More Facebook fails

Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 6 months without pay for Facebook posts about a case, political matters, and a fund-raiser for a local church.  In the Matter of Johns (South Carolina Supreme Court November 16, 2016).

The judge’s Facebook account identified him as the probate court judge for Oconee County, and the account and all of his posts were accessible to all members of Facebook.

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

While the matter was before the probate court, the judge posted on Facebook:  “In the end it’s all about the money.  Always.  Unfortunately, I see it EVERYDAY.”  The judge later added:  “Once ck is in hand, they’ll disappear.”

The judge expressed great regret for his conduct and was sorry for any distress that it may have caused Z.H.’s family.  He recognized that, while he did not mention the estate by name, it would have been clear in the community what he was referring to.

The judge also made extensive political posts on Facebook, including ones in which he appears to endorse a presidential candidate.  He also engaged in fund-raising for a local church in a post.  The judge recognized that it was inappropriate for him to make political posts and to post information about a fund-raiser for a local church.  He has now removed reference to himself as a judge on his Facebook page.

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The Texas State Commission on Judicial Conduct publicly reprimanded a justice of the peace for Facebook posts that promoted the financial interests of a relative and a former judge, in addition to other misconduct.  Public Reprimand of Uresti and Order of Additional Education (Texas State Commission on Judicial Conduct October 11, 2016).

The judge has a public Facebook page that identifies her as:  “Yolanda Acuna Uresti – Judge Elect for JP Pct. 4 Pl. 2.”  The page includes her photo and identifies her as a “politician.”  The judge has not used privacy settings that would prevent members of the public from viewing her Facebook page.

While she was a candidate for judicial office, the judge’s Facebook page included links, photos, and posts promoting the real estate business of the judge’s daughter-in-law and promoting a former judge’s business as a wedding officiate.

In her written responses to the Commission’s inquiry, the judge denied she was identified on her Facebook page as a “politician,” despite the fact that her Facebook page expressly included the description of her as a “politician.”  The judge also denied responsibility for the Facebook posts promoting the businesses of her daughter-in-law and the former judge, claiming the posts were “illegal,” “unauthorized,” and the result of someone “hack[ing]” her Facebook page.  When asked, the judge stated she had not reported the “hacking” to the appropriate authorities.  According to the judge, none of the posts promoting these businesses were ever accessible to the general public.  Although the judge claimed to have deleted her Facebook account, it remained accessible as of the date of this sanction.

The Commission notes that at the time of the original posts, the judge was a judicial candidate and not yet a judge and it does not have jurisdiction over the pre-bench conduct of a judicial candidate.  However, it stated, the judge’s failure to remove the posts after she assumed the bench and the fact that the posts continue to be viewable by the public 16 months into her term, even after the Commission brought its concerns to her attention, constitutes a continuing violation of the canons.

When judges blog

Several judicial ethics committees have advised that a judge may maintain a blog but added caveats about being cautious and not violating the code of judicial conduct provisions relevant to communications by judges.  (Merriam-Webster’s on-line dictionary defines a “blog” as “a Web site on which someone writes about personal opinions, activities, and experiences.”)  The Arizona committee, for example, stated that a judge must ensure that no statements on her blog will negatively affect judicial proceedings, be perceived as prejudiced or biased, or necessitate frequent disqualification.  Arizona Advisory Opinion 2014-1See also New York Advisory Opinion 2010-138 (a judge may maintain an internet blog that comments on current events).

The Florida advisory committee stated that a judge could publish a blog that would alert readers to state appellate decisions as they were released because the judge did not plan to editorialize, criticize, or otherwise evaluate the opinions but only to briefly describe them.  Florida Advisory Opinion 2012-7.  Noting it had frequently approved judges’ speaking, writing, or teaching, the committee stated it would not make a distinction based on the technology used but warned the judge to exercise caution.  Acknowledging it was “not practicable to list all the provisions of the Code that could apply” and reminding the judge to expect “constant public scrutiny,” the committee directed the judge to “carefully examine all provisions of the Code that relate to the blog and its topics, to insure that the judge is not publishing on the blog something the judge could not ethically say in person.”  Finally, noting “that an interactive blog may invite inappropriate comment by the judge,” the committee suggested that the judge consider adding a disclaimer “that clarifies the judge does not endorse or vouch for the comments of others . . ., and that such comments do not represent the views of the judge.”

