Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for sharing a “GoFundMe” account on her Facebook page.  In re McCroskey, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct April 21, 2023).  The Commission noted that “GoFundMe is a for-profit crowdfunding platform that allows people to raise money for events ranging from life events such as celebrations and graduations to challenging circumstances like accidents and illnesses.”

The judge has had a Facebook account since before being elected to the bench.  At the time of the posts at issue, her Facebook page clearly identified her as a district court judge.  

On January 14, 2022, with the comment “She’s one of a kind,” the judge shared to her Facebook page a “GoFundMe” account for a woman that stated it was to “Help [ ] cover her medical expenses!”  

The judge explained to the Commission that she had shared the GoFundMe post not to solicit donations, but “to update local friends about someone who was ill and had moved out of the area” and that she had acted on her own, not in her official capacity.  The judge did not believe that she was not violating the code, but accepted the Commission’s determination that a reasonable person would view a GoFundMe post as a request for monetary donations and, therefore, a solicitation that is prohibited by the code.

The judge’s Facebook page also had several posts promoting or advertising specific local businesses.

• In October 2020, the judge shared a photo of a bride and groom with the text:  “Thank you Nissa:  Floral Traditions, for the beautiful bouquet and boutonnier [sic]!  You are so talented!”  The judge also subsequently shared this as a memory.
• In May 2021, the judge shared a post from Floral Traditions that highlighted merchandise available for Mother’s Day.  One of the photos had a caption that read:  “Order for Mother’s Day.  We deliver!”
• In October 202, the judge created a post that included a photo of an arm with a bracelet and sweater and text that read, “It is awesome to be able to wear local purchases from years ago and know they are still in business!!!!  Bracelet, circa 2012 Shanty.  Sweater and jeans, JB Boutique, September.”

The judge explained that she made the posts “simply to express her pride in local businesses that were able to weather the pandemic.”  For example, she stated that she had expressed her appreciation of the flower shop because she had been relieved that they were able to find flowers for her daughter’s wedding during the pandemic.  The judge also noted that there are no other flower shops in her community and that she received nothing in exchange for any of her posts.  

Emphasizing that “the application of the Code to social media is an evolving area of law,” the Commission did not find that these posts violated the prohibition on abusing the prestige of her judicial office.  However, it did discuss “potential problems” with posts by judges promoting local businesses.  It explained:

The advent of social media has not altered the Code of Judicial Conduct, but the reach of social media and its interactive nature amplifies and thus alters the impact of judges’ comments posted on social media.  It is, for example, unlikely that a reasonable person would conclude that a judge was lending the prestige of her office to a local business if she commented in real life to friends or work associates that she had a wonderful meal last weekend at a specific restaurant, even though everyone listening knew she was a judge.  The same comment posted on social media can link to the business in question and can be seen by hundreds or thousands of people, especially the people who are “friends” on that social media platform and who can respond and give positive reinforcement to that judge for all to see.  Social media has been with us for almost two decades – the platform in question is about 19 years old and has 2.96 billion users.  Yet it is still an evolving form of social interaction, and the antecedents of the Code of Judicial Conduct go into antiquity, far before the internet was conceived. 

. . .  The Code is not only an enforceable set of standards, but is aspirational in nature, directing judges to be conscious that they should strive to maintain public trust and confidence in their independence, integrity, and impartiality in all their actions . . . .”

Thus, the Commission advised, judges should be “particularly thoughtful in what they post online.”

In an advisory opinion, the Colorado Judicial Ethics Board addresses “to what extent a judge may be active” on LinkedIn, “with whom a judge may connect,” and “the ethical implications of judges using LinkedIn to post, comment on, endorse, connect with, or react to posts made by themselves and others.” Colorado Advisory Opinion 2022-5. The board describes LinkedIn as “an online social media website that focuses on professional networking and career development,” used by millions of professionals and many courts and bar associations. Although the opinion notes some of the unique features of LinkedIn, much if not all of the advice appears just as applicable on other social media platforms.

