Recent cases

  • The California Commission on Judicial Performance publicly admonished a judge for (1) participating in a Facebook group called “Recall George Gascón,” referring to the county district attorney, and (2) posting tweets, re-tweeting content, and liking tweets by other users that contained partisan viewpoints on controversial issues, suggested bias against particular classes of people, and were “undignified and indecorous.”  In the Matter Concerning O’Gara, Decision and order imposing public admonishment (California Commission on Judicial Performance September 14, 2021).
  • Adopting the findings and recommendation of the Commission on Judicial Performance based on a stipulation, the Mississippi Supreme Court publicly reprimanded a judge and fined him $2,500 for making appearances or filing motions in 9 cases more than 6 months after assuming office.  Commission on Judicial Performance v. Watts (Mississippi Supreme Court September 9, 2021).
  • Adopting the findings and recommendation of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court suspended a judge without pay for 1 month for making sexist and misogynistic comments that reflected his religious beliefs to a male defendant charged with domestic violence.  In the Matter of Brister, Order (New Jersey Supreme Court September 16, 2021).
  • Based on the judge’s agreement, the Tennessee Board of Judicial Conduct suspended a judge for 30 days with pay for undignified and discourteous comments made in 2 cases on the same day; the judge was also ordered to complete a judicial ethics program addressing demeanor from the bench.  In re Hinson, Order of suspension (Tennessee Board of Judicial Conduct September 7, 2021).
  • The Texas State Commission on Judicial Conduct publicly admonished an appellate justice for, after a jury found a defendant guilty of murdering a little girl in a trial over which the judge had presided while still a trial judge, telling the defendant that he “should die in a locked closet.”  Public Admonition of Burns (Texas State Commission on Judicial Conduct August 19, 2021), appealed to a Special Court of Review.
  • Based on the judge’s consent, a settlement agreement, and a stipulated formal complaint, the Vermont Judicial Conduct Board publicly reprimanded a judge for using her position as assistant judge to approve and receive a $2,000 merit bonus, creating the appearance of impropriety.  In re Ramsey, Stipulated public reprimand with order (Vermont Judicial Conduct Board August 21, 2021).

More Facebook fails

Based on the report of the Board of Professional Conduct, the Ohio Supreme Court suspended a judge for 6 months without pay for communicating about 4 cases pending before him with a litigant on Facebook Messenger and on the phone.  Disciplinary Counsel v. Winters (Ohio Supreme Court August 18, 2021).  The Court stayed the suspension conditioned on the judge completing at least 3 hours of continuing judicial education on ex parte communications or use of social media by judicial officers, refraining from further misconduct, and paying the costs of the proceedings.

In the 1980’s, the judge had been Keith Blumensaadt’s probation officer.  In 2017, the judge presided as a judge over Keith’s criminal case with the agreement of counsel following his disclosure that he knew Keith.  On June 27, based on a plea agreement, Keith pleaded guilty to a felony count of unlawful possession of dangerous ordnance, a felony count of attempted possession of weapons under disability, and a misdemeanor count of attempted unlawful possession of dangerous ordnance.  The judge sentenced him to time served on the 2 felony counts.  On the misdemeanor count, the judge sentenced him to 180 days in the county detention facility suspended on condition that he not enter Put-In-Bay Township for 1 year unless escorted by the county sheriff’s office to remove his personal belongings. 

Sometime after conclusion of the criminal case, the judge and Keith became “friends” on Facebook.

Between July 22 and December 19, 2019, the judge and Keith exchanged ex parte messages on Facebook messenger about 4 cases over which the judge was presiding:  a drug possession case against a defendant whom Keith claimed had sold heroin to his daughter; Keith’s custody case with his ex-wife; a case in which Keith’s father and brother had obtained protection orders against him; and a criminal case against the other driver in a car accident in which Keith had been injured.  During this time, they also discussed personal and professional matters in several phone conversations.  The judge did not disclose the ex parte communications in any of the cases.

(The Facebook messages had numerous grammatical, spelling, capitalization, and punctuation errors that are not corrected in the summary below.)

For example, in a message via Facebook Messenger, Keith told the judge that Alberto Mendez had sold heroin to Keith’s daughter and requested that the judge not give Mendez a “bond he can make.”  The judge arraigned Mendez and released him on a recognizance bond.  A few days later, Keith messaged the judge, “I see Al Mendez moved in are neighborhood on 14th street, I can’t wait to get out of here.”