The Washington advisory committee stated that a judge may have a blog promoting “a more fair, just and benevolent society” and could respond to comments made by others on the essay the judge planned to post on the site.  Washington Advisory Opinion 2009-5.  The committee suggested that the judge should include a disclaimer that the opinions “are only those of the author and should not be imputed to other judges” and should describe the constraints on judges, such as the prohibitions on commenting on pending cases and discussing cases with persons appearing before the judge’s court.  The committee also advised the judge to consider:

  • “[T]he impression that may be conveyed when responding to comments that are posted on the blog;”
  • “[H]ow to tailor those comments to avoid any impression that the judicial officer’s impartiality might be called into question;” and
  • “[W]hether readers might perceive that the judge’s impartiality is impaired by the volume and content of the comments received.”

The committee recommended that the judge, if possible, review any comments from others before they are published on the blog or “regularly monitor the responses to make sure that the thread of the discussion does not change” into something that is prohibited.

The Connecticut advisory committee stated that a judge may be listed, including her judicial position, as an expert on a non-profit, non-partisan organization’s electronic “answer board” established to provide journalists with information on legal and constitutional.  Connecticut Advisory Opinion 2011-14.  However, the committee cautioned, the judge’s answers must be factual and instructive without expressing her opinion, indicating a predisposition with respect to particular cases, or providing legal advice.  The committee directed the judge to:

  • Monitor the web-site to ensure that it does not link to commercial or advocacy groups;
  • Stay abreast of new features on the site; and
  • Retain the right to review and pre-approve the use of biographical information.

See also Utah Informal Advisory Opinion 2012-1 (a judge may follow a blog on legal or political issues that is also followed by lawyers or politicians and need not continually monitor the contents and comments to prevent association with material that might reflect poorly on the judiciary); U.S. Advisory Opinion 112 (2014) (before commenting on a blog, a judge should analyze the post, comment, or blog to take into account the canons that prohibit judges from endorsing political views, demeaning the prestige of the office, commenting on issues that may arise before the court, or sending the impression that another has unique access to the court).

 

Another Facebook fail

Based on an agreement between the judge and the Judicial Inquiry Commission, the Alabama Court of the Judiciary suspended a judge for 6 months without pay for beginning a Facebook relationship with a woman whom he had met in his official capacity and exchanging sexually explicit messages and photos with her, often during office hours and from the offices of the probate court.  In the Matter of Archer, Final judgment (Alabama Court of the Judiciary August 8, 2016).  On an agreed list of mitigating factors, the parties noted that the judge now understands the dangers of Facebook communications and the public nature of even “private” messages on social media, has deleted his Facebook page, and no longer participates in social media.

The judge first met Ms. J.T. in April 2013, when he performed her wedding ceremony to Mr. W.T.  He noted at the time that she was 34 years old and Mr. W.T. was 68.  Approximately 1 week later, Ms. J.T. called the judge’s office and stated she wanted the marriage annulled.  The judge told her she would have to go to the circuit court.

In December 2013, Mr. W.T.’s daughter filed a petition to establish a conservatorship and to be appointed as guardian to protect his assets.  Ms. J.T. called the judge to ask that she, as the wife, be appointed guardian.  The judge informed Ms. J.T. that she needed to get an attorney.  Ms. J.T. did not appear at the hearing, and W.T.’s daughter was made guardian of his estate.

The marriage between Mr. W.T. and Ms. J.T. was annulled by the circuit court on June 11, 2014, pursuant to the agreement of the parties.

During or prior to July 2015, the judge established a Facebook account under the profile name “Judge Leon Archer.”  His Facebook profile used a picture of himself in his judicial robe and identified him as the probate judge of Tallapoosa County, Alabama.

During the summer of 2015, the judge sent Ms. J.T. a Facebook “friend” request, which she confirmed.  In January 2016, the judge initiated a Facebook messaging conversation with Ms. J.T. that lasted approximately 3 weeks.  Each message he sent to Ms. J.T. identified the sender as “Judge Leon Archer.”  Their messaging included sexually explicit content, comments, invitations or propositions, and pictures of the judge’s genitals and a female’s breasts, buttocks, and genitalia.

