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.

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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.

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

“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.

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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.”

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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).

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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.

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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.

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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.”

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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.

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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.”

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

 

Virtual, personal campaign solicitation

In response to an inquiry from a judicial candidate, the Florida Judicial Ethics Advisory Committee issued an opinion addressing the new judicial campaign fund-raising methods necessitated by “social distancing, self-quarantine requirements, and other requirements in view of the COVID-19 pandemic.”  Florida Advisory Opinion 2020-9.

The candidate asked 2 questions about virtual events:

  1. May a judicial candidate appear on a computer or TV screen during a video meet and greet or video fundraiser while a donation button appears on the screen?
  2. May a judicial candidate appear on a computer monitor for a virtual fundraiser and can a donation button appear if the candidate leaves the screen temporarily, and then the button disappears when the judicial candidate reappears on the screen?

In response, the committee emphasized that “the same principles applicable to in-person campaign events and activities are applicable to virtual campaign events and activities.  Specifically, a judge or judicial candidate may not in any way take part in the solicitation of campaign contributions.”

The committee concluded that a judicial candidate may appear on screen during a virtual fund-raiser sponsored by the candidate’s campaign committee – as long as there is no donation button on the screen. The committee explained that allowing a candidate appear when a donation button is also on the screen would be the same as “permitting a member of the committee of responsible persons to hold up a donate sign, while the judicial candidate was addressing potential supporters at an in-person campaign event or activity.”

Further, the committee advised, a candidate must leave a virtual meeting before the campaign committee asks for contributions and “may not come back to the virtual meeting after the ask.”  It explained:  “The candidate should leave the virtual meeting when the solicitation occurs, so as to avoid the impression which a reasonable person may draw that the solicitation was being made by the candidate.”  To “more clearly eliminate concerns over the appearance of improper soliciting,” the committee added that the candidate’s departure from the virtual meeting should be announced because “simply leaving a virtual meeting is not always that easily noticed by those who continue to participate.”

The candidate also asked the committee 2 questions about telephonic events:

  1. May a committee of responsible persons solicit donations for a judicial candidate during a telephonic campaign event if they are in another room other than the judicial candidate and the judicial candidate temporarily leaves the event during the request?
  2. May a judicial candidate work with a committee of responsible persons to do introductions telephonically and once the judicial candidate leaves the conversation may members of the committee solicit support and/or donations?

The committee stated that a candidate may appear during a telephonic campaign event sponsored by the candidate’s campaign committee but must leave the event before the committee asks for contributions, the departure must be announced, and the candidate may not come back to the event after the ask.

Finally, the committee prohibited a candidate from making introductions during a telephonic campaign event before leaving the conversation to allow members of the committee to make the solicitation.  The committee explained that solicitation method is a “’transparent attempt to avoid a “personal” solicitation.  It remains solicitation by the candidate but done with a wink and a nod.  The presence of the candidate in the conversation continues.  It is as if the candidate is looking over the shoulder of the solicitor.’”  The committee quoted Wisconsin Advisory Opinion 1997-7.  The committee did add that a candidate may advise or give direction to a member of the campaign committee about “persons from whom to solicit contributions, without otherwise being present during the solicitation.”

The Florida code of judicial conduct provides:

A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.

The prohibition on personally soliciting contributions is similar to Rule 4.1A(8) in the ABA Model Code of Judicial Conduct.  The U.S. Supreme Court rejected a First Amendment challenge to the prohibition in Williams-Yulee v. The Florida Bar, 575 U.S. 433 (2015).  The prohibition on personally soliciting publicly stated support was eliminated from the model code in the 2007 revisions.

Yelp, “likes,” and judicial prestige

In a formal opinion, the California Judges Association Judicial Ethics Committee advised that, with qualifications, a judge may (1) write a review on a crowd-sourced site, such as Yelp and (2) use the “like” function on a social networking site.  California Judges Association Formal Opinion 78 (2020).

For purposes of its analysis, the California committee defined “footprint” in the context of social media:  “what others can see on the site as a result of the contribution and who can see it.”  The committee explained that, even when “the content could be perceived as advancing the interest of another, if the footprint does not identify the user with any particularity” as a judge, the prestige of office “would not be implicated.”