On May 20, 2019, the judge finalized the divorce of Keith and Michelle Blumensaadt and granted custody of their minor son, Axel, to Michelle.  On August 30, in a message via Facebook Messenger, Keith advised the judge that Michelle had agreed to transfer custody of their son to Keith.  In a message to the judge on September 5, Keith stated:

I stopped to say hello today, and I have a funny story to tell you about my son Axel, anyway Axel keeps riding his bike down to the court house everyday and I said don’t be in the parking lot it’s a busy place, he said okay So yesterday I went looking for him and he was at the court house again, so I ask him why do you keep going to the court house, and he said to see the judge Bruce Winters so I can tell him I want to live with you, so I can go to school!  I said what?  He said well I heard you talking to mom and he is the judge that has to sign the paperwork so I can go to school Here, so I went to tell him I want to live with you so I can get in school next week, I just cried, because he’s so smart and determined to go to school and live with me.  Anyway I picked up indigent form today to file motion and will file it Monday.  So watch for a kid on a red bike who is tracking you.  I told him not to go down there but I think he’s not listening to that, and I explained that there is a procedure we have to do, to enroll him in school.  I thought you would get a laugh out[.]

The judge replied:  “Yes he is!  That’s funny.  I’ll look for him and for sure talk to him if I see him.  I like his attitude.😊”

Between September 6 and September 30, the judge and Keith exchanged several private messages that included information relevant to Keith’s pending pro se motion for change of parenting time over which the judge was presiding.

For example, on September 7, Keith sent the judge a copy of a criminal judgment entry against Michelle and stated, “Just had to send this to you, Michelle stabbed me with a pen in 2016 and was ordered to take her bipolar meds and was charged with domestic violence, but if you let her tell the story I’m the one who’s on meds.”  Later that same day, in a reply to Keith’s message, the judge stated, “Interesting!”

On September 9, in a message via Facebook Messenger, Keith invited the judge and his family to a private dinner hosted by his brother Bill where oysters, crab, lobster, and ribeye would be served, saying, “Your my guest if your interested.”  The judge replied, “I don’t know what my schedule is tomorrow I’ll be in touch.”  On September 10, the judge declined Keith’s offer, stating, “I guess I really shouldn’t since you have a case pending in my court.  Thanks for asking.  Let get this done. . . .  Before your personal injury case gets filed.😊”

On September 30, in a message via Facebook Messenger, Keith told the judge:

By the way Michelle got a little huffy yesterday about Axel, because he won’t go to her house with her, and I told her he’s scared she won’t bring him back,,, should I bring him to hearing he wants to come and tell magistrate he wants to live with me.  He starts throwing up when she tells him she’s coming to pick him up and has anxiety attracts, and says he’s not going.  I think she has caused axel to be in-fear of her taking him away ,, It’s not good there, but she doesn’t see it, because she believes her lies.

On the same day, Keith sent the judge another message:

It seems Michelle doesn’t want to go to hearing and had attorney send over a agreement to sign, I’m going to have it gone over and everything looks good, I just don’t trust her.  She knows what Axel is going to say in court and it’s not good, so she just wants to see things my way as I said she would, I new she would, she’s lied about everything.

On September 25, in a message via Facebook Messenger, Keith advised the judge that he and Michelle had reached an agreement that would be filed soon.  Keith’s message stated:

Axel is happy with it, because she [Michelle] had to visit him here in Port Clinton, he refuses to go to her house and I don’t blame him, thank you for everything, I don’t think she understand what she had done to Axel mindset on past actions,,.  I’m overlooking a lot of her actions for Axel, because at the end of the day she is his mother and I don’t want him to hate her and I don’t want to hurt her legally, she deserves it but it’s not who I am, its easy to life to be irresponsible, and vindictive but it’s harder to turn the other cheek and move on!

The judge replied to Keith:  “Glad you have it worked out.”

There were additional Facebook Messenger communications between the judge and Keith about the case.  The judge did not disclose any of the communications to Michelle or her attorney.

In 2016, Keith’s father and brother, Todd Sr. and Todd Jr., had obtained civil stalking protection orders that required Keith to stay at least 500 feet away from them.  The orders were in effect until May 2021.

On November, 2019, at 8:22 p.m., in a message via Facebook Messenger, Keith stated to the judge, “Hey I have a question about my mom, when she passes and that protective order, call me when you get a chance please!”  On the same day at 9:09 p.m., the judge called Keith and spoke to him for 44 minutes.  During this call, the judge advised Keith to file a motion requesting that the protection orders be temporarily modified to allow Keith to attend his mother’s funeral even though Todd Sr. and Todd Jr. would also be present.  Subsequently, the judge and Keith exchanged numerous messages via Facebook Messenger and spoke on the phone about the declining health and subsequent death of Keith’s mother and modification of the protection orders.  The judge did not disclose any of the communications to Todd Sr., Todd Jr., or any of the attorneys.

