More Facebook fails

In an interlocutory appeal, the Tennessee Court of Appeals found that a trial judge’s Facebook posts and other public statements were “easily construable as indicating partiality” against the manufacturers of prescription opioid medications being sued by local governments in a case over which he was presiding.  Clay County v. Purdue Pharma (Tennessee Court of Appeals April 20, 2022).  The court reversed the judge’s denial of a motion to recuse and remanded the case to be transferred to a different judge.

In an interview with a reporter for Law360.com, the judge said, among other things, that alleged discovery violations by the defendants Endo Health Solutions Inc. and Endo Pharmaceuticals Inc. were “like a plot out of a John Grisham movie, except that it was even worse than what he could dream up.”

In a subsequent post on his personal Facebook page, the judge asked:  “Why is it that national news outlets are contacting my office about a case I preside over and the local news is not interested.”  In response to a comment that, “You’re not trying to ban drunken bridesmaids on peddle carts,” the judge posted:  “[N]ope.  Opioids.”  The judge “liked” the follow-up comment:  “I don’t know if you’re going to get the help or platform you need from those with power/deep pockets.  Many of Tennessee’s powerful have ties to pharmaceuticals.” 

When another commenter asked on Facebook why the case was newsworthy, the judge responded, “Is a $1.2 Billion opioid case.  Our area has been rocked with that drug for decades.  Lots of interesting and new developments about the manufacturers in this case.”  One person commented, “We do not have a serious local news reporting outfit around here. . . .  The Tennessean is a left leaning rag so that leaves the internet to provide people the local ‘news.’”  The judge “liked” this comment and responded:  “This is an earth shattering case, especially for our community.  Fake news is not always what they publish, but what they choose not too also.”  Others commented about who should be held accountable. 

Ordering the judge’s disqualification, the appellate court concluded:

The above Facebook activity can reasonably be construed to suggest that the trial judge has a specific agenda that is antagonistic to the interests of those in the pharmaceutical industry. . . .  In our view, this activity by the trial judge positions himself publicly as an interested community advocate and voice for change in the larger societal controversy over opioids, not an impartial adjudicator presiding over litigation.  This perception is enhanced when considered alongside the trial judge’s ready participation in the Law360.com article and apparent desire, as expressed on his Facebook page, for more local media coverage.

The court noted that the trial judge’s Facebook page appeared “to be devoted in part to his re-election effort given a ‘Re-Elect’ picture banner next to his name” and that the judge appeared “to be motivated to garner interest in this case and draw attention to his stated opposition to opioids.”  It concluded that regardless whether he “is actually personally committed to banning opioids, his public post reflects this sentiment.” 

Subsequently, the Tennessee Board of Judicial Conduct suspended the judge with pay for 30 days for his statements about the opioid case and for his communications and physical relationship with a female litigant in a case pending before him.  In re Young, Order (Tennessee Board of Judicial Conduct July 26, 2022).  The Board noted that the judge’s term was ending August 31, 2022, after which it would no longer have jurisdiction over him. 

The Board found that, even after being removed from the case, the judge “continued his public media campaign by conducting additional interviews about the pending case with local and national publications and authoring additional social media posts,” which, the complaint by the pharmaceutical company’s lawyer alleged, risked tainting the jury pool.  Noting that the opioid case involved “numerous parties and more than a billion dollars,” the Board stated that the judge had not taken responsibility for the conduct that had led to his removal from the case and disrupted the orderly administration of justice, but in his response to the complaint, “blamed the parties and their lawyers,” “attempted to portray himself as a victim,” and “asserted, without citing any legal authority, that as a judge he essentially enjoyed a constitutional right to say and do as he pleased in the media and on social media platforms concerning the cases assigned to his court.”

In October 2020, based on the judge’s consent, the Board had suspended him for 30 days with pay and publicly reprimanded him for sending women inappropriate messages on social media platforms, but it had held the suspension in abeyance provided no meritorious complaints were filed against him during the remainder of his term.  (The Board does not have the authority to suspend a judge without pay.) 