As an example, the committee applied its analysis to Open Table, a site used to make reservations at restaurants that includes user reviews of the restaurants.  It explained:

By default, reviewers are identified by their first name, the first initial of their last name and their city.  A posting by “William S., a diner in SF,” gives you so little identifying information that there is no way to connect that review with any specific individual.  Assuming William S. is a judge, nothing about being identified in that manner could be said to lend the prestige of the judicial office to that restaurant.

Would a review by William S. advance the interest of another?  Possibly yes.  But Canon 2B(2) does not read:  A judge shall not in any manner, including any oral or written communication, advance the pecuniary or personal interests of the judge or others.  Rather it reads:  “A judge shall not lend the prestige of judicial office or use the judicial title in any manner, including any oral or written communication, to advance the pecuniary or personal interests of the judge or others.”

(The analogous provision in the current version of the American Bar Association Model Code of Judicial Conduct is Rule 1.3 and states:  “A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”)

In addition, the committee noted that a review on a third-party site, such as Yelp, is written not necessarily to benefit the business but to provide information to other users.  Therefore, the opinion stated, a review on Yelp is more like a book review for a journal, which judges are allowed to write, than a laudatory letter to a business that could be used on its website, which judges may not write.

The committee noted that the footprint could be different on a site, such as Trip Advisor, that allows the user to select a username if the judge’s choice includes the judicial title or is readily associated with the judge.

The committee concluded that, before posting a review on a crowd-sourced site, a judge should consider:

1) How likely is it that a reader be able to identify the post as being written by a judge? 2) Where will the post appear? 3) Is there a reasonable possibility the business being reviewed could identify who the post is from and that person’s position? 4) How detailed is the review? and, 5) Who are you writing the review for?

Whether a judge can hit the “like” or thumbs-up icon on Facebook or other social media sites depends on where the icon is, the committee advised.

If a judge “likes” an establishment on its Facebook page, the committee explained, “the only thing that will show up on the establishment’s page is an addition to the number of ‘Likes’ the establishment has received,” not the judge’s username.  The “like” will not appear on the judge’s Facebook page, and the judge’s friends will not receive any notice that the judge has clicked “like.”  The committee noted that the judge’s “likes” will be listed on the judge’s profile so whether others can see them depends on what privacy settings the judge has implemented, with the most restrictive being “only me,” the most open being “public,” and several settings in between.  The committee concluded:

  • If only the judge can see the judge’s “likes,” the judge would not be lending the prestige of the judicial office to further the establishment.
  • If anyone can see the judge’s “likes,” Canon 2B(2) “could very well be implicated.”
  • If only “friends” can see the “likes,” whether the rule is implicated depends on how many friends the judge has and what their relationships is.
  • If only a judge’s close friends and relatives can see the judge’s “likes,” Canon 2B(2) is probably not violated.

If a judge “likes” a comment on someone else’s page or a comment made on the judge’s homepage, the committee advised that Canon 2B(2) could be violated if the judge uses their “true name” or a pseudonym that others know belongs to the judge because whether others can see the “like” depends on the privacy settings of the original poster, not the judge.  However, the committee stated, “if the only people who are aware of the pseudonym are family and close friends there may not be any problem.  Canon 2B(2) doesn’t prevent a judge from telling a friend that they like a particular restaurant, book or movie.”

However, the committee also cautioned:

The problem with online interactions of that sort is that that they are generally much broader than face to face encounters.  [A judge] may be commenting for the benefit of one individual, but [the] comment is going to be potentially shared with everyone that individual is connected with, and conceivably, everyone those people are connected with.  Moreover, anyone who sees the “Like” can access [the judge’s] page by clicking on [the judge’s] username.  If [the judge’s] privacy settings don’t limit the information that others can see, such as [the judge’s] own posts and profile information, the probability that others can identify [the judge] as a judge increase.

The committee also noted that “likes” are more widely disseminated on Twitter and Instagram and, therefore, there is a greater likelihood of the judge’s identity being ascertained on those platforms.

The committee emphasized that the code prohibits certain types of conduct online regardless whether the user can be identified as a judge:  “A judge may not engage in such conduct, period.”  The committee stated that “hitting the thumbs up symbol or the heart symbol” because something is interesting can reasonably be “perceived as an explicit endorsement of the content,” and, therefore, if subject to judicial discipline if direct advocacy of the content by a judge would be inappropriate.