For example, on December 18, at 4:48 p.m., in a message via Facebook Messenger, Keith asked the judge, “Any word on what’s going to happen with funeral[?]”  At 9:25 p.m., the judge replied, “A deputy will accompany you.  No need for consent, no need for a hearing and the Sheriff is onboard.”  Keith immediately replied, “You sure[?]  Thank you Bruce.”

On July 27, Keith was injured in a car accident.  The driver of the other car was Daniel Fishburn.  On September 9, Fishburn was charged with operating while under the influence, failing to maintain space between moving vehicles, and aggravated vehicular assault.  The judge presided over Fishburn’s criminal case.

Between September 9 and January 25, 2020, Keith and the judge exchanged multiple messages concerning Keith’s injuries and Fishburn’s criminal case.  The judge never disclosed the ex parte communications in the criminal case.

For example, on October 17, in a message via Facebook Messenger, Keith told the judge:

Then this guy who hit me wants to plead no contest to ovi felony, not a chance, he doesn’t want to admit guilty so he can get out of liability, over my dead body, [the prosecutor] should no better, I’m waiting to hear what him and [Keith’s attorney] have figured out on that yet, he blows twice over legal limit and admitted to drinking, I don’t think he has a change at jury trial, he’s been offered 1 ovi felony and 1 unasheered clear distance misdemeanor and diversion program, he should be happy with no jail time, but no, he wants his cake and eat it to.

On December 17, the judge granted the joint request for Fishburn to be admitted to the county prosecutor’s pretrial diversion program.  The judge set the matter for a plea change and diversion hearing on January 15, 2020.

On January 15, before Fishburn’s plea and diversion hearing, Keith said to the judge:

Bruce good morning.  I want you know, that I understand being in your position as a judge in a small community is a very hard job, trying to make everyone’s needs just, being put between difficult situations, but at the end of the day I still respect you and don’t dislike you in any way.  I’ve been in a lot of hard situations, and at the end of the day I don’t hold any remorse!  I still think you are great guy and I hope my case doesn’t change anything between us,, it’s a hard spot and it bothers me personally everyday, because I consider you a Good person!  And friend!!  It’s definitely a awkward situation my case, but I still like you, I can tell you don’t have conversations with me anymore and I understand!!!  I don’t have it in me, to not love and respect a good guy as yourself!  I’ve said to much, this dam case of mine has caused such problems in my life and don’t want my appeal to cause hard feeling!!  Dame I hate this whole Pib thing.

* * *
The Texas State Commission on Judicial Conduct publicly warned a judge for posting on Facebook support for judicial candidates, opposition to candidates for other offices, a negative comment about Scientology, and a meme about border crossings.  Public Warning of Baca Bennet and Order of Additional Education (Texas State Commission on Judicial Conduct August 16, 2021).  The Commission also ordered the judge to obtain 2 hours of instruction on racial sensitivity with a mentor.

During the 2018 election cycle, when she was not running, the judge made several posts to her Facebook page lauding the experience and/or qualifications of certain candidates for judicial office, defending those candidates against political attacks from others, or opposing the candidates’ opponents.

The judge posted about the campaign of Judge James Munford, including defending him against accusations that he was a “gun grabber” and a “RINO” and had abused his first wife decades before.  The judge also made negative comments about Judge Munford’s opponent’s voting record and urged the public to ignore the political attacks against Munford and to vote for him because of his superior experience and qualifications.

The judge also posted about the campaign of Judge Cynthia Terry, including posting about attending a “Meet and Greet Luncheon” hosted by Judge Terry, “liking” a post about the event, and sharing screenshots of Judge Terry’s campaign flyers.

The judge also promoted the campaign of Judge Alex Kim on her Facebook page, including sharing Judge Kim’s campaign materials and insinuating in a lengthy post that she had unique knowledge that the Kim’s opponent was unsuited for the position because he left “a baby in danger.”

In addition, the judge posted to Facebook the comment, “Robert Francis O’Rourke.  #fakemexican” about then-candidate for U.S. Senate, Beto O’Rourke.  The judge also remarked “Finally Gone!!!” about the loss in the primaries of State Representative Jason Vallalba and later responded with 2 laughing emojis to the comment, “I’m sure [Vallalba] will find a job, there are lots of local opportunities in both the hotel and food service industry.” 

