or impending cases . . . .”  New Mexico Advisory Opinion Concerning Social Media (2016).  The committee cautioned a judge to guard against such an appearance, and, if an ex parte communication does occur, to take the remedial action required by the code, that is, prompt notification of the parties and an opportunity to respond.

The committee noted that a judicial campaign committee may act as a “buffer” if the committee maintains the campaign social media site, rather than the judge.  The committee emphasized that a campaign committee “must vigilantly scrutinize the site to avoid any appearance that the judge is receiving ex parte communications and/or participating in improper communications.”

The New Mexico advisory committee also considered whether a campaign committee must fully insulate the judge from any improper communications, noting the committee could remove a communication without comment if the judge does not know about it.  The committee suggested that some ex parte communications would require a response that the judge would have to approve, which would necessitate remedial action in the case.  It seems, however, that a campaign committee should be able to effectively “screen” most if not all inappropriate on-line comments, eliminating the need for disclosure to the judge and, therefore, to the parties in a case, just as court staff may “screen” ex parte attempts to communicate with a judge in more traditional contexts.  See, e.g., New York Advisory Opinion 2015-178 (a housing court judge who repeatedly receives attempted ex parte communications from elected officials on behalf of their tenant-constituents should, if possible, have staff members return such communications to the sender without exposing the judge to the substance; if the judge does not review the communication, disclosure is not required, and the judge has no further obligation).

Social media endorsements

The prohibition on judges’ publicly endorsing political candidates applies on social media just as it does on any other forum or in any other format.  See California Judges’ Association Advisory Opinion 66 (2010).  The Mississippi Supreme Court recently reprimanded a judge for endorsing a political candidate on social media, in addition to other misconduct.  Commission on Judicial Performance v. Clinkscales (Mississippi Supreme Court June 9, 2016).  The judge had posted:  “Cast your vote in the Senate District 16 Special Election.  I will be voting for Angela Turner Lairy! . . .  Let’s not lose this seat!”  See also Inquiry Concerning Krause, 166 So. 3d 176 (Florida 2015) (30-day suspension without pay for a judge who used social media to ask her friends to help her judicial candidate-husband correct perceived misstatements by his opponent); In the Matter of Romero (New Mexico Supreme Court February 13, 2015) (permanent retirement of a judge who had endorsed candidates for public office on Facebook and continued to endorse them and post their campaign materials there after telling the Judicial Standards Commission he would stop).

The act of “liking” a campaign on Facebook, becoming a fan or “friending,” or the equivalent indication of support or approval of a candidate on any social media also constitutes an endorsement and, therefore, is prohibited.  See Massachusetts Advisory Opinion 2016-1; New Mexico Advisory Opinion Concerning Social Media (2016); New York Advisory Opinion 2015-121U.S. Advisory Opinion 112 (2014); ABA Formal Opinion 462 (2013).  See also Kansas Commission on Judicial Qualifications 2012 Annual Report (private cease and desist order for judge who “liked” a comment on a candidate’s Facebook page); Order of private reprimand (Kentucky Judicial Conduct Commission December 5, 2014) (private reprimand of a judge who “liked” the Facebook pages of lawyers and a judicial candidate and posted offensive comments about a lawyer on Facebook); Order of private reprimand (Kentucky Judicial Conduct Commission April 2, 2015 (private reprimand of a judge who “liked” the Facebook pages of lawyers, law firms, and candidates).

The prohibition on endorsements applies to judicial candidates as well as judges.  Thus, the Kentucky Judicial Conduct Commission publicly reprimanded a judicial candidate for “liking” a Facebook post that publicly endorsed a candidate for public office and making a contribution to a candidate.  In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).

At least 2 judicial ethics advisory committees have distinguished between social media “friending” of elected officials or individuals who are candidates and “liking” an election-related Facebook page, permitting the former and prohibiting the latter.  Noting many judges are friends in the real world with individuals who are running for office, the Utah committee stated that a judge may also be “friends” in the virtual world of social media with those candidates without violating the prohibition on endorsements.  Utah Informal Advisory Opinion 2012-1.  However, the committee warned judges to be careful about making any statements on the social media page that might create the appearance of an endorsement.  Moreover, noting many individuals who are candidates “have a Facebook page specifically designed to promote the individual’s candidacy,” the Committee advised that judges “may not be a ‘friend’ on that type of webpage, as that may constitute endorsement.”

Similarly, the Arizona committee stated that, if a state representative, for example, is running for re-election, a judge “may not be a ‘friend’ of the campaign committee’s Facebook page or ‘like’ that page, as such associations would indicate that the judge supports and is endorsing that individual’s reelection.”  Arizona Advisory Opinion 2014-1.  The committee noted that, if a judge clicks “like” on a Facebook page, her Facebook profile will thereafter indicate that she “likes” that other page.  However, the committee concluded that friending an elected state representative’s official Facebook page is not a prohibited endorsement (although it could raise a disqualification issue in a case in which the representative is a litigant, lawyer, witness, or other participant).

Most states have the prohibition on endorsements by judges and judicial candidates in their codes of judicial conduct, although some states allow endorsements of at least some judicial candidates at least at certain times.  Rule 4.1(A)(3) of the ABA Model Code of Judicial Conduct, for example, provides that a judge or judicial candidate shall not “publicly endorse or oppose a candidate for any public office,” while Rule 4.2(B)(3) allows a judicial candidate, including an incumbent judge running for re-election, “to publicly endorse or oppose candidates for the same judicial office for which he or she is running.”  The endorsement clause has survived constitutional challenge, most recently in Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016).