“Liking” an offensive post could cast reasonable doubt on the judge’s capacity to act impartially and could demean the judicial office.  There simply is no place for judges engaging in that type of conduct on an inherently public platform.  Indeed, judges have been disciplined for posting and sharing links to posts that were perceived as racist and offensive.

Further, the committee stated that the prohibitions on judges engaging in certain political activity apply even when the judge is not using the judicial title or might not be otherwise be identifiable as a judge.  “Although the prohibitions do not apply to private comment and only to public endorsement or opposition, “social network platforms are, by their very nature, public,” the committee cautioned.

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

Another Facebook fail

Based on an agreement, the Tennessee Board of Judicial Conduct publicly reprimanded a  judge for sharing partisan posts on Facebook.  Lammey (Tennessee Board of Judicial Conduct November 15, 2019).  The judge also agreed to complete, either in person or online, a judicial ethics program or other educational program addressing ethical issues and the use of social media; to refrain from making any substantially similar comments or disseminating any substantially similar social media posts; and to keep his social media platforms on the private setting.

The judge shared on his Facebook accounts images that, the Board found, were partisan and clearly violated the code of judicial conduct.  The images were about issues such as the credibility of certain federal agencies, professional athletes kneeling during the national anthem, the effect of undocumented immigrants on the economy, opposition to certain positions in the Democratic party platform, bias in favor of then-presidential candidate Donald Trump and opposition to then-presidential candidate Hillary Clinton, the Black Lives Matter movement, media bias, fatal shootings by police officers, anti-Jihadist sentiment, transgender bathrooms and boys in girl’s locker rooms, and undocumented immigrants voting in Virginia.

The Board found that “after a complete and thorough investigation and under the limited and specific facts of this case, . . . there is no proof that [the judge] displayed any actual bias, prejudice, or impartiality toward any litigant that appeared before [him] . . . .”  However, the judge acknowledged that reasonable minds could easily have perceived “the dissemination of these types of articles and images on [his] social media platform” as prejudice or bias.

Screenshots of the Facebook posts shared by the judge were submitted by the organization Latino Memphis with a complaint in response to a newspaper article titled, “Memphis Judge Posts Facebook link to Holocaust denier’s Essay calling Immigrants ‘Foreign Mud.’”  The article was based on an interview the judge gave to a newspaper reporter about his policy of requiring undocumented immigrants to report to U.S. Immigration and Customs Enforcement as part of probation.  The article references an essay the judge shared on Facebook by David Cole, titled “Stop with the Golems, Already.”  The judge’s post commented, “interesting read . . . some four-letter words though.”  Cole, who is Jewish, argued that Jewish Americans “should not bring in people who want to do them harm,” saying, “In a perfect world, these rabbinical Rain Men would finally get the f*** over the Holocaust and end their war of hostility against the west.”  The Memphis Bar Association also filed a complaint based on the widespread media reports about the judge’s posts and his methods of dealing with immigrants.

The Board stated that any issues about the judge’s treatment of undocumented immigrants would be resolved by the  Court of Criminal Appeals.  The Board’s letter noted that it was “abundantly clear” that the judge had not written the essay; Cole “does not describe all immigrants as ‘mud,’” just those who want to do Jewish people harm; and its investigation revealed that Cole was not a Holocaust denier.  The Board also concluded that there was no proof that the judge made statements that were anti-Semitic, racist, or anti-immigration.

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

More Facebook fails

In May 2019, the New York State Commission on Judicial Conduct filed a complaint alleging that a judge had posted on “his Facebook account a picture of a noose with the annotation, ‘IF WE WANT TO MAKE AMERICA GREAT AGAIN WE WILL HAVE TO MAKE EVIL PEOPLE FEAR PUNISHMENT AGAIN.’”  The post was viewable by the public.  The judge’s Facebook account was under his name, and he had approximately 121 Facebook friends.

The judge and the Commission stipulated that the image and statement “conveyed and/or appeared to convey racial and/or political bias” and, therefore, that the judge had “failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The judge resigned, agreed not to seek or accept judicial office in the future, and waived confidentiality to the limited extent that the stipulation can become public; the Commission concluded the proceeding.  In the Matter of Canning, Decision and Order (New York State Commission on Judicial Conduct September 12, 2019).  The post was attached as an exhibit to the complaint, which is attached to the stipulation.

