Another Facebook fail

The West Virginia Judicial Investigation Commission publicly admonished a judge for posting on his Facebook page a photo showing him conducting an initial appearance.  Public Admonishment of Hall (West Virginia Judicial Investigation Commission October 31, 2017).

On September 5, 2017, the judge arraigned a woman on felony financial exploitation of the elderly and related charges for allegedly forging her dying mother’s will to receive more than $1,000,000.  WSAZ-TV filmed the arraignment and ran a story in which the judge prominently appeared.

The judge posted on his Facebook page a still photo of the video from the TV station’s story.  The photo showed him seated in court conducting the appearance with the caption, “Police:  Woman Exploits over One Million Dollars from Dying Mom.”

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

The Commission “strongly” disagreed with the judge’s argument that he had not violated the code of judicial conduct because he posted the photo “without any comment, opinion, or statement.”  The admonishment explained:

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

The Commission also found that the post was “designed to elicit responses from his friends because that’s what Facebook is meant to be – an alternate public means of communication,” noting “[t]he fact that the friends’ comments were largely negative is no surprise, and Respondent’s failure to remove them constituted a tacit endorsement of the same.”  The Commission emphasized that the judge’s action “was certainly contrary to the neutral and detached demeanor of all judges but was undoubtedly popular with his friends.”

The concern that a judge may be posting on social media with an eye more to engaging an audience than promoting confidence in the judiciary was also expressed in a 2015 public reprimand from Minnesota.  In the Matter of Bearse, Public reprimand (Minnesota Board on Judicial Standards November 20, 2015).  One of the judge’s Facebook posts described a medical school graduate’s petition to expunge her conviction for disorderly conduct because she could not be licensed with the conviction on her record.  The judge commented, “listen to this and conclude that lawyers have more fun than people.”  He then related that the conviction was based on the woman’s assault on her boyfriend whom she had found having sex with her best friend.  He stated that he granted the petition although “[s]he is about two years early based on our new statute” and if the prosecution appealed, “which they will not, I think I will be reversed.”

Comments on the judge’s post included, “I am always heartened by the application of common sense.  An excellent decision, in my opinion,” and “You’re back in the saddle again Judge.”  The Board found that the favorable comments could create the appearance that the judge’s “decisions on cases could be influenced by the desire to make a good impression of himself on his Facebook page” and noted its concern that the judge was “putting his personal communication preferences above his judicial responsibilities.”

The summer and fall issues of the Judicial Conduct Reporter were devoted to the issue of judicial ethics and social media.

Without more

Denying a petition for a writ of prohibition, the Florida 3rd District Court of Appeal recently held that a trial court judge’s Facebook “friendship” with a lawyer representing someone involved in litigation did not require the judge’s disqualification from the case.  Law Offices of Herssein and Herssein v. United Services Automobile Association (Florida 3rd District Court of Appeal August 23, 2017).

The plaintiff, a law firm, sued a former corporate client for breach of contract and fraud, accused one of the defendant’s executives of witness tampering, and indicated that the executive was a potential witness and potential defendant.  An ex-circuit court judge was hired to represent the executive.  The plaintiff filed a motion to disqualify the trial judge because the ex-judge was listed as a “friend” on the trial judge’s personal Facebook page.  The test for determining the legal sufficiency of a motion for disqualification in Florida is whether “the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.”

The 3rd District relied on a decision by the Florida 5th District Court of Appeal holding that requiring disqualification in cases involving Facebook friends “does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.”  Chace v. Loisel, 170 So. 3d 802 (Florida 5th District Court of Appeal 2014).  Describing the word “friend” on Facebook as a “term of art,” the 5th District explained that a Facebook friend “could more aptly” be described as an “acquaintance and, sometimes, virtual stranger.”  The court noted that requiring disqualification in cases involving an acquaintance “is unworkable and unnecessary,” “[p]articularly in smaller counties, where everyone in the legal community knows each other, . . .”  (However, in the case before it, the 5th District held that a judge who sent a Facebook friend request to the wife in a dissolution of marriage case had engaged in an ex parte communication and was required to recuse herself.)

The 3rd District agreed that a “Facebook friendship does not necessarily signify the existence of a close relationship,” noting “some people have thousands of Facebook ‘friends,’” “Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends,’” and “many Facebook ‘friends’ are selected based upon Facebook’s datamining technology rather than personal interactions.”  The 3rd District explained:

To be sure, some of a member’s Facebook “friends” are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty.  The point is, however, many are not.  A random name drawn from a list of Facebook “friends” probably belongs to casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a “friend of a friend;” or even a local celebrity like a coach.  An assumption that all Facebook “friends” rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.