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The Arizona Commission on Judicial Conduct publicly reprimanded a judge for posting on his Facebook page a litigant’s request for an extension of time that claimed his puppy ate his paperwork.  Williams, Order (March 21, 2022).  The judge’s Facebook account identifies him as “Judge Gerald A. Williams.”

On his Facebook page, the judge posted a photograph of a pleading in which a litigant claimed that his puppy had eaten his paperwork and, therefore, he needed an extension of time to complete defensive driving school.  The judge “crudely attempted to redact the pleading by placing torn post-it notes over the litigant’s name,” but he did not cover the case number, and the text underneath the post-it notes was partially visible.  Several of the judge’s followers commented on the post, and the Commission stated that, although none of the comments “were tremendously disparaging or negative,” “the intention was clearly to mock the litigant’s request.”  Screenshots of the post and comments are attached to the Commission’s order.

After receiving notice of the complaint, the judge deleted the post.  In his response to the Commission, the judge “claimed that he was only trying to share an amusing anecdote, and he apologized if he unintentionally insulted the litigant.”

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The West Virginia Judicial Investigation Commission publicly admonished a magistrate for, in addition to other misconduct, serving as one of several administrators/moderators for a neighborhood watch Facebook page.  Public Admonishment of Weiss (West Virginia Judicial Investigation Commission April 25, 2022).  The page states:

This page is the North View Neighborhood Watch Group.  This page is solely intended for North View, Clarksburg, West Virginia residents and past residents who want to make North View what it once was, again.  We are tired of the drugs, the run down houses, and all of the younger generation not caring about our beloved neighborhood.  Please report here, in confidence, to the moderators, any & all illegal activities that you see happening on our streets and in our homes.  It will be reported to the proper authorities & put on blast via our page.  We must do this as a Community!

After an incident in which someone had knocked on the door of the magistrate’s home and run away, the magistrate’s wife posted on the neighborhood watch Facebook page that the teens responsible had been caught.  Several members of the neighborhood, including parents of some of the teens, responded angrily that the teens were innocent, and one of the parents filed a complaint.

The Commission found that the magistrate created at least the appearance that he was pro-prosecution and pro-law enforcement by being the administrator for the neighborhood watch Facebook page, and the magistrate admitted that serving as administrator could lead a reasonable person to think that he was biased toward law enforcement.  The Commission also found that that his wife’s comment “was unseemly in light of the fact that people thought he was the one posting.” 

The Commission noted that it had previously warned the magistrate about posting on his Facebook page that he would dismiss any criminal citations issued for not wearing a mask because he thought it was unconstitutional.  The magistrate had admitted his post was wrong and apologized.

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The Texas State Commission on Judicial Conduct issued a private reprimand and order of additional education to a judge who “made callous and discriminatory comments on social media which cast reasonable doubt on the judge’s capacity to act impartially as a judge.”

The Arizona Commission on Judicial Conduct dismissed a complaint that a judge had posted a racist social media post, but, finding that “certain language” in the post “gave the perception of bias and was an appearance of impropriety,” the Commission reminded the judge “to exercise vigilance over the contents of her social media postings, both personally and professionally.” According to the complaint, the judge’s post read:

VOTE AS IF:
Your skin is not white.
Your son is gay.
Your sister was a victim of gun violence.
Your daughter is transgender.
Your grandparents need medical care.
Your home is on fire.
Your partner is an immigrant.
Your brother is a veteran suffering from PTSD.
Your best friend is a victim of domestic abuse.
Your house is flooded.
Your folks are homeless.
Your daddy is Two Spirit.
Vote as if your family depends on it.

In its annual report for 2021, the Pennsylvania Judicial Conduct Board reported that it had issued:

  1. A letter of counsel to a judge who posted remarks and photographs on their Facebook page expressing support for a particular political party and candidates and expressing a negative opinion about certain U.S. Supreme Court opinions and justices.
  2. A letter of counsel to a judge who posted a photograph on Facebook and made comments to the media about the photograph that manifested a preference for a particular political party; and
  3. A letter of caution to a judge who unintentionally submitted Facebook friend requests to a victim in a criminal proceeding and a defendant in a criminal proceeding while using Facebook to investigate the identity of the victim and the whereabouts of the defendant.