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The Chief Justice of the Kentucky Supreme Court disqualified a trial judge from a lawsuit brought by the state Attorney General against the state Secretary of Labor because the judge had “liked” a Facebook post supporting the Attorney General’s campaign for governor.  In re Commonwealth of Kentucky, ex rel. Beshear and Jefferson County Teachers Association v. Dickerson (Kentucky Supreme Court September 27, 2019).

The judge was presiding over a suit brought by Andy Beshear the state Attorney General and a county teachers association seeking an injunction against subpoenas the Secretary of the Kentucky Labor Cabinet had issued to several school districts for information regarding teachers who had participated in “sick-outs” during the 2018 and 2019 legislative sessions.

Beshear is also the Democratic nominee for governor, opposing incumbent Governor Matt Bevin.  The judge liked a post in which a state representative said that he was “honored to sign a pledge card to vote for the Beshear/Coleman ticket in November.”  The Labor Secretary filed a motion to disqualify the judge based on that “like.”  The judge denied the motion; the Labor Secretary then invoked a Kentucky procedure that allows the Chief Justice to immediately review and decide whether grounds exist to appoint a different judge for the case.

The Chief Justice agreed with the Labor Secretary’s argument that “Governor Bevin is effectively a party to the lawsuit because ‘the Attorney General brought this lawsuit against Governor Bevin’s administration, and the Attorney General frequently promotes the lawsuit as part of his campaign for governor.’”

Noting several reprimands for similar conduct by the Judicial Conduct Commission, the Chief Justice concluded that the judge’s “liking” of a Facebook post supporting Beshear’s campaign was a per se violation of the code of judicial conduct.  The Chief Justice also stated that the fact that the judge “also ‘liked’ posts supportive of Governor Bevin’s campaign or of other Democratic and Republican candidates does not . . . right the wrong.  In fact, those ‘likes’ constitute additional violations . . . .”  The Chief Justice acknowledged that the Labor Secretary did not allege and there was nothing in the record to indicate that the judge had explicitly endorsed Beshear’s campaign or that he was biased against Governor Bevin or the Labor Secretary.  The Chief Justice also expressed his conviction that the judge “would preside over this case, as he has in so many other cases, in a completely fair, neutral, and unbiased manner.”  But the order emphasized that the standard for disqualification does not require actual proof of bias but simply circumstances that raise reasonable questions about the judge’s impartiality.  Thus, the Chief Justice held:  Given that the judge’s “‘like’ may reasonably be perceived as a public endorsement of a candidate’s campaign, that the candidate is a party in this case, and that this case involves a central issue in that candidate’s campaign, this is one such circumstance.”

The Chief Justice added:

This case should serve as a cautionary tale to all Kentucky judges who use social media.  As the Judicial Ethics Commission wisely admonished in its 2010 opinion, these services are “fraught with peril” for judges and should be used with extreme caution.  While judges are not ethically prohibited from using social media, their use is subject to the Code of Judicial Conduct in the same manner as other extrajudicial activities.  Judges should review their social-media presence to ensure it does not violate the Code of Judicial Conduct and should act prudently when “liking” pages, posts, or tweets or otherwise interacting with other users on social media.

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

More than a Facebook fail

Based on the findings and recommendation of the Judicial Conduct Commission, the Utah Supreme Court suspended a judge for 6 months without pay for (1) losing his temper with the clerk of court and using his authority to seek her removal from the premises; (2) “seemingly shirty and politically charged comments to a defendant in his courtroom;” and (3) a Facebook post that was critical of then-presidential candidate Donald Trump.  In re Kwan (Utah Supreme Court May 22, 2019).

(1) In February 2017, after learning that an administrative staff member had been promoted without his involvement, the judge confronted the Clerk of Court in a manner that multiple witnesses described as “angry,” “screaming,” and “intense.”  A short time later, the judge threatened in a notice for disciplinary action to put the Clerk of Court on unpaid suspension pending termination and directed that she be escorted from the premises in an e-mail that recipients understood to be a judicial order, in part, because it included a signature block.

The Court recognized that even “attempting his or her best efforts,” a judge might “fail to handle an administrative matter with the highest degree of patience and courtesy.”  However, it concluded, the judge had acted “well outside the bounds of any acceptable range of behavior,” noting that following his “outburst” he had inappropriately attempted “to use the judicial office to impose severe consequences” on a court employee.