The opinion states that a judge may have a LinkedIn profile page identifying them as a judicial officer, listing the court that they serve on, and including a profile picture of themself in judicial robes as long as the photo is taken in an appropriate setting, for example, a courtroom or chambers. The board also notes that a judge may choose not to identify as a judicial officer on the platform but warns that even then, the judge “should proceed as if every connection knows that the judge is a judge.” The opinion states that judges may connect with bar associations and law-related groups on LinkedIn.

The opinion also advises that a judge may connect with attorneys on LinkedIn even if the attorney may appear before the judge but that the judge should consider when deciding whether to connect with an attorney the nature of the judge’s page, the number of friends or connections they have on the page, their practice when deciding whom to friend or connect with, and how regularly the attorney appears before the judge. The board cautions that, if an attorney-connection appears before the judge in a case, the judge may have to remove the attorney from their connections based on considerations such as the characteristics of the lawyer’s practice and the jurisdiction of the judge’s court. If the judge and the attorney-connection have a close relationship, the judge should disclose the relationship to the parties and perhaps recuse. The opinion states that a new judge may have to delist a pre-existing attorney-connection based on whether the attorney may appear before them, the judge’s docket type, and the characteristics of the attorney’s practice. “Having a LinkedIn connection,” the board writes, “is just one factor for a judge to consider in determining whether to disclose the relationship.”

The opinion advises that a judge may not endorse any LinkedIn connection’s skills or endorse businesses on LinkedIn but may recommend a connection based on the judge’s personal knowledge, for example, recommending their former clerk for a specific position to a potential employer. New judges with existing LinkedIn accounts should “unendorse” attorneys or businesses they have previously endorsed.

The opinion emphasizes that judges must never post, repost, comment on, or react to anything on LinkedIn that would violate the code of judicial conduct, including posts, comments, or reactions:

• That involve pending cases,
• That disclose non-public information concerning a case,
• That constitute political activity, or
• That demean a person based on their race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status.

For example, the opinion states, “judges should not forward what the judge might regard as an innocuous off-color joke because, for a judge, there is no such thing as an innocuous off-color joke.”

The board states that, in general, judges may post, repost, comment on, and react to topics concerning the law, the legal system, or the administration of justice, that is, issues concerning court administration and procedure. For example, the opinion states, “judges may post or comment on announcements for free legal clinics, new court rules, judicial vacancies, and upcoming meetings for local specialty bars and inns of court because there is nothing controversial or inappropriate about these subjects.”

The opinion also permits judges to post and repost public legal decisions from their own court or any state or federal court and to post and repost neutral news reports on judicial decisions. However, the board warns judges to “think twice about posting, commenting on, or reacting to articles praising or criticizing a legal decision because doing so drifts away from the safe harbor of the law, the legal system, and the administration of justice and wades into sociopolitical waters.” The board further notes that, although a judge could post a link to the U.S. Supreme Court’s recent abortion decision, for example, “some may wonder what the judge’s intention was when making such a post, and what first began as an innocuous post announcing a long-awaited U.S. Supreme Court decision may quickly evolve into a political or biased battleground” if the judge’s connections comment on the post or react with the icons indicating support, celebration, love, or curiosity available on the platform.

Therefore, the opinion concludes, “judges must monitor comments and reactions to anything they post or repost on LinkedIn.” The board cites California Judges’ Association Advisory Opinion 66 (2010). In that opinion, the California Judges Association Judicial Ethics Committee explained that, although “in a traditional social setting, a judge normally has no obligation to respond to comments made by others, no matter how distasteful or offensive,” leaving inappropriate comments on their social media page “may create the impression that the judge has adopted the comments,” which “can become not only permanent but accessible to all of the judge’s friends.” Therefore, the committee concluded: “a judge is obligated to delete, hide from public view or otherwise repudiate demeaning or offensive comments made by others that appear on the judge’s social networking site.” The committee also warned that, “a judge has an obligation to be vigilant in checking his/her network page frequently in order to determine if someone has placed offensive posts there.”