The judge shared a link on Facebook to an article titled “Scientologist’s Facilities Closed After Police Find People Held Prisoner Inside,” with her comment, “Scientology is not a church.  It is an evil scam.”

The judge posted to her Facebook page a meme with an image of the Looney Tune character Wile E. Coyote reading a book with the title, “How to carry kids across the border . . . ,” followed by an image of Dora the Explorer, a Hispanic cartoon character, tied to a rocket and Wile E. Coyote attempting to light the fuse.  The judge removed the meme from her Facebook page soon afterwards and posted a retraction.

During her appearance before the Commission, the judge acknowledged that posting these materials on her personal Facebook page was inappropriate and stated that she regretted doing so.  The judge represented to the Commission that she has deactivated her personal Facebook page and will no longer participate in social media although she still maintains a campaign Facebook page that is run by a political consultant.

* * *

A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

Another Facebook fail and code comments

Adopting the recommendation of the Judicial Standards Commission, which was based on stipulations, the North Carolina Supreme Court publicly censured a former judge for inappropriate and sexual communications on Facebook with numerous women; a pattern of failing to diligently discharge his judicial duties in order to engage in conversations or physical encounters with women; and related misconduct.  In re Pool (North Carolina Supreme Court June 11, 2021).

On his Facebook page, the judge identified himself as the Chief District Court Judge in Marion, North Carolina.  His Facebook page was public so anyone could see his posts and comments.  He had thousands of “friends” on Facebook and frequently posted his own photos or comments or commented on others’ posts.

From November 2018 to May 2019, the judge, who is married, engaged in conversations on Facebook that ranged from inappropriate and flirtatious to sexually explicit with at least 35 women, many of whom were litigants or witnesses in matters pending in his district and some of whom appeared or worked in his court in their professional capacities.  The judge had ex parte discussions through Facebook with some of the women about pending proceedings.  The judge often asked for photographs of the women or shared photographs of himself.  The judge and some of the women also had telephone conversations, exchanged texts, and met, sometimes for sexual encounters.  The judge used the prestige of his office to assist some of the women, including using his position as Chief Judge to direct an attorney to assist a litigant with whom the judge was having a sexual relationship. 

After the judge exchanged inappropriate electronic communications and nude photographs with Ms. T., she attempted to extort him.  During the investigation of her extortion attempt, the judge misused the prestige of his judicial office to solicit assistance from local law enforcement and made material misrepresentations to the State Bureau of Investigation.

A comparison of his Facebook records and official reports showed that, when the judge was posting, commenting, and private messaging women on Facebook, he was often on the bench, although during times when he was not actively presiding in a case and his direct attention was not required.  The judge routinely sought to arrange personal meetings with women through Facebook and frequently took breaks and continued cases to have conversations or physical encounters with them.  Court personnel observed that the judge was frequently on his cell phone while on the bench, would often “disappear” during recesses and lunch breaks, and would continue or recuse from many cases for “very tenuous” reasons.

The judge made material misrepresentations to the Commission during its investigation.

The judge retired in December 2019.  In early October 2020, the judge was diagnosed with early-stage Frontotemporal Dementia, which can manifest itself in a lack of control of sexual impulses.  The judge agreed that, based on his misconduct and that diagnosis, he will not seek a commission as an emergency judge or a retired recall judge or attend judicial conferences or continuing judicial education programs.

The Court agreed with the Commission that censure was appropriate because the judge is no longer a sitting judge, has agreed not to serve again, had 18 years of distinguished service, and has expressed remorse.

* * *
In new Ethical Principles for Judges, the Canadian Judicial Council has included several comments regarding judges and social media.  For example, there are general warnings that “judges should exercise caution in their use of social media” and that “their social media activities should be undertaken in ways that avoid compromising public confidence in the judiciary.”  A comment reminds judges that:

Social media activities are subject to the overarching principles that guide judicial behaviour.  Judges should be aware of how their activities on social media may reflect on themselves and upon the judiciary and should be attentive to the potential implications for their ability to perform their judicial role.

The principles also suggest that a judge “may wish to inform family members of the ways in which their social media activities could reflect adversely on the judge.”