(2) In January 2017, in an exchange during a hearing with a defendant who had failed to pay his fines, the judge “appeared to demean the defendant and included political commentary regarding President Trump’s immigration and tax policies:”

Judge:              So, what happened with your fine payments?
Defendant:      So, I, just, live paycheck to paycheck . . . .
Judge:              Ok.  So, when you set up the pay plan you were hoping you would have the money and it didn’t pan out that way?
Defendant:      And I did not call, but I plan on when I get my taxes to just pay off all my court fines, because I cannot end up in jail again for not complying.
Judge:  You do realize that we have a new president, and you think we are getting any money back?
Defendant:      I hope.
Judge:              You hope?
Defendant:      I pray and I cross my fingers.
Judge:              Ok.  Prayer might be the answer.  ‘Cause, he just signed an order to start building the wall and he has no money to do that, and so if you think you are going to get taxes back this year, uh — yeah, maybe, maybe not.  But don’t worry[,] there is a tax cut for the wealthy so if you make over $500,000 you’re getting a tax cut.  You’re right[] there[,] right?  Pretty close?  All[]right, so do you have a plan?  Other than just get the tax cut and pay it off?

Noting the judge’s contention that he “intended to be funny, not rude,” the Court stated:  “It is an immutable and universal rule that judges are not as funny as they think they are.  If someone laughs at a judge’s joke, there is a decent chance that the laughter was dictated by the courtroom’s power dynamic and not by a genuine belief that the joke was funny.”  The Court noted that the judge had been publicly reprimanded in 2005 for telling an attorney that he seemed to be raising the “Clinton defense,” a reference to President Clinton.  In re Kwan, Order of Reprimand (Utah Supreme Court November 1, 2005).  Thus, the Court concluded, the judge’s “in-court political comment regarding President Donald Trump” continued a pattern of behavior and demonstrated “an ongoing failure to exercise appropriate judgment and restraint when making statements during judicial proceedings.”

(3) During 2016, the judge repeatedly posted comments and shared articles on his Facebook and LinkedIn accounts regarding then-presidential candidate Donald Trump.  On September 26, the night of the first presidential debate between Trump and Hillary Clinton, the judge wrote:

Contradictory:  person who got rich by not paying people for their work but complains about NATO not paying their fair share.
Food for thought:  If a person tries to show their ties to a community by talking about their investments and properties and not about the people of the community, it speaks to that person’s priorities.
Quick question:  Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of?  What does that say . . . about your business practices?
Wish she said:  “Donald, I’m used to having a man interrupt and dismiss me when I speak because egotistical men hav[e] been trying to do that to me for my entire career.”

The judge conceded that his comment about the IRS audits violated the code of judicial conduct and was not protected constitutional speech because it expressly criticized a specific political candidate.  The Court explained that, although the judge’s “comments addressed a candidate for national political office, and Judge Kwan may not decide national-scale issues as a justice court judge, those issues may still bear, or appear to bear, in some respects on questions that arise in his courtroom.  Or cause those who disagree with Judge Kwan’s politics to believe that they will not receive a fair shake when they appear before him.”  The Court emphasized that its primary concern was not that the judge “voiced his views on a range of political issues via his criticisms of Donald Trump” but that he “implicitly used the esteem associated with his judicial office as a platform from which to criticize a candidate for elected office.”  It explained:

Fulfillment of judicial duties does not come without personal sacrifice of some opportunities and privileges available to the public at large.  And as a person the public entrusts to decide issues with utmost fairness, independence, and impartiality, a judge must at times set aside the power of his or her voice—which becomes inextricably tied to his or her position—as a tool to publicly influence the results of a local, regional, or national election.

The Court noted that the judge’s Facebook account was “private,” but that the judge did not argue that that privacy setting exempted his comments from regulation, explaining that the judge had not disclosed how many friends had access to his Facebook account, did not suggest “that those individuals would not share his comments or postings more widely,” and acknowledged that “his posts [might] be reposted by his friends.’”

Following the presidential election, the judge continued to post comments and articles regarding Trump and also posted comments or shared articles on other topics including immigration, gun violence, and voter participation.  The Court gave “illustrative examples—not a comprehensive recitation” of the posts, noting his posts regarding Trump “were laden with blunt, and sometimes indelicate, criticism.”