An opinion from the California Supreme Court Committee on Judicial Ethics Opinions also directed judges to continually monitor reactions to the statements they post on social media. California Expedited Opinion 2021-42. The committee described a 2-step process for judges to ensure compliance with the code while they are on social media.

First, they must carefully evaluate their own statements . . . before deciding to post something on social media. . . . Second, they must monitor reactions to their statements and the social media forums they use. For example, if a judge’s social media posts trigger online posts or comments that devolve into discussions undermining the judge’s impartiality or demeaning the judicial office, the judge must use his or her best efforts to delete those posts. Or, just as in physical public forums, if the social media site itself suggests bias or impropriety, a judge may need to leave that site entirely.

The opinion concluded: “While it may not be feasible to track every social media page they have commented on or change the conduct of online contacts, a judge must make reasonable efforts to monitor social media pages or threads associated with the judge and take action to remedy any statements that compromise the integrity of the judiciary.”

In its 2018 annual report, the California Commission on Judicial Performance stated that it had privately admonished a judge who failed to diligently monitor social media associated with their name, in addition to other conduct.

See also Florida Advisory Opinion 2012-7 (suggesting that a judge who writes a blog add a disclaimer that they do not “endorse or vouch for” comments by others and that others’ comments do not represent the judge’s views); Washington Advisory Opinion 2009-5 (suggesting that a judge who writes a blog review others’ comments before they are published if possible, regularly monitor the comments to ensure that the discussion does not move into a prohibited topic, and consider “whether readers might perceive that the judge’s impartiality is impaired by the volume and content” of the comments).

Judicial candidates have also been advised to monitor their social media pages for inappropriate posts by others. In a statement, the Kentucky Judicial Campaign Conduct Committee cautioned candidates that “they are ultimately responsible for material posted on their social-media pages and should remove information that is false or misleading.” The North Carolina Judicial Standards Commission stated that, as a best practice, judicial candidates should monitor comments on social media and remove offensive or profane comments from their public campaign page. North Carolina Political Conduct Memo (2022).

With respect to content on others’ social media pages, the Massachusetts committee stated that a judge cannot “reasonably be expected to monitor all postings and comments” on the social media pages of friends or organizations that the judge follows or likes. Massachusetts Advisory Opinion 2016-1. The committee explained that a reasonable person would not conclude that a judge endorsed a Facebook friend’s communication unless the judge expressly agreed with it, noting that “a Facebook user often has no knowledge concerning the communications made by Facebook friends.” However, the committee added, if a judge becomes aware that a Facebook friend’s communications or the contents of a page the judge likes or follows “negatively impact the integrity or impartiality of the judiciary,” the judge must “unfriend” the person or stop “liking” or “following” that page. Similarly, the Utah committee stated that “a judge is not required to continually monitor” other’s websites, but that, “if a judge happens to review a website with which the judge is associated, and the website contains questionable content, the judge may be required to disassociate from the site.” Utah Informal Advisory Opinion 2012-1. But see Missouri Advisory Opinion 186 (2015) (a judge must make “a reasonable effort to review” social media posts by “friends” and “friends of friends” and must “sever or ‘unfriend’ anyone whose conduct or postings would place the judge in position of appearing to endorse . . . prohibited conduct”).

Private sanctions

In its 2021 annual report, the California Commission on Judicial Performance stated that it had issued an advisory letter to a judge who “posted remarks on social media, expressing points of view on controversial issues, that conveyed an appearance of bias against prosecutors and law enforcement.” 

In 2022, based on the judge’s agreement, the Kentucky Judicial Conduct Commission privately reprimanded a judge for, after consuming too much alcohol, sending a participant in a court program over which he was presiding a private message on social media that was flirtatious and expressed his desire to meet with the individual at the conclusion of their participation in the program. 

In 2021, Louisiana Judiciary Commission privately cautioned a judge for social media activity that conveyed an appearance of partiality. 

In its 2021 annual report, the Minnesota Board on Judicial Standards stated that it had privately cautioned 2 judges that “‘liking’ the page of a candidate for public office could be construed as support or opposition of a candidate for public office” and “encouraged the judges to monitor and maintain strict privacy settings on their Facebook accounts.” 