The 3rd District “respectfully acknowledge[d]” its “conflict with the opinion of our sister court” in Domville v. State, 103 So. 3d 184 (Florida 4th District Court of Appeal 2012).  In Domville, the 4th  District Court of Appeal had held that recusal was required when a judge was a Facebook “friend” with the prosecutor based on a judicial ethics opinion that advised that judges were prohibited from being “friends” on Facebook with lawyers who appear before them.   Florida Advisory Opinion 2009-20.

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion,” the 3rd District stated, “electronic social media is evolving at an exponential rate.  Acceptance as a Facebook ‘friend’ may well once have given the impression of close friendship and affiliation.  Currently, however, the degree of intimacy among Facebook ‘friends’ varies greatly.”  The 3rd District held that, “[b]ecause a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word, . . . the mere fact that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’”  The court did not discuss whether there was something “more” than the “mere” Facebook friendship that might require the judge’s disqualification in that case.

The decisions from the 3rd and 5th District Courts of Appeal in Florida are consistent with other state appellate caselaw holding that a social media connection does not require a judge’s disqualification, although only the Florida cases involve relationships with attorneys.  See State v. Forguson, 2014 WL 631246 (Tennessee Court of Criminal Appeals 2014) (a trial judge is not disqualified despite his status as “Facebook friend” with the state’s confidential informant who was a witness at trial); State v. Madden, 2014 WL 931031 (Tennessee Court of Criminal Appeals 2014) (a judge’s Facebook friendship with one of the witnesses did not require his disqualification from a criminal case); Youkers v. State, 400 S.W.3d 200 (5th District Texas Court of Appeals 2013) (a trial judge did not lack impartiality based on a Facebook friendship and communications with the father of the defendant’s girlfriend).  So far, no state supreme court has had to decide the issue.

In July, rejecting a challenge to a settlement, the U.S. Court of Appeals for the 9th Circuit also rejected the defendants’ argument that the district court judge should have recused himself because of an appearance of bias created by activity on his alleged Twitter account.  U.S. v. Sierra Pacific Industries, 862 F.3d 1157 (U.S 9th Circuit 2017).  The civil action by the U.S. was brought in the Eastern District of California against private forestry operators and individuals to recover damages to 2 national forests caused by a fire.

The court made no findings about whether the judge actually controlled the Twitter account at issue, which was an undeveloped issue in the district court.  (According to the blog “Above the Law,” the Twitter account, “@nostalgist1,” was controlled by Judge William Shubb who was presiding in the case.  The account was public at the time of the relevant tweets, but “[a]fter the government sent Judge Shubb a letter informing him that his Twitter usage was being raised on appeal, Judge Shubb changed his account from ‘public’ to ‘protected,’ meaning that only approved followers can see his tweets.”)

The Twitter account allegedly controlled by the judge followed the Twitter account of the U.S. Attorney for the Eastern District of California.  The day that the district judge denied the defendants’ motion for relief from the settlement, the U.S. Attorney posted 8 tweets about the case on its Twitter account.  That evening, the judge’s alleged Twitter account tweeted a link to “an allegedly erroneous news article” about his decision.  (It was allegedly erroneous because the settlement did not provide that the defendants were “liable” and the title for the article was, “Sierra Pacific still liable for Moonlight Fire damages.”)

The 9th Circuit held that, under the plain error standard, the allegations did not warrant retroactive recusal even if the judge was the owner of the account.  The Court rejected the defendants’ argument that the judge’s “following” of the U.S. Attorney’s office Twitter account created an appearance of bias.  Noting “news organizations, celebrities, and even high-up government officials use Twitter as an official means of communication, with the message intended for wide audiences,” the Court held that, “[w]ithout more, the fact that an account holder ‘follows’ another Twitter user does not evidence a personal relationship and certainly not one that, without more, would require recusal.”

The Court also rejected the defendants’ arguments that disqualification was required because the U.S. Attorney’s tweets about the case were an improper ex parte communication and the judge’s tweet linking to the newspaper article was an inappropriate public comment.  The Court concluded that the U.S. Attorney’s tweets were not ex parte communications because they were not “specifically directed” to the judge, but were “released to the general public, intended for wide distribution to an anonymous public audience.”  Finally, the Court held that a single tweet consisting “only of the title and link to a publicly available news article about the case in a local newspaper, without any further commentary” was not a public comment on the merits of the matter and did not require recusal.

Although concluding that retroactive recusal was not warranted, the 9th Circuit noted that the “case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases” and reiterated “the importance of maintaining the appearance of propriety both on and off the bench.”