In late January 2016, Ms. J.T. provided a copy of the messages to a reporter.  The judge met with the reporter and admitted that the messaging occurred, including the transmittal of the nude pictures.  During the Commission investigation, the judge confirmed that a photo of a man nude below the waist sent to Ms. J.T. was a picture he had taken of himself in the courthouse and sent to Ms. J.T.

Yet another Facebook fail

Dropping his First Amendment defense to charges brought by the Kentucky Judicial Conduct Commission, a judge agreed to a 90-day suspension without pay for, in addition to other misconduct, publishing comments on Facebook that accused the county commonwealth’s attorney of advocating for all-white jury panels, that criticized the public defender and criminal defense attorneys for not publicly supporting him in his dispute with the commonwealth’s attorney, and that discussed the motion to certify the law filed on behalf of the commonwealth’s attorney while the case was pending before the Kentucky Supreme Court.  In re Stevens, Agreed order of suspension (Kentucky Judicial Conduct Commission August 8, 2016).  The judge made similar comments during a presentation to the Louisville Bar Association.

On November 18, 2014, the judge dismissed a jury panel in a criminal case, claiming the panel did not represent a fair cross-section of the community.  The Kentucky Attorney General, on behalf of Jefferson County Commonwealth Attorney Thomas Wine, filed a motion for certification of law with the Kentucky Supreme Court to determine, among other issues, whether a judge has the authority to dismiss a jury panel without providing evidence of a systemic exclusion of a class of persons.  A TV station posted an article on-line entitled, “Louisville judge questioned for dismissing juries based on lack of minorities” about the case.  Following that article, the judge published comments on Facebook that included:

  • Going to the Kentucky Supreme Court to protect the right to impanel all-white juries is not where we need to be in 2015. Do not sit silently.  Stand up.  Speak up.
  • But whatever you believe the lack of representation is, it is clear that all-white juries are not in the best interest of a community that is 20% black and where the jail population stands at 55% black…. And that is what Tom Wine is trying to do.
  • Wine has called me a racist. And set the media on me to deceive the people while he does his deeds.  If people, particularly affected people, would stand up and call him out, he would go right back into the corner.
  • If you believe you have a right to seat all-white jury panels in Louisville, Kentucky in 2015, tell the people. Wine shouldn’t deceive the people by focusing on me and calling me a racist.
  • Tom Wine, the Jefferson Commonwealth Attorney and Louisville’s top prosecutor, is going to the Kentucky Supreme Court to have my ruling overturning and protect his right to seat all-white jury panels in Louisville, Kentucky …. If successful, his actions will have a negative impact on all citizens, particularly our black citizens.
  • After his acquittal, the Jefferson Commonwealth’s Attorney Thomas B. Wine filed a motion with the Kentucky Supreme Court to determine I was incorrect in dismissing an all-white jury panel.
  • When the prosecution loses a trial and goes complaining to the Kentucky Supreme Court about their entitlement to the all-white jury panel the trial judge set aside, their purpose is readily apparent.
  • Complaining he should have had an all-white jury panel after losing a trial is poor form at the very least. At most it is something much more sinister.
  • The truth is the Jefferson County Commonwealth’s Attorney does not have to pursue his right to impanel all-white juries. He is doing so because he wants to.
  • We have received a tremendous outpouring of support from all over the country. Thank you to Dr. Boyce Watkins, Ricky Smile, D.L. Hughley and other national figures who have spoken out in favor of the case and against the Jefferson Commonwealth’s Attorney’s action before the Kentucky Supreme Court. . ..  There is very little question about your intent when a black defendant is acquitted by a jury of eight whites and four blacks and you complain about the trial judge granting a defense motion to dismiss an all-white jury panel.
  • If asked, even the Jefferson Commonwealth’s Attorney may offer his “support” for diverse juries. Would that be good enough?  Of course not.  His actions say the exact opposite.
  • History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming he is entitled to an all-white jury panel. No matter the outcome, he will live in infamy.
  • The Jefferson Commonwealth’s Attorney is for all white jury panels.