A comment states that “judges should avoid engaging in activities on social media that could reasonably reflect negatively on their commitment to equality.”  Noting that “judges’ communications and associations with others are commonly used as a basis for claims of lack of impartiality,” commentary directs judges who use social media to “exercise great caution in their communications and associations within these networks, including expressions of support or disapproval.”  Comments emphasize that social media communications are “more public and more permanent than many other forms of communication,” can “be re-transmitted beyond the originators’ control and without their consent,” and “can be shared, almost instantaneously, with a vast audience and may create an adverse reaction far beyond what one may have considered possible.”

Commentary also reminds judges that social media creates “greater opportunities” for others to try to communicate inappropriately with them and to try to influence them, requiring that judges “be cautious in their communications on social media relating to matters that could come before the court.”

Facebook fails

Reporting
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.

Deactivating
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.”

* * *
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.

More Facebook fails

Independent investigation

The Arizona Commission on Judicial Conduct publicly reprimanded a judge for discussing in a minute order a social medial post criticizing him, in addition to other misconduct.  Staggs, Order (Arizona Commission on Judicial Conduct November 17, 2020).

B.W. was a defendant in a criminal case.  B.W.’s spouse criticized the judge in a post on social media, and the judge’s wife brought it to his attention.  In a minute order in B.W.’s case, the judge discussed the post, described its alleged inaccuracies, and requested that it be corrected.  The Commission found that the judge’s review of the post was an improper independent investigation and that “his choice to respond to social media criticism in an official public record did not inspire confidence in the judiciary.”

Public support

Accepting an agreed statement of facts and recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for publicly supporting the teachers at her daughter’s school in litigation with the board of education by making repeated public comments about issues and individuals in person, by email, and on social media platforms in which she was publicly identified as a judge; providing legal information and advice to parents at the school; signing advocacy letters; speaking with members of the board of education; joining teachers’ union counsel outside the courtroom prior to a case conference; and executing an affidavit that was filed in the litigation.  In the Matter of Panepinto, Determination (New York State Commission on Judicial Conduct December 9, 2020).

The judge sits on the Eric County Supreme Court.  In March 9, 2017, confirming an arbitration award, a different judge on the same court directed the Buffalo City School District to immediately stop assigning supervisory, non-instructional duties to teachers at Buffalo City Honors School.  The judge’s daughter attended Buffalo City Honors School during the 2017-2018 school year.

In a contempt motion filed in September 2017, the Buffalo Teachers Federation alleged that the Board of Education was not complying with the order and judgment.  In a separate petition filed in February 2018, the teachers’ federation sought an injunction to prevent the transfer of 5.5 teachers from the school and to prevent 16 teachers’ aides from being hired to perform non-instructional duties.

In January 2018, the judge joined a Facebook group comprised of City Honors School parents who publicly supported the teachers’ opposition to the transfer of teachers.  The judge also communicated with parents in support of the teachers using email and Twitter.  The judge posted on Facebook:  “We can go to Court appearance.  I will find out when it is.”  Using email and social media platforms, the judge provided legal information and advice to parents who were sending letters to the board of education and the teachers’ federation.  On Facebook, the judge posted:  “FYI if letter hast [sic] gone yet – include phrase ‘irreparable harm’ and/or send separate [sic] letters as that is legal standard to stop teachers transfers at least in short term.”  By email, the judge stated:  “Has the letter been sent yet?  It needs to state there will be irreparable harm to justify Court ordering stay of lay offs set for February 27.  If already sent we can do second one and/or individual ones describing irreparable harm.”  On Twitter, the judge posted:  “Write short letters stating the ‘irreparable harm’ cutting teachers at CHS will cause to your children.  Students should write as well.  Post on Twitter & send to BPS & BTF!”

The judge publicly criticized City Honors School principal William Kresse on Facebook, posting:  “Let’s not kid ourselves our beloved IB school hired these aids [sic] To punish teachers who won at arbitration & in Court.  If Dr. Kresse didn’t hire these aids [sic], not a single teacher would be transferred.  100% Kresse decision.  Ask him Why?”  Also on Facebook, the judge characterized the proposed transfer of teachers as “pure retaliation” and stated, “We don’t need aides … napping in hallway.”

On or about February 1, in response to a Buffalo News editorial, the judge posted a Facebook comment that identified her as “Catherine Nugent Panepinto – Works at Elected New York Supreme Court Judge Nov, 2010.”  The judge stated that she did not know that Facebook settings would automatically identify her by her judicial title but conceded that she should have familiarized herself with Facebook protocols prior to posting the comments.

The judge posted on Facebook:  “FYI I met with Paulette Woods today.  She is the Central representative on School Board whose district includes City Honors …  I also had a similar positive conversation with [BBOE representatives] Hope Jay & Sharon Cottman & plan to talk w [BBOE representative] Jennifer M[ecozzi] tomorrow.  I think we’re making great progress & looking forward to meeting tomorrow.”