On November 8, the judge wrote a lengthy post on voter participation that opened: “Dear Generation X and Millennial Voters, So many people have tried to convince you of the importance of your participation in this year’s election. . . .  Let me join in the effort . . . by giving you the cold, hard truth:  You have to vote to stop your elders from screwing up your future!  What kind of future do you want?  Want help with your student loan debt?  Want affordable tuition?  Affordable health insurance? . . .  Grab a friend and Go Vote.”

3 days after the presidential election, the judge remarked, “Think I’ll go to the shelter to adopt a cat before the President-Elect grabs them all . . . .”

The day President Trump was inaugurated, the judge commented, “Welcome to governing.  Will you dig your heels in and spend the next four years undermining our country’s reputation and standing in the world? . . .  Will you continue to demonstrate your inability to govern and political incompetence?”

On February 13, the judge posted, “Welcome to the beginning of the fascist takeover.  [W]e need to . . . be diligent in questioning Congressional Republicans if they are going to be the American Reichstag and refuse to stand up for the Constitution, refuse to uphold their oath of office and enable the tyrants to consolidate their power.”

The judge argued that the Commission could not “regulate speech addressing social or political issues or ‘public officials in general,’” but only speech that “expressly criticizes or praises” a specific political candidate.  The judge acknowledged that his post-election statements about Trump were “direct, critical, and strident” but contended that they were not about a candidate for office and were “synonymous” with his “views on issues such as racism, civil rights, the plight of refugees, and constitutional limits on the executive branch.’”

The Court held that it could not resolve the “interesting and important constitutional issues” raised by the judge because he had not challenged the code restrictions on speech in a declaratory judgment action before violating them as required by the “contemporaneous constitutional objection requirement” it has imposed in previous cases.  The Court has held that “a judge may not raise a constitutional challenge for the first time in a judicial disciplinary proceeding” but must comply with “the law as it exists at the time” while challenging it in other proceedings.  Otherwise, the Court explained, judges may “appear to consider themselves above the law,” undermining public confidence in the judicial system.

The Court also concluded that accepting the judge’s constitutional contentions would not change the outcome of the case because the judge’s post referring to IRS audits and the judge’s other misconduct “amply justify” a 6-month suspension without pay.  The Court gave “significant weight” to the 2 letters of education the judge had received from the Commission, the 2 public reprimands he had received from the Court, and the 2 advisory opinions he had asked for and received that “offered substantial guidance” to him on inappropriate political commentary.  The Court held that a suspension of less than 6 months “would fail to adequately address the degree to which Judge Kwan has varied from our judicial code, the repeat nature of Judge Kwan’s conduct, his disregard of the specific guidance and former discipline he has received, and the importance of the principles his conduct has trampled,” noting “every time a judicial officer engages in misconduct, he or she spends the goodwill of the judiciary as a whole” and “readily” concluding that the judge “has been spending our goodwill.”  Noting that “previous endeavors to help Judge Kwan correct this behavior have not been successful,” the Court “regretfully conclude[d] that a sanction less severe than suspension without pay will suffer the same fate as our prior attempts.”

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

 

Interesting posts

Several judicial discipline cases warn judges to resist the temptation to create social media posts that may interest or entertain the readers but do not reflect well on the dignity of the judiciary.

For example, one judge began a post with:  “In the category of, You can’t make this stuff up!”  The post purported to be a verbatim account of his conversation with the tenant in an eviction proceeding involving drugs found in an apartment.  (Instead of names, the judge referred to the individuals by their role in the case – “landlord,” “tenant,” etc.)

A maintenance man testified to finding powder that tested positive for cocaine under the bathroom rug in the tenant’s apartment.  The tenant testified that the heroin was not his — cocaine, not heroin, was his drug of choice and he keeps all of his drugs in a safe.  When asked how the heroin got into his apartment, the tenant said, “I don’t know.  Maybe one of the hookers I had in my apartment left it.”

The post ended:  “Needless to say, the Court ruled in favor of the landlord.”

When one of his Facebook friends asked if this was a true story, the judge posted:  “Yes.  It goes without staying but the tenant wasn’t the brightest bulb in the chandelier.”