The judge’s criticism of the public defender and criminal defense attorneys included:

  • Anybody can say they “support” diverse juries. Especially members of the criminal defense bar.  They certainly cannot afford to say they are against them.  They would be hypocrites…err…they are hypocrites.
  • Why didn’t the Public Defender respond? He did.  He just never notified me.  You will have to ask him why he remains silent when he is the one who asked me to set aside the jury panel and so many of his clients will be affected by an adverse decision.  We have obtained a copy of his response.  It is little wonder the motion for certification was granted.  The response did not address the issues presented.
  • I will be posing some questions to him as to why he said things he said in his response. And why he is quiet when his lawyers routinely ask for the relief I granted him in this case.
  • Open letter to the Louisville Metro Public Defender and Louisville Criminal Defense Lawyers:  Dear Counsel:  Where are you?  You asked me to dismiss the jury panel consisting of 40 white jurors and 1 black juror.  Yet you are silent.  You are the ones who regularly ask me to set aside jury panels for lack of racial diversity.  Yet you are silent.  The Jefferson Commonwealth’s Attorney is for all-white jury panels.  The people are for racially diverse jury panels.  What are you for?  Thank you for your consideration.  Judge Olu Stevens.

The judge made comments regarding the motion to certify the law while the case was pending before the Kentucky Supreme Court, including:

  • If you have ever used Facebook to say “vote for me,” but remain publicly silent or indifferent on this issue that threatens the inclusion of black people and other minorities on our jury panels, shame on you. Stand up for something other than yourself.  Speak the truth.
  • When a black man is acquitted and then the prosecutor asserts his right to an all-white jury panel, those who remain silent have chosen comfort over principle.

 

Judicial campaigns on social media

28 of the 100 elected judges who responded to a 2014 survey said their campaigns had used social media.  2014 Conference of Court Public Information Officers New Media Survey, at page 44.  That percentage seems low compared to campaigns for other elective offices and is, therefore, likely to increase.  The New Mexico Supreme Court recently acknowledged “the utility of an online presence in judicial election campaigns . . . .”  State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016).

A judicial election campaign may use social media to promote the candidate by, for example, creating a Facebook page.  (This post will use the terms for actions on Facebook to describe conduct on social media in general, but the principles apply to analogous actions on other social media platforms.  Where relevant, this post will also rely on advisory opinions discussing web-sites, not just interactive social media.)  As the Florida advisory committee explained, the code of judicial conduct “does not address or restrict a judge’s or campaign committee’s method of communication but rather addresses its substance.”  Florida Advisory Opinion 2009-20Accord North Dakota Advisory Opinion 2016-2; ABA Formal Opinion 462 (2013).

A candidate’s social networking pages may allow visitors to list themselves as “fans” or supporters of the candidate.  Florida Advisory Opinion 2009-20.  The Florida committee stated that lawyers who practice before the judge may be fans of a judge’s campaign page even though the committee prohibits judges from being Facebook “friends” with lawyers who appear before them.  The distinction, the committee explained, is that, unlike a “friend” request on a personal page, on a campaign’s social networking site, the “judge or the campaign cannot accept or reject the listing of the fan,” and, therefore, “the listing of a lawyer’s name does not convey the impression that the lawyer is in a special position to influence the judge.”  See also ABA Formal Opinion 462 (2013) (“it is unlikely to raise an ethics issue for a judge if someone ‘likes’ or becomes a ‘fan’ of the judge through the judge’s [electronic social media] political campaign site if the campaign is not required to accept or reject a request in order for a name to appear on the campaign’s page”).

Most judicial ethics opinions on the issue seem to assume, without expressly requiring, that a campaign page will be separate from candidate’s personal or official page.  The Missouri committee advised that “when a judge chooses to use social media as part of the judge’s election campaign, best practice would suggest that a separate public social media site be used.”  Missouri Advisory Opinion 186 (2015).  The committee stated that the “site should be limited to the judge’s identity, qualifications, present position or other facts that are relevant to allowing the voters to make an informed decision.”