Code provisions about social media

The 2007 version of the American Bar Association Model Code of Judicial Conduct makes no reference to social media, not surprising giving the novelty of virtual networking as Facebook only became generally available in September 2006.  As more and more judges began to participate in social media, numerous judicial ethics opinions and judicial discipline cases have emphasized that the code applies on-line as well as IRL.  So far, 6 states have adopted provisions in their codes to stress that principle.

The new code of judicial conduct adopted by the Illinois Supreme Court (which will be effective January 23, 2023) includes the most extensive provisions addressing social media. The preamble to the new Illinois code explains in general:

The Code governs a judge’s personal and judicial activities conducted in person, on paper, and by telephone or other electronic means.  A violation of the Code may occur when a judge uses the Internet, including social networking sites, to post comments or other materials such as links to websites, articles, or comments authored by others, photographs, cartoons, jokes, or any other words or images that convey information or opinion.  Violations may occur even if a judge’s distribution of a communication is restricted to family and friends and is not accessible to the public.  Judges must carefully monitor their social media accounts to ensure that no communication can be reasonably interpreted as suggesting a bias or prejudice; an ex parte communication; the misuse of judicial power or prestige; a violation of restrictions on charitable, financial, or political activities; a comment on a pending or impending case; a basis for disqualification; or an absence of judicial independence, impartiality, integrity, or competence.

There are also specific comments about social media to many of the rules.

With respect to use of the prestige of office, a comment to Rule 1.3 warns:

[A] judge must not use the judicial title in letterhead, e-mails, or any other form of communication, including social media or social networking platforms, to gain an advantage in conducting personal business.

A comment to Rule 2.1 cautions:

To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities, including their use of social media or participation on social networking platforms, to minimize the risk of conflicts that would result in frequent disqualification.

Comments to the rule regarding ex parte communications (Rule 2.9) state:

The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, or other persons who are not participants in the proceeding and communications made or posted on social media or social networking platforms.

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Judges who maintain a presence on social media or social networking platforms should be aware of the potential for these sites to become an unintended vehicle for ex parte communications.

A comment to Rule 2.10, which limits judicial statements on pending and impending cases,  states that “judges who are active on social media or social networking platforms should understand how their comments in these forums might be considered ‘public’ statements implicating this Rule.  Judges should be aware of the nature and efficacy of privacy settings offered by social media or social networking platforms.”

A comment to the disqualification provisions in Rule 2.11 states:

A judge’s use of social media or social networking platforms may create the appearance of a relationship between the judge and litigants or lawyers who may appear before the judge.  Whether a relationship would cause the judge’s impartiality to ‘reasonably be questioned’ depends on the facts.  While the labels used by the social media or social networking platform (e.g., “friend”) are not dispositive of the nature of the relationship, judges should consider the manner in which the rules on disqualification have been applied in traditional contexts and the additional ways in which social media or social networking platforms may amplify any connection to the judge.

A comment to Rule 3.7 advises:

A judge may not use social media or social networking platforms to promote the activities of educational, religious, charitable, fraternal, or civic organizations when the judge would be prohibited from doing so using another means of communication.  For example, just as a judge may not write or telephone nonfamily members or judges over whom the judge has supervisory authority to encourage them to attend organizations’ fundraising events, a judge may not promote those events via social media or social networking platforms.

A comment to the Rule 4.1 prohibition on judges and judicial candidates “publicly” endorsing or making “speeches” on behalf of political candidates or organizations notes that “comments by judges active on social media or social networking platforms may be considered ‘public’ for purposes of this Rule.”