The Commission concluded that the judge violated the rules when she commented about cases in which she was not a litigant.  The Commission explained:

Rather than being circumspect and focusing narrowly on her direct personal interest in her daughter’s education, respondent generally advocated for and supported the CHS teachers.  She attended meetings and spoke critically of the school’s plan to transfer teachers.  In addition, respondent was publicly critical of the CHS principal and described the transfer of teachers as “pure retaliation” which detracted from the dignity of her judicial office.  Furthermore, respondent admittedly violated the Rule which prohibits a full-time judge from practicing law. . . .  In that regard, respondent improperly and repeatedly advised other CHS parents as to the specific language to include in letters in order to meet the legal standard for injunctive relief.

The stipulation stated that the judge invoked the prestige of her office “when her Facebook comment in response to an editorial regarding CHS identified her as a Supreme Court judge.” 

The Commission concluded that the judge’s conduct over these 3 months “was improper and went beyond appropriate action specifically concerning her personal interest in her daughter’s education.”  In mitigation, the Commission considered that the judge admitted that her conduct warrants public discipline and that her sole motivation was to protect the interests of her daughter.

* * *

A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

Social media direction and control

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

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

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

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

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

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

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

More Facebook fails

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

More Facebook fails

Based on the judge’s consent, the Tennessee Board of Judicial Conduct suspended a judge for 30 days without pay and publicly reprimanded him for sending inappropriate messages to women on social media platforms.  Re Young (Tennessee Board of Judicial Conduct October 5, 2020).  The suspension was held in abeyance provided no meritorious complaints are filed against the judge for any type of misconduct during the remainder of his current term.  The judge also agreed not to use a picture of himself in his judicial robe as a profile picture on any social media platform on which he is not conducting court business; to complete a judicial ethics program on social media; to recuse himself from all cases involving specific attorneys identified separately; and to refrain from similar misconduct.

The judge was pictured in his judicial robes in his profile picture on several social media platforms.  On those platforms, the judge sent messages “ranging from flirtatious to overtly sexual” to multiple women and solicited pictures from them.  The women included a legal professional employed at a law firm that conducts business in his court and a litigant who formerly had a child custody matter before him. 

Attorneys who litigated before him, especially in domestic relations matters, had had to seek advice from the Board of Professional Responsibility about whether to disclose to clients what they knew about his activities.  In at least one instance, a party used knowledge of the judge’s conduct to strategic advantage in a case.  The judge had had to recuse himself from a case after a party learned of his social media activities and asked him to step aside.

The Board found that a judge having sexual conversations and soliciting pictures while in his judicial robe would appear to a reasonable person to be coercive and that the judge’s inappropriate use of social media had created ethical dilemmas for attorneys who litigated before him.  The Board also stated that sending inappropriate messages on social media may interfere with a judge’s ability to preside over cases and that “inappropriate messages sent by a sitting judge to anyone, much less to those who have ties to the court system, do not inspire” confidence in the integrity and impartiality of the judiciary.

* * *
The Kentucky Court of Appeals remanded a medical malpractice case for the trial court judge to determine if her Facebook friendship with one of the defendants and that defendant’s connections to her judicial campaign were so extensive that her recusal was required.  Andress v. Lape (Kentucky Court of Appeals September 18, 2020).

Judge Kathleen Lape presided over a jury trial in a medical malpractice case brought against a hospital and several doctors.  The jury returned a verdict for the defendants.  The plaintiff filed a motion for a new trial that raised several recusal issues.  The judge denied the motion.

One of the recusal issues was the judge’s Facebook friendship with Dr. Donald Swikert, one of the defendants.  On appeal, the court of appeals explained:

The record is silent as to the extent of Judge Lape’s Facebook friendship with Dr. Swikert.  Are they simply Facebook friends who are only vaguely familiar with each other or are they neighbors who routinely socialize with one another?  While we doubt it is the latter, we do not have any information regarding the scope of the friendship.  Since we must look at the connections between Dr. Swikert and Judge Lape individually, as well as collectively, we cannot say for certain if Judge Lape should have disclosed this information or recused herself; therefore, we must reverse and remand for more information.