As discussed in the spring issue of the Judicial Conduct Reporter, judicial ethics committees also advise that disqualification is not necessarily required when an attorney with whom a judge has an on-line connection appears in a case, but that that connection is one factor a judge should consider in deciding whether her impartiality might reasonably be questioned.  For example, the Arizona committee stated that there is no “per se disqualification requirement in cases where a litigant or lawyer is a ‘friend’ or has a similar status with a judge through social or electronic networks” but that there may be “facts and circumstances” related to the social media relationship that might disqualify the judge.  Arizona Advisory Opinion 2014-1.  See also Maryland Opinion Request 2012-7; Missouri Advisory Opinion 186 (2015); New Mexico Advisory Opinion Concerning Social Media (2016); New York Advisory Opinion 2013-39; Ohio Advisory Opinion 2010-7; Utah Informal Advisory Opinion 2012-1.

Even the Massachusetts committee, which has advised judges not to “friend” attorneys who may appear before them, stated that disqualification may not be required if “[d]espite a judge’s best efforts, . . . unexpectedly, a lawyer whom the judge knows to be a Facebook friend appears before the judge.”  Massachusetts Letter Opinion 2016-1.  But see California Judges’ Association Advisory Opinion 66 (2010) (if a judge approved a connection to a lawyer on a social media site because he believed it was highly unlikely the attorney would ever appear before him, the judge should disqualify himself if that lawyer does appear).  Cf., In the Matter Concerning Ferguson, Public admonishment (California Commission on Judicial Performance May 31, 2017) (public admonishment of judge who was Facebook friends with attorneys who were appearing regularly before him without disclosing the relationship, in addition to other misconduct).

Because disqualification is not automatically required, a judge must consider whether an on-line connection — alone or in combination with other factors — raises a reasonable question about the judge’s impartiality whenever a person with whom a judge has a social media connection appears in a case.  The relevant factors for making that determination include:

  • The frequency of the judge’s social media contacts and communications with the individual;
  • The substance of the judge’s social media contacts and communications with the individual;
  • The scope of the social media friendship;
  • The nature of the social networking page (for example, whether it is more personal or professional);
  • The number of “friends” the judge has on the page;
  • The judge’s practice in deciding whom to “friend” (in other words, whether the judge is very exclusive or more inclusive when deciding whom to add);
  • Whether the social media connection was established before the case came before the judge; and
  • Whether the judge and the friend have frequent, personal contacts in real life, not just on-line.

(Some of those factors identified by California Judges’ Association Advisory Opinion 66 (2010) as relevant to the determination whether a judge should friend an attorney and seem just as pertinent to the question of disqualification.)

Thus, if the judge’s social media page primarily has posts about personal activities, his connections are mainly family and personal friends, the judge is very selective when adding to his “friend” list, the judge and the attorney comment on each other’s posts, and the judge and the “friend” and their families socialize in real life, the judge’s impartiality is more likely to be reasonably questioned and disqualification is more likely to be required when that “friend” appears in a case.  In contrast, if the page is focused more on court business and professional activities, the judge has more “friends” on the page, those friends are primarily professional acquaintances, the judge allows anyone to follow the page, and the judge and the “friend” only interact in court or at bar meetings, the judge’s impartiality is not likely to be questioned, and disqualification is not likely to be required.

 

Legal advice on social media

Rule 3.10 provides that a full-time judge “shall not practice law.”  Thus, although users may ask for legal advice via social media when they learn another user is a judge, the judge cannot respond.  Accord Connecticut Informal Opinion 2013-6; Kentucky Advisory Opinion JE-119 (2010); New York Advisory Opinion 2008-176; Ohio Advisory Opinion 2010-7; ABA Formal Opinion 462 (2013).  See also In re Bass, Public Reprimand (Georgia Judicial Qualifications Commission March 18, 2013) (sanction of judge for private Facebook chat advising a woman who contacted him about how her brother should get his DUI matter into his court where he would “handle it,” in addition to other misconduct).

Further, advisory committees have broadly interpreted the prohibition to apply, not just to answering specific questions from other users, but to general social media posts that could be construed as legal advice.

For example, the West Virginia advisory committee stated that a judge could not post videos in which she answers questions about family law on her campaign web-site because she would be engaging in the practice of law and “potentially” in ex parte communications.  West Virginia Advisory Opinion (February 6, 2016).  In addition, although the committee stated that a judicial candidate (to whom the code applied) could post videos about general procedures and statutes on child support calculations on her Facebook page, it emphasized she must ensure “the explanations do not cross the line into legal advice or discussions concerning pending or impending matters.”  The committee also warned that such videos were likely to generate follow-up questions that a judicial candidate could not answer.