Publicly reprimanding the judge, the Arizona Commission on Judicial Conduct found that the post and reply “mocked the intelligence level of the tenant,” creating an appearance of impropriety and diminishing public confidence in the judiciary.  Urie, Order (Arizona Commission on Judicial Conduct June 12, 2018).  See also Massachusetts Advisory Opinion 2016-9 (judge should not tweet about a defendants using profanity or throwing urine and feces at a judge because “a reasonable person may perceive these posts to be needlessly offensive, or as making light of behavior by litigants who may have mental health problems”).

In publicly reprimanding a judge for comments posted on his Facebook page, the Minnesota Board on Judicial Standards found that the judge had “put his personal interest in creating interesting posts ahead of his duty to maintain the appearance of impartiality.”  In the Matter of Bearse, Public reprimand (Minnesota Board on Judicial Standards November 20, 2015).

n one post, the judge had stated:  “[L]isten to this and conclude that lawyers have more fun than people.”  He then described a medical school graduate’s petition to expunge her disorderly conduct conviction based on her assault on her boyfriend after she found him having sex with her best friend.  He explained that he had granted the petition even though it was filed about 2 years early under the statute and he would probably be reversed if the prosecution appealed.”  Comments on the post included:  “I am always heartened by the application of common sense.  An excellent decision, in my opinion,” and “You’re back in the saddle again Judge.”

Those favorable comments, the Board stated, created the appearance that the judge’s decisions “could be influenced by the desire to make a good impression of himself on his Facebook page.”

The West Virginia Judicial Investigation Commission publicly admonished a judge for posting on his Facebook page a photo that showed him arraigning a woman on felony charges of forging her dying mother’s will to inherit more than $1,000,000.  Public Admonishment of Hall (West Virginia Judicial Investigation Commission October 31, 2017).  The photo came from a story run by a television station about the case.  The caption underneath the photo read, “Police:  Woman Exploits over One Million Dollars from Dying Mom,” and the news logo appeared to the right of the heading.

The post elicited comments from members of the public, including “[d]isgusting,” “[h]ang ‘em high Brent,” “[h]opefully you set a high bond,” and “I didn’t think anything could be lower than rescinding DACA.  I was wrong.”  Some comments expressed support for the judge’s handling of the arraignment, such as “[g]o Brent” and “[g]et ‘em Brent,” and “[t]hat face!  Good one.”

The judge argued that, because the photo did not include “any comment, opinion, or statement,” it was not a comment about a pending case.  The Commission strongly disagreed.

There is an old maxim that “a picture is worth a thousand words.”  The saying is deigned to convey the concept that a single image often expresses an intricate idea better than any written description.  By placing that still photo on his Facebook page, Respondent expressed to his Facebook friends the woman’s perceived guilt in a louder voice and in a more certain tone then if he had actually written the words himself.

The Commission emphasized that the judge’s post was “designed to elicit responses from his friends because that’s what Facebook is meant to be – an alternate public means of communication.”  The Commission noted that the largely negative comments were “no surprise” and the judge’s “failure to remove them constituted a tacit endorsement,” concluding he had acted in a way that was “contrary to the neutral and detached demeanor of all judges but . . . undoubtedly popular with his friends.”

More Facebook fails

Based on stipulations and agreements, the Washington State Commission on Judicial Conduct recently admonished 2 judicial officers for Facebook posts soliciting contributions to non-profit organizations.  (A public admonishment is “the least severe disciplinary action available” to the Washington Commission.)

In both orders, the Commission emphasized that the “prohibition against judicial solicitation of money does not reflect on the worthiness or virtue of the charity or cause in question” and “a near blanket prohibition upon fundraising by judicial officers is necessary as it would be impossible to exercise principled distinctions based on the nature of the charity involved, and it would be improper to have a government agency such as a conduct commission make such value choices.”  Noting that most judges “are quite conscious that they may not solicit funds for themselves or others in face-to-face encounters,” the Commission stated that “there is not a meaningful or workable distinction between in-person and written or electronic solicitations (although solicitations could be more or less egregious, depending on the context).”  The Commission noted that “social media is a relatively new form of communication,” “the law tends to lag behind technology,” and “[t]here has not yet been a Commission opinion addressing social media, so need for guidance is greater than in other areas.”

Thus, the Commission publicly admonished a supreme court justice for 2 posts soliciting support for non-profit organizations.  In re Yu, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).