The plaintiffs had also argued that the judge should have disclosed that Dr. Swikert had contributed $200 to the judge’s election campaign and that the doctor and his wife had co-hosted a fundraiser for her campaign.  The court stated that, “taken individually, the $200 campaign contribution would not require Judge Lape to recuse herself” and “Dr. Swikert’s participation in the fundraiser, taken alone, would not require recusal,” noting that it was not clear that the doctor was  a co-host at all and that “there were over 70 other co-hosts.  This was clearly not an intimate affair.”  However, the court stated that, on remand, the judge should analyze the campaign issues “collectively” with the Facebook issue.

* * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

“An extra ‘remember me:’”  Serious risk of actual bias on Facebook

Finding that “the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation,” the Wisconsin Supreme Court held that a serious risk of actual bias had been created in a child custody dispute when, while his decision was pending following a contested hearing, the trial judge accepted a Facebook “friend request” from the mother; she interacted with him, including “liking,” “loving,” or commenting on at least 20 of his Facebook posts; and she “shared” and “liked” several third-party posts about domestic violence, which was an issue in the case.  In re Paternity of B.J.M., 944 N.W.2d 542 (Wisconsin 2020).  The Court affirmed the decision of the court of appeals reversing the trial judge’s denial of a motion for reconsideration of his decision in the mother’s favor and remanding the case with directions that it proceed before a different judge.

5 years after Timothy Miller and Angela Carroll stipulated to joint legal custody and shared physical placement of their minor son, Carroll filed a motion seeking sole legal custody, primary physical placement, child support payments, and a change in residence.  She alleged that Miller engaged in domestic violence against her and failed to adequately parent and discipline their son.  Miller opposed the motion and disputed the allegations of domestic violence.

On June 7-8, 2017, Judge Michael Bitney presided over a highly contested evidentiary hearing that included 15 witnesses.  On June 16, the parties filed briefs.

3 days after the briefs were filed, Carroll sent the judge a “friend request” on Facebook.  The judge “accepted” Carroll’s request.

On July 14, the judge issued a written decision in favor of Carroll.

During the 25 days between the judge’s acceptance of Carroll’s friend request and his decision, Carroll “engaged with and ‘reacted to’ at least 20” of the judge’s Facebook posts.  16 of her reactions were “likes” to prayers and Bible verses that he posted.  She “loved” one of his posts reciting a Bible verse and a second regarding “advice” to children and grandchildren.  In response to 2 of his posts about his knee surgery, she posted:  “Prayers on a healthy recovery Judge!!” and “Hope u get some rest and feel better as the days go on.”

In addition, Carroll posted on her Facebook page about domestic violence.  She posted that she was “interested in” attending a “Stop the Silence Domestic violence awareness bike/car Run.”  She “liked” a third-party post related to domestic violence and reacted “angry” to a third-party post entitled, “Woman dies two years after being set on fire by ex-boyfriend.”  She “shared” a third-party post related to domestic violence.

The same day as the judge’s decision, Carroll posted on her Facebook page:

My boys and a [sic] I have been given a chance at greatness, peace, and safety.

The Honorable Judge has granted everything we requested.  I’m overwhelmed with emotions and as bitter sweet as this is, we will have better from here on out. . . .

Viewing that post, the guardian ad litem appointed to the case discovered that Carroll and the judge were Facebook friends and immediately told Miller’s counsel.

Miller filed a motion for reconsideration of the judge’s decision in favor of Carroll.  The judge confirmed his Facebook friendship with Carroll, but denied the motion, asserting that he had no bias and that no “reasonable person in the circumstances of Mr. Miller or others . . . would seriously call into question the Court’s objectivity or impartiality.”  The judge emphasized that he “did not like any posts, respond to any posts, or conduct any communication ex parte or otherwise with Ms. Carroll, other than simply accepting the Facebook friendship request.”  He also claimed that when he accepted Carroll’s friend request he had already “decided how [he] was going to rule, even though it hadn’t been reduced to writing.”  The judge did not deny seeing Carroll’s reactions, comments, or posts on Facebook.

Although noting that it presumed that the judge acted fairly, impartially, and without prejudice, the Court concluded that the father had “rebutted this presumption by showing ‘a serious risk of actual bias.’”  The Court considered:  “(1) the timing of the Facebook friend request and Judge Bitney’s affirmative acceptance; (2) the volume of Carroll’s Facebook activity and likelihood Judge Bitney viewed her posts and comments; (3) the content of the Facebook activity as it related to the context and nature of the pending proceeding; and (4) Judge Bitney’s lack of disclosure.”