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In 2 places, the commentary to California code of judicial ethics refers to judges’ obligations regarding social media. Commentary to Canon 2A states:

A judge must exercise caution when engaging in any type of electronic communication, including communication by text or email, or when participating in online social networking sites or otherwise posting material on the Internet, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  The same canons that govern a judge’s ability to socialize in person, on paper, or over the telephone apply to electronic communications, including use of the Internet and social networking sites.  Those canons include, but are not limited to Canon 2B(2) (lending the prestige of judicial office), 3B(7) (ex parte communications), 3B(9) (public comment on pending or impending proceedings), 3E(2) (disclosure of information relevant to disqualification), and 4A (conducting extrajudicial activities to avoid casting doubt on the judge’s capacity to act impartially, demeaning the judicial office, or frequent disqualification).

With respect to use of the prestige of office, commentary to Canon 2B 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.

Comment 5 to Rule 3.1 of the Idaho code warns:

While judges are not prohibited from participating in online social networks, such as Facebook, Instagram, Snapchat, and the like, they should exercise restraint and caution in doing so.  A judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

Canon 2B to the Virginia code of judicial conduct provides:

The same provisions of these Canons that govern a judge’s ability to socialize and communicate in person, in writing, or over the telephone also apply to the Internet and social networking sites.  While a judge is not prohibited from participating in online social media sites or networks, a judge should exercise restraint and discretion in doing so.  A judge must avoid any online activity that would cause a reasonable person to question a judge’s ability to be impartial.

Similarly, Comment 6 to Rule 3.1 of the West Virginia code reminds judges:  “The same Rules of the Code of Judicial Conduct that govern a judicial officer’s ability to socialize and communicate in person, on paper, or over the telephone also apply to the Internet and social networking sites like Facebook.”

The preamble to the New Mexico code states:  “Judges and judicial candidates are . . . encouraged to pay extra attention to issues surrounding emerging technology, including those regarding social media, and are urged to exercise extreme caution in its use so as not to violate the Code.”

Finally, the code of conduct that applies to judges on Connecticut’s probate courts, which is adopted by the Connecticut Probate Assembly and the Probate Court Administrator, includes 2 comments on social media.

Comment 5 to Rule 3.1 regarding extrajudicial activities states:

“Extrajudicial activities” include a judge’s participation on social media.  While a judge must exercise extreme caution when engaging in any type of electronic communication, including communication by text or email, participation on online social networking sites or otherwise posting material on the Internet are particularly problematic, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  Such activity demands particular attention.  The same rules that govern a judge’s ability to socialize in person, on paper, or over the telephone apply to all electronic communications, including on the Internet and social networking sites.  While judges are not prohibited from participating in online social networks, such participation is fraught with peril, and they should exercise restraint and caution in doing so.  For example, a judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

Comment 3 to Rule 4.1 regarding political conduct states:

“Political and campaign activities” include a judge or judicial candidate’s participation on social media.  While a judge or judicial candidate must exercise extreme caution when engaging in any type of electronic communication, including communication by text or email, participation on online social networking sites or otherwise posting material on the Internet are particularly problematic, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  Such activity demands particular attention.  The same rules that govern a judge or judicial candidate’s ability to socialize in person, on paper, or over the telephone apply to all electronic communications, including on the Internet and social networking sites.  While judges or judicial candidates are not prohibited from participating in online social networks, such participation is fraught with peril, and they should exercise restraint and caution in doing so.  For example, judges or judicial candidates should not identify themselves as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

More Facebook fails

Private sanctions

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

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

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

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

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

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

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

COVID orders and memes

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

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

Political fundraiser

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

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

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

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

Sexually charged content and the NRA

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

Ex parte communications

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More Facebook fails

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

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

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

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

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

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

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

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

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

Doe did not respond.

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

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

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

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

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

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

More social media fails

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

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

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

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

* * *
The California Commission on Judicial Performance publicly admonished a judge for (1) participating in a Facebook group called “Recall George Gascón,” referring to the county district attorney, and (2) posting tweets, re-tweeting content, and liking tweets by others that expressed partisan views on controversial issues, suggested bias against particular classes of people, and were “undignified and indecorous.”  In the Matter Concerning O’Gara, Decision and order imposing public admonishment (California Commission on Judicial Performance September 14, 2021).

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

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

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

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

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

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

The Commission quoted the California Judicial Conduct Handbook:

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

* * *
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.