In 2021, the Texas State Commission on Judicial Conduct privately admonished a judge who had appeared in a social media video depicting the judge dancing in their courtroom to a song with explicit lyrics, as requested by a person who could use the video to promote their own social media. 

In 2022, the Texas Commission ordered additional education for a judge who made a social media post promoting a conference in which the judge was participating and engaged in improper solicitation of funds for the conference. 

In 2022, the Texas Commission privately warned and ordered additional education for a judge who, in addition to other misconduct, in Facebook posts, recommended a particular attorney and praised the work of particular lawyers appearing in their court. 

COVID orders and memes

The Texas State Commission on Judicial Conduct publicly admonished a justice of the peace for stating in a Facebook post that he would release anyone brought before him charged with violating stay-at-home orders issued during the COVID-19 public health emergency.  Public Admonition of Black (Texas State Commission on Judicial Conduct February 28, 2022).

Just over a month later, the Texas Commissionpublicly warned the same justice of the peace for posting and reposting racial, ethnic, and religious comments and/or memes on social media, in addition to other misconduct.  Public Warning of Black (Texas State Commission on Judicial Conduct April 7, 2022).  For example, some posts contrasted “white folks” and “violent black behavior;” some asserted that “Muslims need to learn to be American;” some claimed, “You’re not Special” because “white slaves were sold for centuries;” and some displayed the Confederate battle flag with the caption, “If we had equal rights … my southern heritage would be just as important as your black history.”

Political fundraiser

Accepting an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for, during her campaign, posting an invitation to a fundraising event for the county Republican committee on Facebook, in addition to other misconduct.  In the Matter of Coffinger, Determination (New York State Commission on Judicial Conduct February 23, 2022).

4 times, the judge posted to her campaign’s Facebook page an invitation to the Hamilton County Republican picnic that read, “You are Invited 2019 Republican Picnic and Meet the Candidates Day!”  The invitation offered food, drinks, “Music, Bingo, Door prizes and more.”  Ticket prices ranged from $12 to $35.  The invitation also read, “Tickets – See any Republican Committee Member.”  All of the judge’s posts advertising the event were viewable by the public.

The event was a fundraiser and generated a profit of nearly $1,800 for the Hamilton County Republican Committee.  The judge spoke at the event.

The judge acknowledged that, although she believed the event was a social occasion held to thank committee members and introduce the candidates, in retrospect, “she should have made inquiries and been aware that it was a fundraiser which would have precluded her from posting the invitation or otherwise advertising the event.”

Sexually charged content and the NRA

A judge has asked for review of the decision of the New York State Commission on Judicial Conduct removing him from office for (1) posting and disseminating sexually charged content on social media when he used his Facebook account to publicly promote and/or approvingly comment on posts and images that were demeaning toward women or otherwise offensive and (2) using his Facebook account to publicly engage in fundraising for the National Rifle Association.  In the Matter of Stilson, Determination (New York State Commission on Judicial Conduct January 7, 2022), review requested.  The Commission also found that the judge exacerbated his misconduct by failing to respond to the Commission proceedings. 

Ex parte communications

Reviewing the findings and recommendation of the Judiciary Commission, which were based on stipulations, the Louisiana Supreme Court suspended a judge from office for 4 months without pay for, while he was presiding over a child custody case, engaging in improper ex parte communications on Facebook Messenger with the children’s maternal grandmother for over a 6-month period and related misconduct.  In re Denton (Louisiana Supreme Court March 25, 2022).

The case underlying the discipline proceeding involved 2 children.  Their mother had a history of substance abuse and mental health issues.  Their father was not involved in their lives for the first several years after they were born.  As a result, the children were primarily cared for by their maternal grandmother, Stephanie Bardeau-Marse.

In September 2017, the Department of Children and Family Services received a report of erratic behavior and suspected drug use by the mother in the presence of one of the children.  At the request of DCFS, the judge granted an order placing the 2 children in the temporary custody of DCFS.  In October 2017, the State filed a petition to adjudicate the children in need of care.