Similarly, the Utah committee advised that a judge may post about legal topics on social media — unless the comments could be considered legal advice.  Utah Informal Advisory Opinion 2012-1.  The Massachusetts committee also stated that, although a judge may post “purely educational” tweets advising “trial lawyers on trial practice (e.g., preparing clients to testify, delivering closing arguments, conducting cross-examination),” the judge must “offer only practice tips and not legal advice.”  Massachusetts Letter Opinion 2016-1.  The Connecticut advisory committee approved a judge’s participation as an expert on a non-profit, non-partisan organization’s electronic “answer board” that provides journalists with information on legal and constitutional topics, but warned the judge to keep her answers factual and instructive without providing legal advice.  Connecticut Advisory Opinion 2011-14.

Based on findings of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court removed a judge from office for explaining how to beat a DWI charge on a public on-line fan-site, in addition to other misconduct.  Judicial Discipline and Disability Commission v. Maggio, 440 S.W.3d 333 (Arkansas 2014).  Under the subject “to blow or not to blow,” the judge had posted:

You have the right to remain silent . . . so don’t say a word.  Don’t open your mouth “smell of intoxicants” that is the probable cause for FST.  Just hand the LEO your license, insurance and registration.  Everything they need to write you the ticket (reason for the stop) is on those papers.

Never say a word.  If ordered out of car.  Get out and lean against car.  Don’t move.  Yes very possible you will be cuffed and stuffed.  But at that time all they have is the violation for the stop.

Refuse the BAC test.  Yes another ticket but better than the alternative.  In the end the less evidence the best.

That being said 99% of folks on the side of the road all think hey I can “talk my way out.”

Of course, the single best advice is don’t drink and driver ever.  LEO don’t play.

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This post will be part of the summer issue of the Judicial Conduct Report, which is the second and final part of an article analyzing the advisory opinions and discipline decisions on social media and judicial ethics.  Part 1, the spring issue, described the advice judicial ethics advisory committees have given judges regarding social media in general and the rules related to judicial duties in particular.  Part 2, to be published in August, will cover off-bench conduct:  abuse of the prestige of office, disclosing non-public information, providing legal advice, charitable activities, including fund-raising, commenting on issues, political activity, and campaign conduct.  You can sign up to receive notice when a new issue is available.

New issue of the Judicial Conduct Reporter on judicial ethics and social media

The spring issue of the Judicial Conduct Reporter is now available to be downloaded.

The issue is Part 1 of a 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics.  Part 1 describes the advice judicial ethics advisory committees have given judges regarding social media in general and the rules related to judicial duties in particular.  Relevant caselaw is also used to illustrate the principles discussed.

In response to inquiries from judges, committees have allowed judges to join the millions of others using social media but have also emphasized that the code of judicial conduct applies on networks and warned judges to be very careful while socializing on-line.  Opinions advise judges to implement the services’ privacy protections but to assume all social media activity may become public and be attributed to the judge.  Judges have also been cautioned not to make any statements indicating bias or prejudice, not to allow such comments on their page, and not to “like” such comments by others.  Further, the committees remind judges that the requirement that they maintain the dignity of the judicial office applies to every social media post and photo.

With respect to making social connections on networks, some advisory committees prohibit judges from “friending” attorneys who may appear before them while others reject that bright line for a friend-by-friend analysis of appropriateness.  Disqualification is not automatically required when a “friend” appears in a case, but such an appearance requires a judge to consider the nature and scope of the social media relationship and other relevant factors to determine whether the judge’s impartiality could reasonably be questioned.  Further, committees recommend or even require disclosure of a social media relationship in a case involving a “friend.”

In addition, the opinions note there is no social media exception to the prohibitions on ex parte communications and independent investigations.  Finally, the committees remind judges that all comments on pending cases are “public” when made on social media and suggest that a broad interpretation of the prohibition on public comments is the best way for judges to maintain public confidence in the judiciary.

Part 2, which will be the summer issue of the Reporter, will cover off-bench conduct:  abuse of the prestige of office, disclosing non-public information, providing legal advice, charitable activities, including fund-raising, commenting on issues, political activity, and campaign conduct.  Both parts will contain links to additional materials on the Center for Judicial Ethics web-site.  The 2 parts and the supplemental materials will be combined in a comprehensive paper that will be posted on the Center’s web-site in late 2017.

Anyone can sign up to receive notice when a new issue is available.  All past issues of the Reporter are also available on-line as free downloads.  There is an index of Reporter articles.