With respect to the timing of the Facebook friendship, the Court explained:

Although Judge Bitney had “thousands” of Facebook friends, Carroll was not an established “friend.”  Instead, she was a current litigant who requested to be Judge Bitney’s friend only after she testified at a contested evidentiary hearing in which he was the sole decision-maker.  Judge Bitney had presided over the case since August of 2016; yet, Carroll friended him after he heard the evidence and the final briefs were submitted, but before he rendered a decision.  The timing of the friend request implied that Carroll wanted to influence Judge Bitney’s decision on her motion to modify legal custody, physical placement, and child support.

The Court emphasized that the judge had taken “the affirmative step of accepting Carroll’s ‘friend request’ prior to issuing a written decision on her motion” and that, by accepting the request, the judge “accepted access to off-the-record facts that were relevant to the dispute, namely information regarding Carroll’s character and parental fitness.”  The Court noted that, “in an affidavit filed with the motion for reconsideration, Miller’s sister asserted that Carroll made a ‘purposeful switch in [her] Facebook persona to support her position in the custody dispute,’ including changing her pictures and posts ‘from party type pictures and posts to family pictures and posts about children and family.’”  The Court concluded that “Carroll’s request, and Judge Bitney’s acceptance, put Carroll in a different position than Miller and caused an improper asymmetry of access.”

With respect to the likelihood that the judge would have seen Carroll’s Facebook activity, the Court noted that Carroll had engaged with and “reacted to” a significant number of the judge’s Facebook posts and that the judge would have received a Facebook notification for each of Carroll’s reactions and comments.  It also noted that the judge could have but did not deny seeing Carroll’s reactions, comments, shares, and reactions.  The Court recognized that the record did not include conclusive evidence that the judge read any of Carroll’s posts, but emphasized that “evidence to the contrary is notably absent.”

With respect to the social media contacts in the context of the litigation, the Court noted that Carroll and Miller had the same opportunity to portray themselves in the best light at the hearing but that “Carroll was provided with additional opportunities to do this for 25 days through her access to Judge Bitney via Facebook.”  It explained

The Facebook activity, including 18 “reactions” and two comments, was relevant to the decision-making process in a proceeding like this one, where Carroll’s character, fitness, and credibility were paramount.  Carroll was allowed the opportunity to give Judge Bitney additional information about herself and an extra “remember me” almost 25 different times during the time period when the matter was under advisement, all unbeknownst to Miller.  By reacting to and engaging with Judge Bitney’s posts, Carroll was effectively signaling to Judge Bitney that they were like-minded and, for that reason, she was trustworthy.  She was conveying to him off-the-record information about her values, character, and parental fitness — additional evidence Miller did not have the opportunity to rebut.  Under a “realistic appraisal of psychological tendencies and human weaknesses,” this off-the-record information about Carroll, created a serious risk of actual bias. . . .

The Court also stated that “a portion of Carroll’s Facebook activity was related to her main allegation against Miller at the contested hearing:  domestic violence” but that, “unlike the information presented at the hearing, Miller was unaware that Judge Bitney had access to this off-the-record information.  Had Carroll sent Judge Bitney a letter containing a domestic violence article, which he then read, he undoubtedly would have had to disclose that information to the parties.”

Finally, the Court emphasized the judge’s failure to disclose “at any point, in any way or form.”

Judge Bitney could have initially ignored or denied Carroll’s friend request and disclosed the request to the parties.  He could have also disclosed the Facebook friendship when he received notification of Carroll’s reactions to his posts, unfriended Carroll on Facebook, or changed his security settings to hide her posts from appearing on his News Feed.  Instead, Judge Bitney failed to disclose the friendship or other Facebook activity, and the friendship was discovered only after Judge Bitney issued his decision.  Because of Judge Bitney’s lack of any means of disclosure, Miller was unable to review the interactions between Judge Bitney and Carroll and have an opportunity to refute what Judge Bitney might have seen Carroll post or share.

Thus, the Court held:  “The totality of the circumstances and the extreme facts of this case, viewed objectively, rise to the level of a serious risk of actual bias, which rebuts the presumption of Judge Bitney’s impartiality.”  The Court also held that, “the serious risk of actual bias is a structural error” and, therefore, that the judge’s decision should be reversed and the matter assigned to a different judge on remand.

Although the Court applied the “serious risk of actual bias” that is the constitutional standard from Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), the factors identified by the Court are also relevant to an “appearance of impartiality” analysis under the code of judicial conduct; if the circumstances of a case are significant enough to require disqualification under the due process clause, they would also raise enough reasonable questions to require disqualification under the lower threshold of the code.

 

More Facebook fails and advice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *
A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.