In December 2017, Bardeau-Marse filed a petition to intervene in the proceeding and requested custody of the children.  In January 2018, the judge denied the petition.  Following a hearing, the judge granted custody of the children to the father with monitoring by DCFS; ordered visitation for the mother and the grandparents to be facilitated by a relative; and set a case review hearing for April 12, 2018.

Approximately 3 weeks before the case review hearing, in a private message on Facebook Instant Messenger, Bardeau-Marse mentioned a “small circle of friends that we share and both consider friends” to the judge and stated, “I’m begging for someone to listen to me . . . since my attorney was pretty much thrown out of the courtroom and my pleading petition was not heard. . . .  I’m asking to please let me have a heart to heart conversation with you, again on a personal level, I want to explain my situation/self how those babies are loved how they are our heart . . . .”  Bardeau-Marse also said that “anyone who knows me and my family know[s] what kind of people we are and how we live . . . including Ex-mayor Jimmy Durbin. . . .  May I please have an hour of your private time at your convenience on that personal level?”

The judge did not know Bardeau-Marse and did not respond to her message.

In the case hearing On April 12, the judge denied Bardeau-Marse’s second petition to intervene and request for custody of the children and granted sole custody of the children to the father, with supervised visitation to the mother but no specific visitation rights for Bardeau-Marse.  At the urging of the attorneys for the children and DCFS, the judge retained jurisdiction over the case.

At 7:49 p.m. that day, the judge called Bardeau-Marse; the call lasted for 100 minutes.  In the call, the judge told Bardeau-Marse that he would keep his eyes on the children’s father and gave her the name and number of a private investigator.

The judge communicated frequently with Bardeau-Marse by Messenger for 6 months (March 2018 to August 2018).

For example, in a message to the judge on April 30, at 6:05 a.m., Bardeau-Marse discussed her difficulty in seeing her grandchildren.  The judge replied at 6:32 a.m.:  “I am so sorry for your continued pain.  I don’t have the answer, but I am working on the entire situation.  I assure you because I am not happy with the current exigencies as currently exist.  Keep praying and I will do the same.”

On May 11, Mother’s Day weekend, at 11:43 p.m., Bardeau-Marse sent the judge a lengthy message about her grandchildren, her daughter, and their conflict with the father over visitation/custody, the father’s alleged drinking and drug abuse, and his alleged mental and emotional abuse of the mother and her side of the family.  The judge responded with a “thumbs-up” emoji.

In July, Bardeau-Marse messaged the judge:  “[The mother] received this letter today . . . does this mean [the father] has full custody now?  And the case is over?  The letter is incorrect . . . these kids were NEVER neglected or abused NEVER . . . .”  At 6:31 p.m., the judge advised her:  “No it does not necessarily mean that it’s over. . . . I do strenuously suggest you go hire the best lawyer you can afford[,] get legal advice and go to court where jurisdiction over custody can be fought over.  I wish I could do more but I have a court of limited jurisdiction.”  A few minutes later the judge messaged:  “I wish I could do more to help[.]  But as it currently sits my hands are tied.  I wish you the very best!  I will continue to pray for you and your family.”  Then, Bardeau-Marse replied:  “I understand . . . I just appreciate you listening . . . .”

Bardeau-Marse informed her attorney, Maria Finley, that she had been communicating with the judge by Messenger texts and telephone calls.  She showed Finley the messages, including the judge’s advice to file a custody suit in another court.  On August 10, Finley filed suit against the father on behalf of Bardeau-Marse, seeking custody or visitation.  The suit was filed in family court and was assigned to Judge Lisa Woodruff-White.

Judge Denton called and then emailed Judge Woodruff-White and suggested that Finley was forum shopping and asked that he be allowed to retain jurisdiction as a “professional courtesy.”  After briefing by the parties, Judge Woodruff-White dismissed the suit against the father, stating that Judge Denton’s court was the more appropriate forum.