Recent cases

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

More Facebook fails

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* * *

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

Another Facebook fail and code comments

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

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

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

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

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

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

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

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

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

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

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

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

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

Facebook fails

Reporting
A judge asked the Massachusetts Committee on Judicial Ethics whether they were required to report that another judge had political posts, memes, links, and exchanges on a Facebook profile.  Massachusetts Advisory Opinion 2021-1.  The inquiring judge had, while on Facebook near the 2020 presidential election, viewed the apparently publicly accessible personal Facebook profile of a person they recognized from the name and photograph as a sitting Massachusetts judge, although the profile did not refer to the other judge’s judicial status.  The posts included:

  • “Expressions of support for one of the major party candidates for president;
  • References and links to negative coverage of the opposing major party’s candidate;
  • Statements that the opposing party’s candidate and his family are ‘corrupt;’
  • Posts ridiculing and demeaning two female politicians of the opposing party;
  • Derogatory comments about immigrant parents who were separated from their children at the southern border; [and]
  • Complaints about media bias in election reporting.”

In a post 10 days after the election, the other judge stated that the election was a “mess” with a link to commentary by a media personality claiming that it had been “fundamentally unfair, compromised by alleged voting irregularities, and manipulated for the political benefit of the opposing party.”

Rule 2.15(A) of the Massachusetts code of judicial conduct provides:

A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question regarding the judge’s honesty, integrity, trustworthiness, or fitness as a judge in other respects shall inform the Chief Justice of the Supreme Judicial Court, the Chief Justice of the court on which the judge sits, and if the judge is a Trial Court judge, the Chief Justice of the Trial Court.

The Massachusetts provision is identical to the model code provision except that it identifies chief judicial officers as the appropriate authority to which misconduct should be reported where the model code designates “the authority having responsibility for initiation of disciplinary process in connection with the violation to be reported.”

The committee concluded that the inquiring judge was required to report the posting judge under Rule 2.15(A).  First, the committee stated, the inquiring judge knew that the other judge had “posted the materials in question to the Facebook profile or, if the materials were posted by someone other than the judge, that the judge permitted the materials to remain on the judge’s Facebook profile.”  Second, the committee concluded that “the content on the judge’s Facebook profile violates several provisions of the Code that require judges to avoid conduct in their personal and professional lives that creates an appearance of bias.”  Third, the opinion found, “the violations raise a substantial question regarding the judge’s fitness as a judge because, by publicly posting and/or tolerating the presence of the materials in question, the judge failed to act in a manner that upholds the public’s confidence in the impartiality of the judiciary and maintains the dignity of judicial office.”  The opinion explained:

The Facebook posts at issue here expressed favor for a specific political candidate and for specific political viewpoints; denigrated and demeaned opposing political figures and viewpoints; contained content that gave the appearance of bias based on gender, ethnicity, and immigration status; and promoted a claim that the election had been manipulated for the political benefit of the opposing party.  The judge’s conduct in posting such materials, regardless of the particular political viewpoints expressed, calls into question the judge’s impartiality and “undermines public confidence in the judiciary,” . . . and therefore raises a substantial question regarding the judge’s fitness as a judge.

Deactivating
2 judges recently deactivated their Facebook accounts in response to complaints about inappropriate activity.

On learning that the Judicial Standards Board was investigating his Facebook posts and reactions endorsing and opposing candidates for U.S. President and U.S. Senate, a Minnesota judge immediately deactivated his Facebook account and admitted that his Facebook activity had been “imprudent, indecorous and contrary to the spirit of the Canons.”  In the Matter of Quinn, Public reprimand (Minnesota Board on Judicial Standards March 9, 2021).

The judge had been tagged on Facebook in numerous photographs showing him wearing a MAGA hat and piloting a boat displaying at least 2 Trump flags in the Trump Boat Parade on the Mississippi River in September 2020.  He also included a screenshot of photographs of himself in the parade published in the St. Cloud Times, with the response, “Here we are!”

