More Facebook fails

Independent investigation

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

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

Public support

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

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

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

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

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

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

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

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

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

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

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

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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.

Social media direction and control

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

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

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

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

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

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

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

More Facebook fails

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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.