Another Facebook fail

The Texas State Commission on Judicial Conduct publicly reprimanded a judge for posting, “Time for a tree and a rope . . .” on Facebook in response to the arrest of an African-American man in the killing of a police officer.  Amended Public Reprimand of Oakley and Order of Additional Education (Texas State Commission on Judicial Conduct May 8, 2017).  The Commission also ordered the judge to complete 30 hours of training for new judges and participate in 4 hours of instruction on racial sensitivity with a mentor chosen by the Commission.

On November 21, 2016, the San Antonio Police Department posted to its Facebook page a mugshot of Otis McKane, an African-American man, with the following statement:

Today at 1545 hrs.  Otis Tyrone McKane was taken in custody for the capital murder of SAPD Det. Benjamin Marconi.  The arrest was made by SAPD in a joint effort with multiple law enforcement agencies.  The arrest was made without incident.  The San Antonio Police Department would like to thank everyone who assisted in locating the suspect.

In response, the judge posted to the police department Facebook page the comment, “Time for a tree and a rope . . .”  His comment, along with the post, also appeared on his own Facebook page.

The former editor of a local newspaper took a screen shot of the judge’s Facebook post and disseminated it to the news media.  The judge removed his post and issued a public apology, describing his comment as “harsh,” “off-the-cuff,” and “curt,” but denying it had anything to do with race.  The judge and his post became the subject of negative media attention locally, nationally, and internationally, and the Commission received 18 written complaints.  The complainants expressed numerous concerns about the post, including its call for vigilante justice, apparent disregard for due process of law, racial insensitivity, and possible influence on the jury pool.  Multiple complainants also questioned the judge’s suitability for judicial office and his ability to perform his judicial duties impartially.

Asked by the Commission to explain the intent and context of his Facebook post, the judge responded, “My comment was intended to reflect my personal feelings that this senseless murder of a police officer should qualify for the death penalty.  In my mind the race/gender of the admitted cop killer was not relevant.”  The judge explained that a “tree and a rope” was a reference to a humorous advertising campaign for Pace Picante Sauce salsa from the 1980s.  The judge does not believe his post cast discredit on the judiciary because the “media stories were promoted as a political attack” and his words were twisted into “phrases [and] headlines that were not accurate.”  During his appearance before the Commission, the judge made statements that indicated to the Commission that he could benefit from racial sensitivity training.  The judge also testified that he had not attended training for new judges.

The Commission found that the judge’s post “cast reasonable doubt on his capacity to act impartially in the performance of his duties” and was “willful conduct that cast public discredit on the judiciary and the administration of justice.”

The most-requested resources section of the Center for Judicial Ethics web-site has a comprehensive list of discipline cases, advisory opinions, and other judicial ethics and discipline materials related to social media.

“Social Media and Judges:  Bright Lines and Best Practices” will be the plenary session at the 25th National College on Judicial Conduct and Ethics, October 4-6, 2017, in Austin, Texas.  Topics for the break-out sessions are:

  • Disqualification
  • The Curious Judge: Independent Factual Investigations
  • Judicial Discipline and Technology
  • Ethical Guidelines for Members of Judicial Conduct Commissions
  • Judicial Impairments
  • Best Practices for Judicial Ethics Advisory Committees
  • Pro Se Litigants and Judicial Ethics
  • Fines, Fees, and Judicial Ethics
  • Determining the Appropriate Sanction
  • The Role of Public Members
  • Introduction to Judicial Ethics and Discipline for New Members of Judicial Conduct Commissions

Registration is now open for the College.

The up-coming spring and summer issues of the Judicial Conduct Reporter will be a 2-part article on social media and judicial ethics.  Part 1, the spring issue, will be a general introduction to the topic followed by a discussion of the social media issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and commenting on pending cases.  The second part of the article, which will be the summer issue of the Reporter, will cover off-bench conduct:  abuse of the prestige of office, disclosing non-public information, providing legal advice, charitable activities, commenting on issues, political activity, and campaign conduct.  You can sign up to receive notice when new issues of the Reporter are available.

2016 Facebook fails:  Top judicial ethics and discipline stories of 2016

Judges got in trouble for injudicious, off-the-bench comments before recent revolutions in on-line communications, but the greater temptation to vent posed by the new-fangled social media and the greater potential for venting to “go viral” were illustrated in several cases in 2016.