Since 2013, the justice has maintained a Facebook page that, “[i]n Facebook parlance,” is a “government official” page that anyone can access and that no one can “friend.”  She does not solicit “followers” for the page.  The page identifies the justice as a member of the judiciary.  The justice is actively engaged in the community, she uses the page to educate viewers about matters related to the judicial branch, and her posts are intended to make the court and judicial officers more accessible and transparent to the public.

On April 22, 2018, the justice posted on her Facebook page:

Join Lifelong for Dining Out For Life on April 26!

On Thursday, April 26, raise your fork for Dining Out For Life!  Join Lifelong at one of 90 restaurants in the Greater Seattle Area who are set to donate 30-50% of their proceeds to vital programs that support people facing serious illness and poverty in our community.

https://www.diningdutforlife.com/seattle

Lifelong is a non-profit organization that provides recovery assistance for persons suffering from drug abuse and addiction.

On April 28, the justice posted on her Facebook page about Real Change, a weekly newspaper that employs homeless and previously homeless people as vendors.

I know many of you wonder what you might do about homelessness.  There are a myriad of policy issues that deserve your attention.  I can’t advise you on any of them.  But, here is one concrete thing you can do each week:  buy the “Real Change” newspaper from a vendor that you see on the street comers in Seattle.  They buy the paper for .60 and sell it for $2.00.  It is a business for each vendor.  The paper has interesting articles on housing, poverty, and other social issues.  If you don’t have cash, most will take payment with Venmo.  But how hard can it be to withdraw some cash each month, stuff it in your pocket, and just commit to buying the paper each week?  Support these folks who are just trying hard to earn some money in an honest way.

Screenshots of the 2 posts are included in the Commission order.

The Commission explained:

While these Facebook posts present no articulable element of coercion, the Commission finds that it is still an abuse of the prestige of judicial office.  The prestige is appropriately reserved for the service of the office itself, and not to be used for the individual benefit of the judge or others, regardless how generally good the cause may be.

Given the nature of her Facebook communications, the justice did not believe the posts rose to the level of a solicitation, but she acknowledged that the Commission is the body charged with interpreting facts and enforcing the code and deferred to its determination that the posts violated the code.  Recognizing that greater guidance is needed on the increasingly prevalent use of social media, the justice believes the stipulation will provide such guidance and raise awareness of the risks of sharing information on social media that could be construed as solicitations or endorsements.

The Commission also publicly admonished a judge for a post on his Facebook page encouraging people to attend a charity fund-raiser.  In re Svaren, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct December 7, 2018).  The judge had attended a “pancake feed” held to benefit the families of people killed during a mass shooting at the Cascade Mall in September 2016.  On his Facebook page, which is titled “Judge David Svaren,” the judge posted photos of signs at the event and text that read:

The Burlington Fire Department Pancake Feed is happening now and 100% of the proceeds go to benefit the families of the victims of the recent tragedy at Cascade Mall.  Please consider attending, it runs until noon today.

After a few weeks, the judge removed the post after reviewing it and realizing it may violate the code.  The judge was unable to recall or explain why he had not recognized at the time he made it that the post would violate the code.

In mitigation, the Commission noted, for example, that the judge has a long history of productive service as a judicial officer, had no prior discipline, cooperated with the Commission’s proceeding, and “recognized the problematic nature of the conduct, and removed the post even prior to contact from the Commission.”  However, the Commission concluded that its “failure to act on a case involving a Code violation on social media, even one with strong mitigators, could wrongly signal to judges and the public that online Code violations are somehow exempt from enforcement.”

See also In re Prewitt, Order (Missouri Supreme Court November 24, 2015) (public reprimand for, in addition to other misconduct, numerous posts on Facebook about charitable fund-raising events that noted a judge’s support for the organizations and encouraged others to contribute); In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016) (6-month suspension without pay for Facebook posts about a fund-raiser for a church, in addition to other misconduct); Private Warning and Order of Additional Education of a Municipal Court Judge (Texas State Commission on Judicial Conduct August 23, 2012) (private warning for entries on a Facebook page that indicated to the public that the judge was an organizer for a charitable fund-raiser); Pennsylvania Judicial Conduct Board Annual Report (2017) (private letter of caution to judge who re-posted a photographic advertisement of a fund-raising event for a charitable institution); Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018) (public admonishment for organizing a school supply drive using court staff and advertising it in Facebook posts, soliciting donations to an individual in a Facebook post, and advertising his donation of a rifle to a charitable organization’s raffle in a Facebook post).

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