The Commission found that the judge had “offered no satisfactory explanation for why he engaged in the conduct” except that he was “sympathetic to the plight of the grandmother,” which may have “impacted and overshadowed some of [his] judgment” and that he had been receptive to her initially because they both had a connection to the former mayor.

Discussing the appropriate sanction, the Court emphasized that the judge “adversely affected the integrity and the respect of the judiciary.”  It explained:

The Commission succinctly summed up the impact of Judge Denton’s actions:  “Judge Denton’s actions resulted in chaotic and contentious proceedings before Judge Woodruff-White and during the writ process that followed, which understandably caused Ms. Finley great distress, deprived or significantly delayed Ms. Bardeau-Marse her day in court, left her feeling confined, betrayed, and devastated.”

The Tennessee Board of Judicial Conduct publicly reprimanded a judge for (1) providing a “legal tip of the day” on Facebook and (2) having his law license suspended twice for failing to comply with continuing legal education requirements.  Webb (Tennessee Board of Judicial Conduct November 5, 2021).

In 1 “legal tip of the day,” the judge advised that “when stealing stealth is key.  You want to blend in with your surroundings.”  As an example, he explained, “You and your 5’10 sister walk in [Walmart] with green hair and green toenails and green flip flops that smack the back of your feet with every step you make and you don’t blend in and you are caught with three steaks shoved into your pants.  You forgot to be stealth.”  In another Facebook post, the judge stated, “remember people, the goal of criminal and bad behavior is to get away with it.”  As an example, he described 2 women arguing outside the courthouse when one “scream[s] out ‘b*tc* what’s hood!’”  The judge added that “screaming and cursing and fighting in front of police officers 10 out of 10 times is detrimental to ones [sic] freedom.”  In another post, the judge wrote that it is “downright damn humiliating when [police are] pulling crack from your crack!  Find someplace else to hide your stash.”

The judge explained that his posts were “designed to get a laugh and to make people think about life choices.”  However, the Board explained that, “regardless of motivation, it is neither dignified nor appropriate for a judge, especially one who hears criminal cases, to be providing legal advice such as ‘when stealing stealth is key’ or urging the public to be mindful that ‘the goal of criminal and bad behavior is to get away with it.’”  Noting that the Tennessee Supreme Court has stated that “’lawyers who choose to post on social media must realize they are handling live ammunition,’” the Board concluded that the judge’s social media posts did not reflect the “caution and reflection” required for judges “choosing to participate in inherently public platforms . . . .”

When the Chattanooga Times Free Press published an article about the second suspension of his law license, the judge posted on Facebook:  “Well damn!  Give me a black hat and a black horse and call me a desperado, I feel like I was in [sic] just busted.”

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Based on the final report of the Board of Professional Conduct, which was based on stipulations, the Ohio Supreme Court suspended a judge for 6 months for communicating inappropriately with a court reporter on Facebook and by text and phone calls, with the entire suspension stayed conditioned on the judge receiving 8 hours of training on sexual harassment and refraining from further misconduct.  Disciplinary Counsel v. Berry, Order (Ohio Supreme Court November 3, 2021).

In October 2019, after the judge posted pictures of the courthouse’s 100-year celebration to his Facebook page, Jane Doe liked some of the pictures.  In a private Facebook message, the judge thanked Doe for “liking” the pictures and asked how she was associated with the courthouse.  Doe replied that she was a court reporter assigned to a different judge’s courtroom.  The judge encouraged her to “stop by [his] Chambers in Room 226 [because he] look[s] forward to meeting [her]!!”  The judge sent Jane Doe another private message that said, “Have a Great Weekend.  You’re ‘Lurking’ and didn’t come down to my Chambers to visit.”  After a lengthy conversation on Facebook, the judge asked Doe for her cell phone number.  The parties stipulated that, if called to testify, Doe would state that she felt she could not refuse to give her personal number to him because he was a judge.

One Saturday, the judge called Doe and talked about his divorce.  If called to testify, Doe would testify that the judge sounded intoxicated during the call and that he used profanity.  The judge denies that he was intoxicated and has no specific recollection regarding whether he used profanity.  During that call, the judge asked Doe out to lunch, but she declined.  On October 30, at 11:24 a.m., the judge sent Doe a private Facebook message saying, “Hey come down to visit today or soon.  I may have an ‘Offer you can’t Refuse!!’”