Dropping his First Amendment defense to charges brought by the Kentucky Judicial Conduct Commission, a judge agreed to a 90-day suspension without pay for, in addition to other misconduct, publishing comments on Facebook that accused the county commonwealth’s attorney of advocating for all-white jury panels, that criticized the public defender and criminal defense attorneys for not publicly supporting him in his dispute with the commonwealth’s attorney, and that discussed the motion to certify the law filed on behalf of the commonwealth’s attorney while the case was pending before the Kentucky Supreme Court.  In re Stevens, Agreed order of suspension (Kentucky Judicial Conduct Commission August 8, 2016).  For example, the judge had posted, “History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming he is entitled to an all-white jury panel.  No matter the outcome, he will live in infamy.”  The judge also made numerous similar comments during a presentation to the Louisville Bar Association.  For a longer summary of the case, see the previous post here.  Later in 2016, reviewing Judge Stevens’s decision, the Kentucky Supreme Court held that he did not have the discretion to dismiss a randomly selected jury panel that, despite its unrepresentative appearance, was drawn from a jury pool that reflected a fair cross section of the community.

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Accepting a stipulation and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for making improper public comments on her Facebook account about a matter pending in another court and failing to delete related public comments by her court clerk.  In the Matter of Whitmarsh, Determination (New York State Commission on Judicial Conduct December 28, 2016).

The judge sits on the Morristown Town Court.  On March 3, 2016, a felony complaint was filed in the Canton Town Court alleging David VanArnam, who was running for the Morristown town council, had filed nominating petitions in which he falsely swore that he personally witnessed the signatures on the petitions.  On March 13, in a post on her Facebook account, the judge commented that she felt “disgust for a select few,” that VanArnam had been charged with a felony rather than a misdemeanor because of a “personal vendetta,” that the investigation was the product of “CORRUPTION” caused by “personal friends calling in personal favors,” and that VanArnam had “[a]bsolutely” no criminal intent.  The judge also stated, “When the town board attempted to remove a Judge position – I stood up for my Co-Judge.  When there is a charge, I feel is an abuse of the Penal Law – I WILL stand up for DAVID VANARNAM” [sic] [emphasis in original].  The judge also posted a web-site link to a news article reporting when the charge against VanArnam had been dismissed.

The judge had intended her post to be seen only by her 352 Facebook “friends.”  However, a few years earlier, she had set her Facebook privacy settings to “public” for an unrelated reason, and, at the time of her posting about the VanArnam case, her privacy settings were still set to public although she did not realize that.  The judge’s post about the VanArnam case was shared at least 90 times by other Facebook users.  A local news outlet posted an article on its web-site reporting on the judge’s Facebook comments and re-printed her post.

The Morristown Town Court Clerk posted on the judge’s Facebook page, “Thank you Judge Lisa!  You hit the nail on the head.”  The judge did not delete the court clerk’s comment, which was viewable by the public.

In 2 comments posted on the judge’s Facebook page, the judge’s husband questioned whether the complainant in the VanArnam case had a “close personal relationship” with “our prosecutor” and called the matter a “real ‘Rain Wreck’” referring to Mary Rain, the county District Attorney.  The judge clicked the “like” button next to some of the comments to her post, including a comment stating that the charges against VanArnam were “an abuse of our legal system” and “uncalled for;” a comment criticizing the district attorney; and another comment by her husband, stating, “This is what’s wrong with our justice system.”

On March 28, the judge removed all posts concerning the VanArnam matter from her Facebook page after receiving a letter from District Attorney Rain questioning the propriety of her comments and requesting her recusal from all matters involving the District Attorney’s office.  Soon after receiving that letter, the judge granted that request.

The Commission stated:

Comments posted on Facebook are clearly public, regardless of whether they are intended to be viewable by anyone with an internet connection or by a more limited audience of the user’s Face book “friends.”  Even such a “limited” audience, we note, can be substantial, and to the extent that such postings can be captured or shared by others who have the ability to see them, they cannot be viewed as private in any meaningful sense. . . .

Regardless of respondent’s intent, her comments — and her “likes” of comments criticizing the District Attorney that were posted in response to her message — conveyed not only respondent’s personal view that the prosecution was unjust, but the appearance that she was impugning the integrity of the prosecution and endorsing others’ criticism of the District Attorney’s office and the District Attorney personally.  Her statements, which were viewable online for 15 days and were reported by the media, were inconsistent with her duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” . . . and resulted in her recusal from all matters involving the District Attorney’s office.  Moreover, by referring to her judicial position in the same post (stating that she had once “stood up for my Co-Judge”), respondent lent her judicial prestige to her comments, which violated the prohibition against using the prestige of judicial office to advance private interests . . . .