The judge also “liked” Donald J. Trump’s Facebook page and on that page:

  • Commented, “Trump will steam roll this election.  Those who’s [sic] eyes are closed move their mouths more to make up for their insecurities.  Stay strong; pray against evil,” on a video captioned, “We’re showing that we can create jobs, safeguard the environment, and keep energy prices low for America.”
  • “Liked” posts that stated:
    • “I will NEVER support Biden ever . . . . he’s been in politics for 49 years no wonder why the U.S. has so many problems.”
    • “I was thrilled to be back in WISCONSIN tonight with thousands of loyal, hardworking American Patriots!  47 days from now, we are going to win Wisconsin, and we are going to win 4 more years in the White House!  #MAGA.”
    • “One of the worst polls in 2016 was the @FoxNewsPoll.  They were so ridiculously wrong.  Fox said they were going to change pollsters, but they didn’t.  They totally over sample Democrats to a point that a child could see what is going on.  Rasmussen, which was accurate, at 52%.”
    • “Joe Biden is a disgrace.  A 47 year career waste.  Wake up people do we need someone like this as president.”
  • “Liked” a post regarding the Duluth News Tribune’s endorsement of Jason Lewis for U.S. Senate and commented on another post regarding the endorsement, “Whoa!  That is a weighty endorsement for Lewis and quite an indictment of [Senator Tina] Smith since she’s had years to work on her platform and record.  Clearly a big difference here.”
  • Commented, “Dips**t Biden.  Oops,” in response to an image that stated, “I’ve decided to cut back on political posts for a bit . . . instead I will share some word scrambles.  MURPT0022.” 

The Board stated that it does not discourage judges from using social media because it recognizes that judges maintain family and social connections through social media and often feel isolated due to their work, especially during the COVID-19 pandemic.  However, it emphasized that judges can and must participate in social media without violating the code of judicial conduct.

The Board found that the judge’s Facebook activity endorsed and opposed candidates for public office and “abuse[d] the prestige of judicial office to advance the personal or economic interests of the judge or others.”  The Board stated that the judge’s posts regarding his participation in the Trump Boat Parade “were the most flagrant example of his endorsement of a candidate for public office.”

The Board noted that, even though the judge “maintained a private Facebook page, not all of his activity remained private;” his “like” of the Trump page was public and his approximately 70 Facebook friends, some of whom are lawyers and judges, were able to view and publicize his Facebook activity.  The Board stated that “maintaining a private Facebook page, especially when a judge has a large group of Facebook friends, does not provide a shield for a judge who violates the Code.”

* * *
The West Virginia Judicial Investigation Commission publicly admonished a judge for comments she made on her Facebook page about a pharmacist arrested for destroying COVID-19 vaccine dosages and about the siege at the U.S. Capitol.  In the Matter of Jackson, Public admonishment (West Virginia Judicial Investigation Commission February 24, 2021).

On January 5, 2021, the judge posted a story on Facebook about the arrest of a Wisconsin pharmacist for allegedly destroying multiple doses of the COVID-19 vaccine by leaving them out a room temperature overnight, and she made negative comments about his alleged actions.  On the same day, Disciplinary Counsel contacted the judge and informed her that the comments violated the prohibition on public comments about pending cases, and the judge agreed to take the comments down.  Reminding the judge that she had previously been asked to take other Facebook posts down, Disciplinary Counsel explained that an ethics complaint would be opened against her if she did it again.

Despite that warning, from January 6-11, the judge repeatedly posted stories and/or inappropriate comments about the siege at the U.S. Capitol in Washington D.C. on her Facebook page.  For example, some of the comments were about former West Virginia House of Delegates member Derrick Evans, who allegedly participated in the siege and was the subject of federal criminal charges.

Facebook friend:          As the video ends, Evans shouts “Our house!  And then, “I don’t know where we’re going, but I’m following the crowd.”  What is he?  12?
Respondent:                  [Name] that is very disrespectful . . . to 12-year olds!
* * *
Facebook friend:          It sad, but I’m glad he was.  No one is above the law!
Respondent:                  [Name] it’s not sad!
Facebook friend:          It’s sad that delegates or any elected official would do this is what I mean.  I’m not sad he was arrested.  I’m sad and mad about what they all did!
Respondent:                  YES

Each of the judge’s posts elicited numerous responses.