On November 3, the judge asked Doe out for lunch or drinks after work by Facebook.

Happy Sunday!!  Thank God We don’t have to Watch & Witness our Horrid Bengals today!!  A true Blessing.  FYI, I’m on “Staycation” all this coming week, and Girl do I need it.  The irony of “Staycation” is that you run errands and spend more $$ while off work than while We do while at work.  So, I’ll do all the things, couldn’t do during a normal work week, and I’d like to invite you to accompany me for lunch or for drinks after work.  I Hope I’m not being too forward or pushy in inviting you to do something.  So, simply le me know if you’d like to meet for lunch or drinks this coming week or otherwise.  I’m a “Big boy” so I know how to accept and respect the word, “NO”.  So please be Honest in your response.  Again, I hope you’re not offended because this is not my intent whatsoever.  So, kindly RSVP either way.  TY!!

Doe did not respond.

The Facebook communications between the judge and Doe became increasingly one-sided.  After asking her out, the judge sent her 72 Facebook messages; she replied to only 15.  Most of his message were links to videos, photographs, or quotes on the internet, not personal messages.  Many of the links were to overtly political and partisan content, for example:

• An edited video from the Late Show with Stephen Colbert showing the crowd at a baseball game singing for the removal of President Donald Trump.
• An edited video in which Trump begins to smoke and then catches on fire during a prayer session.
• An image of Trump saying “APPRENHEND THAT CAT!” with an image of a cat responding, “YOU AIN’T GRABBING THIS P***Y, YOU TANGERINE LOOKING MF!”
• A parody video entitled “The Donald Trump Prayer,” calling for the divine removal of Trump.
• A video from Trae Crowder, the “Liberal Redneck” in which he graphically and profanely insults Trump supporters.

The judge also sent Doe messages with links to offensive and sexually explicit videos, for example:

• “How to Build a Resume for a Hoe’” featuring comedian Tiffany Haddish joking about helping female prostitutes build their resume; the video contains profanity and crude, sexually explicit language.
• “How to End a First Date,” a viral YouTube video with crude, sexually explicit language in which a woman is negotiating sexual favors in exchange for gifts with a man who is seeking commitment-free sex from her, whom he describes as dumb and boring.

Doe did not respond to the judge’s messages but did bring them to the attention of her boss and a co-worker, who informed court administration.  After an investigation, court administration referred the matter to Disciplinary Counsel.

* * *
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.

Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 18 months without pay for soliciting funds for the Red Cross on his Facebook page, in addition to other misconduct.  In the Matter of Johns (South Carolina Supreme Court October 13, 2021).

In September 2018, the judge posted on his Facebook page:  “For my birthday this year, I’m asking for donations to American Red Cross.  I’ve chosen this nonprofit because of food, water, and much more provided for those affected by Hurricane Florence in NC & SC.”  In the introduction to his Facebook page, the judge identified himself as a probate judge and stated that he managed the Oconee County Probate Court.

In 2016, the Court had suspended the judge for 6 months based on his social media posts commenting on a pending matter, endorsing a presidential candidate, and fundraising for a local church.  In re Johns, 793 S.E.2d 296 (2016).  The Court noted that, at the time of the previous sanction , the judge had removed any reference to himself as a judge from his Facebook page, stated that he was “deeply embarrassed,” and assured the Court that, in the future, on Facebook or any other social media, he would not refer “to anything involving his court,” make political posts, or post fundraising information.  In the current case, the Court stated:  “Despite these assurances, Respondent restored the reference in his Facebook profile identifying himself as a Probate Judge with the Oconee County Probate Court and again used social media for fundraising purposes.  In light of Respondent’s prior misconduct, we find a substantial suspension from judicial duties is appropriate.”