Noting that a judge is required to “‘require similar abstention [from public comment about pending proceedings] on the part of court personnel subject to the judge’s direction and control,” the Commission stated that the “comments posted by respondent’s court clerk on respondent’s Facebook page were also objectionable.”

The Commission took the “opportunity to remind judges that the Rules Governing Judicial Conduct apply in cyberspace as well as to more traditional forms of communications and that in using technology, every judge must consider how such activity may impact the judge’s ethical responsibilities. . . .  While the ease of electronic communication may encourage informality, it can also, as we are frequently reminded, foster an illusory sense of privacy and enable too-hasty communications that, once posted, are surprisingly permanent.”  The Commission noted that the Advisory Committee on Judicial Ethics has cautioned judges about the public nature and potential perils of social networks, advised that judges who use such forums must exercise “an appropriate level of prudence, discretion and decorum” to ensure that their conduct is consistent with their ethical responsibilities, and said it is essential that judges who use such forums “stay abreast of new features of and changes to any social networks they use.”  The Commission noted “these are excellent guidelines for any judge who joins and uses an online social network.  At a minimum, judges who do so must exercise caution and common sense in order to avoid ethical missteps.”

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Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 6 months without pay for his Facebook posts about a case, political matters, and a fund-raiser for a local church.  In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016).  The judge’s Facebook account identified him as the probate court judge for Oconee County, and the account and all of his posts were accessible to all members of Facebook.

Z.H.’s parents had filed a wrongful death suit on behalf of his estate against the police department.  The case was settled for $2,150,000.  The settlement received extensive press coverage.

While the matter was before the probate court for administration of the estate, the judge expressed his opinion about the settlement on Facebook, posting:  “In the end it’s all about the money.  Always.  Unfortunately, I see it EVERYDAY.”  The judge later added:  “Once ck is in hand, they’ll disappear.”

The judge also made extensive political posts on Facebook, including ones in which he appeared to endorse a presidential candidate.  He also engaged in fund-raising for a local church in a post.

See also In the Matter of Archer, Final judgment (Alabama Court of the Judiciary August 8, 2016) (6-month suspension for sexually explicit Facebook relationship with a woman the judge met in his official capacity); Commission on Judicial Performance v. Clinkscales, 191 So. 3d 1211 (Mississippi 2016) (public reprimand of a former judge for endorsing a political candidate on social media, in addition to other misconduct); Public Reprimand of Uresti and Order of Additional Education (Texas State Commission on Judicial Conduct October 11, 2016) (public reprimand for Facebook posts that promoted the financial interests of a relative and a former judge, in addition to other misconduct).

See “social media and judicial ethics” in the most-requested Center resources section of the Center web-site for a comprehensive list of discipline cases, advisory opinions, and other judicial ethics and discipline materials.

Other posts on the top judicial ethics and discipline stories of 2016

Judges marching and tweeting

In a letter opinion, the Massachusetts Committee on Judicial Ethics advised that a judge should not participate in the Women’s March on Washington scheduled for January 21, 2017.  Massachusetts Letter Opinion 2016-10.  The opinion states:

The Women’s March is scheduled to take place the day after the Presidential Inauguration.  Though the organizers emphasize that the Women’s March is intended to be inclusive and welcoming to everyone who supports women’s rights, the political overtones are unmistakable.  The organizers reference the “rhetoric of the past election cycle” that has “insulted, demonized, and threatened . . . immigrants of all statuses, Muslims and those of diverse religious faiths, people who identify as LGBTQIA, Native people, Black and Brown people, people with disabilities, [and] survivors of sexual assault.”  A primary purpose of the Women’s March is to “send a bold message to [the] new administration on their first day in office.”

We understand that you wish to participate in the Women’s March to stand up against misogyny, racism, and other biases and bigotries that threaten the rule of law.  The public and the media are, however, likely to focus on the timing of the event and the organizers’ announced desire to “send a message” to the new President on his first day in office.  We believe that a reasonable person would perceive the Women’s March as a political protest, and the Code therefore prohibits your participation.

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The Massachusetts Committee has also issued a letter opinion on judges using Twitter, which is the first comprehensive advisory opinion to focus on that social media platform.  Massachusetts Advisory Opinion 2016-9.  The opinion was in response to an inquiry from a judge who has a Twitter account with a handle that includes “judge” followed by his surname and who includes a photo of himself wearing a judicial robe in numerous tweets.  His posts, the accounts he follows, and the identities of his followers can be viewed by the public at large.

The committee emphasized:  “As is also true with other forms of social media, each judge who uses Twitter must err on the side of caution and be aware that posts a judge-user considers neutral may nonetheless lead a reasonable person to question the judge’s impartiality.”