In her response to Disciplinary Counsel’s complaint, the judge said:

Please be advised that on January 11, 2021, I deactivated my Facebook account. I am embarrassed by my actions and sincerely apologize. I must point out in my defense that my Facebook page was not accessible to the public but was viewable only by my friends and family. I was expressing my feeling to friends, not the general public. My second point is that nothing on my page identified me as a judge, although of course, my friends know that. You have been more than patient with me, and I regret any inconvenience this has caused you. I have no plans to reactivate my Facebook account until I retire. . . .

The Commission stated that “the concept of a ‘public comment’ applies to Facebook whether a judicial officer opens his or her personal page only to family and friends or to the public at large. For purposes of the term ‘public,’ the [Commission] believes the portion of the definition contained in Black’s Law Dictionary which states that the ‘word does not mean all the people nor most of the people nor very many of the people of a place but so many of them as contradistinguishes them from a few’ is appropriate . . . .” The Commission continued:

At all times when engaged on social media judges should remember the immortal words of industrialist Henry Ford that “[u]nder pressure, the mouth speaks when the brain is disengaged and sometimes unwittingly, the gearshift is in reverse when it should be in neutral.” Judges can never go wrong when they limit their Facebook posts to comments about family, pets, sports or the weather. In all other respects, a judge must maintain his/her impartiality particularly when commenting about issues that may come before the court.

Law enforcement alignment
Accepting an agreed statement of facts, the New York State Commission on Judicial Conduct publicly admonished a judge for posting on his Facebook page 2 photographs of himself wearing a sheriff’s uniform and personal comments expressing his appreciation for law enforcement officers and describing his appearance at a “Back the Blue” event.  In the Matter of Peck, Determination (New York State Commission on Judicial Conduct March 19, 2021).

The judge’s Facebook page is viewable by the public.  The judge retired from the Ontario County Sheriff’s Office in December 2017.

On July 19, 2020, the judge attended a “Back the Blue” event in which a procession of motorists drove their vehicles to show support for law enforcement.  For approximately 30 minutes, the judge displayed a sign approximately 2 feet by 3 feet on which he had painted “Thank You” in blue lettering.

On July 21, the judge’s Facebook page displayed a “cover photo” depicting himself in his Ontario County Sheriff’s uniform while standing with 3 other individuals, one of whom was his daughter who was wearing a similar uniform.  The photograph was taken at his daughter’s police academy graduation in August 2018.  By July 21, the judge’s “cover photo” had approximately 277 Facebook “likes,” 2 “shares,” and 37 comments from other Facebook users.  

The judge also posted:

Today, my daughter … and I stood at the side of the road and watched in appreciation as hundreds of motorcycles and other vehicles passed by …  It was the Back the Blue ride in support of law enforcement …

I always tell her that she and her brothers and sisters in blue are still appreciated in OUR community.  Today’s event, and the overwhelming number of participants is a true example of that appreciation.  We both had tears streaming down our cheeks as folks waved and honked, acknowledging our sign thanking them for their support.

It is a tough time for law enforcement.  To those of my friends who served or continue to, always remember that you have chosen the noblest of professions and you ARE making a difference …

With this post was a photograph of the judge and his daughter wearing Ontario County Sheriff’s Office uniforms, taken at his daughter’s police academy graduation in August 2018.  By July 21, this post had approximately 940 Facebook “likes,” 355 “shares,” and 219 comments from other Facebook users.  Among the comments was one that identified him as “Judge!”

In April 2019, the Commission had issued the judge a letter of dismissal and caution for posting a comment criticizing a candidate in an election for county sheriff.

The Commission found that the judge’s “public Facebook post in which he aligned himself with and expressed his strong support for law enforcement personnel, casts doubt on respondent’s ability to act impartially when he presided over matters which involved law enforcement personnel.”

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

More Facebook fails

Independent investigation

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

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

Public support

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

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

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

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

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

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

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

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

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

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

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

* * *

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