* * *
Based on the judge’s resignation and agreement to be disqualified from judicial service in the state, the Texas State Commission on Judicial Conduct agreed not to pursue further disciplinary proceedings against a former justice of the peace; in a notice of formal proceedings, the Commission had alleged that the judge, in addition to other misconduct, made Facebook posts or allowed posts to appear on her Facebook page that (a) promoted, advertised, and/or expressed her support for consumer products, businesses, and other commercial endeavors; (b) indicated her support for and association with law enforcement, the Blue Lives Matter movement, and the U.S. Border Patrol; (c) expressed her contempt or disdain for criminal defendants; (d) promoted fundraising efforts by civic, charitable, and educational organizations and made directed solicitations for personal and local causes; and (e) promoted the campaigns of several candidates for public office.  Fernandez, Voluntary agreement to resign from judicial office in lieu of disciplinary action (Texas State Commission on Judicial Conduct October 22, 2021).

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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 others that expressed partisan views 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).

3 days after George Gascón was sworn in as the new District Attorney of Los Angeles County, the judge used his personal Facebook account to join a recently created Facebook group called “Recall George Gascón.”  Subsequently, he posted comments that engaged with group members in response to other members’ posts and “liked” 2 comments by other group members. 

Finding that the judge’s Facebook activity gave the appearance of bias against the District Attorney, the Commission concluded:  “The judge was an active participant in a group with more than 16,000 members, formed to oppose an elected official, giving the appearance that he endorsed the group’s stated goals and activity.  Judge O’Gara posted remarks expressing a partisan viewpoint, and ‘liked’ other users’ comments expressing similarly partisan viewpoints.”  The Commission also found that because the judge heard cases prosecuted by the district attorney’s office while he participated in the group, the judge’s “Facebook activity constituted making public comments about pending or impending proceedings in a court.”

The judge maintained a public Twitter account, with the username @mjogara and the display name “Michael J. O’Gara.”  The Commission’s decision includes screenshots of the judge’s tweets, re-tweets, and likes between 2014 and 2021.  Some of the judge’s tweets or likes were in response to tweets by comedian John Cleese, comedian Jim Gaffigan, actor George Takei, and actor James Woods.

The Commission found that the judge’s Twitter activity gave the appearance of bias and that he “posted undignified, indecorous remarks in response to public figures, and appeared to espouse partisan and controversial viewpoints.”  The Commission also found that the judge liked tweets by other users that “appeared to reflect strong political points of view and opinions on controversial issues” such as immigration, the death penalty, and police reform; suggested bias against people of Chinese descent, victims of sexual assault, Muslims, and immigrants; and “were seemingly critical of those exercising their First Amendment right to protest, such as supporters of the Black Lives Matter movement” and participants in the Women’s March.

In his response to the Commission, the judge expressed contrition and acknowledged that his actions on social media were “inappropriate.” The judge has removed himself from the Facebook group and deleted the Twitter app from his phone and deactivated his account.

Rejecting the judge’s defense that he did not intend his social media activity to act as an endorsement of any specific partisan positions, the Commission stated that, “‘Likes’ are, on their face, indicia that a person likes content.”  The Commission noted that, “Facebook is a forum with over one billion active monthly users” and that “Twitter is a forum with over three hundred million active monthly users, each of whom may, if they wish, screenshot or share content generated by another user.”  By commenting on a Facebook post or tweeting or re-tweeting content, the Commission stated, the judge “effectively distributed material to an unlimited number of persons, over whose actions he had no control.”  The Commission noted that the harm done by the judge’s social media activity was compounded because the judge’s followers “included the official account for the City of Glendale, at least one Los Angeles deputy district attorney, and multiple private attorneys.”

The Commission quoted the California Judicial Conduct Handbook:

Public involvement on either side in ongoing debates about controversial social and political issues is improper.  Such issues (e.g., abortion and same-sex marriage) are frequently the subject of public debate and litigation.  A judge who is politically active may be perceived to have prejudged issues that may come before the courts.  Public involvement politicizes the judicial institution, demeans the judiciary, and impairs judicial independence and impartiality.

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

• 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).

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 14^th 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.

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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.

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