The Committee is of the opinion that, when a judge is posting publicly as a judge, the judge must be exceptionally cautious.  The reason is that the public may perceive the judge’s communications to have the imprimatur of the courts.  In general, a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes.  If the judge so desires, the account also may reflect who the judge is as a person, as well as a judge, so long that the judge is careful not to implicitly or explicitly convey the judge’s opinions on pending or impending cases, political matters, or controversial or contested issues that may come before the courts.  In addition, as to each piece of information revealed by the judge’s Twitter account (whether it is a tweet, a retweet, a “like,” the identity of an account that the judge follows, or the identity of an account that follows the judge) the judge must consider whether it would cause a reasonable person to question the judge’s impartiality.

Noting that many of the judge’s Twitter posts fell into certain categories, the committee gave advice for each category.

  • The committee stated that tweets that “share upcoming and past bar events and other news of general interest to members of the Bar (e.g. the establishment of new specialty courts, the election of bar leaders, the nomination of judges) . . . are consistent with the Code.”
  • With respect to the judge’s tweets advising “trial lawyers on trial practice (e.g., preparing clients to testify, delivering closing arguments, conducting cross-examination),” the opinion stated that “purely educational posts are consistent with the Code, but posts that a reasonable person may regard as demonstrating personal bias or improper comment on a pending case are not.” The committee advised that the judge “must make certain that the posts do not reflect [his] reaction, whether complimentary or critical, to the in-court behavior of any readily identifiable person,” noting that avoiding “a close temporal proximity” between the behavior and the related tweet “will help ensure that such posts are perceived to be purely educational.”  The committee also noted that the judge’s posts must “offer only practice tips and not legal advice.”
  • The judge posts tweets on selected cases decided by other courts, including the Massachusetts Supreme Judicial Court and the U.S. Supreme Court, often on decisions concerning racial discrimination and/or police misconduct, or both, including issues the judge confronts on a regular basis, such as assessing the credibility of police officers. The committee stated that “[r]eporting court decisions, even on selective topics, is consistent with the Code, but only if the reports do not compromise or appear to compromise [the judge’s] impartiality.”  To avoid conduct that a reasonable person may regard as demonstrating partiality, the committee advised, the judge’s “Tweets or retweets must be from official or neutral sources such as court websites or libraries.  [The judge] must not retweet or link to case reports from persons or organizations with legal opinions that are clearly on one side of contested and highly-charged legal issues.  Reports even by ‘mainstream media’ should be avoided, as such reports may contain commentary or reaction favoring one point of view.”
  • The committee cautioned the judge about “posts intended to reveal the existence of racism and implicit bias in the courts.” The opinion noted that “Massachusetts court leaders comment on and are taking steps to address these important concerns,” but cautioned that such “posts must serve a legitimate educational or informational purpose” and the judge “must avoid posts that individually or as a pattern would lead a reasonable person to conclude [he has] a predisposition or bias that calls [his] impartiality into question.”
  • The judge has posted, for example, “excerpts from an examination in which a defendant used profanity when addressing [a] judge and another reporting that a defendant threw bottles of urine and feces at a judge following sentencing.” The committee advised the judge to avoid posts of this nature because they detract from the dignity of the judiciary and the court system as “a reasonable person may perceive these posts to be needlessly offensive, or as making light of behavior by litigants who may have mental health problems.”
  • The judge has posted “photographs that appear to show litigants, attorneys, court personnel, and judges” in his courtroom or lobby and photos that include children. The opinion stated that privacy and safety concerns require the judge to obtain consent from any person (or from a parent, in the case of a minor) whose image he posts, unless he is “retweeting a photo that was previously disseminated to the public by the press, an organization or association of judges or lawyers, or other similar source.”
  • The opinion stated that “posts that generally reflect pride in [the judge’s] personal characteristics, background, and achievements” do not indicate personal bias or prejudice and are consistent with the code, noting “[i]t is long-settled that a judge’s gender, race, or other personal characteristics are not grounds for a reasonable person to question the judge’s ability to interpret and apply the law fairly and impartially.”

The committee emphasized that “each judge who uses Twitter or other forms of social media must, of course, consider whether the application of this advice in the judge’s individual circumstances will be consistent with the Code,” considering, for example, “whether a particular post or communication would be improper in light of cases pending before that judge and that judge’s typical caseload.”  With respect to retweets, the committee stated a judge should consider both the content and the source of the posts.  The committee also stated that, because the list of accounts the judge follows is public, the judge “must be cautious when selecting accounts to follow and avoid, for example, following the accounts of political candidates or parties.”