Responsibility

The 37 judges who in the 2014 survey said they were not sure if their campaigns used social media should pay more attention in any future campaigns.  Keeping informed is the only way a candidate can comply with the code of judicial conduct requirements that a judicial candidate “take reasonable measures to ensure” that the campaign committee does not engage in activity that the candidate is prohibited from doing and “review and approve the content of all campaign statements and materials produced by the candidate or his or her campaign committee . . . before their dissemination.”  Rules 4.1(B) and Rule 4.2(A)(3).  There is no exception to those requirements for social media even if a judicial candidate entrusts her campaign’s social media component to her campaign committee.  (A candidate also retains that responsibility if she delegates maintenance of a social media site to a third person other than a campaign committee.  New Mexico Advisory Opinion Concerning Social Media (2016).)

Thus, the candidate is responsible for what the committee places on the internet and must ensure that the committee does not make statements there that the candidate cannot make.  See Florida Advisory Opinion 2012-15.  For example, the Missouri committee stated that, like judicial candidates, judicial campaign social media sites “must not misrepresent any facts, make pledges or promises of conduct in office other than the faithful and impartial performance of judicial duties or make statements that detract from the dignity of judicial office.”  Missouri Advisory Opinion 186 (2015).  The requirement that a judicial candidate “maintain the dignity appropriate to judicial office” was deleted from the model code in the 2007 revisions (although the requirement still applies to judges at all times), and many states no longer have it in their rules for judicial campaigns.  It does seem like a best practice, however, if not a requirement, for social media efforts and other campaign conduct.  See New Mexico Advisory Opinion Concerning Social Media (2016).

A campaign social media page “may not endorse or solicit funds for another candidate for public office” because a judicial candidate may not do so.  New Mexico Advisory Opinion Concerning Social Media (2016).  This includes any communication of approval or support, such as “liking” another candidate’s social media page.

A judicial candidate who is on a slate with other candidates may, according to the New York advisory committee, permit his campaign committee to add the committees of those other candidates as Facebook “friends” and/or to click “like” on their campaign committees’ pages because that link creates “no more appearance of an impermissible ‘endorsement’ than campaigning door-to-door or appearing in joint advertisements with other candidates,” which is expressly allowed by the code.  New York Advisory Opinion 2015-121.  However, the committee added that a judicial candidate must instruct his “campaign committee to refrain from any comments that would create an appearance the candidate directly or indirectly publicly endorses other candidates . . . , including by making any comments on other candidates’ qualifications . . . .”  Further, the committee emphasized that any such Facebook connections must be made from the committee’s page, not from the candidate’s personal account.  See also New York Joint Advisory Opinions 2012-84/2012-95(B)-(G) (a judicial candidate may include a link from her campaign web-site to a political organization’s web-site that contains information promoting her campaign).

All restrictions on judicial candidates and campaigns apply on-line as well as in-person, but the exact rules vary from state-to-state.  The model code restrictions (Rule 4.1) that seem particularly relevant to social media prohibit a judicial candidate from:

  • Making speeches on behalf of a political organization;
  • Publicly endorsing or opposing a candidate for any public office;
  • Soliciting funds for a political organization or a candidate for public office;
  • Personally soliciting or accepting campaign contributions other than through a campaign committee;
  • Publicly identifying as a candidate of a political organization;
  • Seeking, accepting, or using endorsements from a political organization;
  • Knowingly or with reckless disregard for the truth making a false or misleading statement;
  • Making a statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court; and
  • In connection with cases, controversies, or issues that are likely to come before the court, making pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.

 

Solicitations

Because the code prohibits a judicial candidate from personally soliciting campaign funds except through a campaign committee (Rule 4.1(A)(4)), the Florida judicial ethics committee advised that “Websites and Facebook pages promoting the candidacy of a judge or judicial candidates should be established and maintained by these committees, and not by the judge or judicial candidate personally.”  Florida Advisory Opinion 2010-28See also Florida Advisory Opinion 2008-11 (a campaign web-site maintained personally by a judge may not refer to and facilitate the giving of financial and other support to the judge’s re-election campaign, but the judge’s campaign committee may create and maintain a campaign web-site that does so).  A judicial campaign site that solicits funds must make it clear that the candidate does not maintain it personally.  Florida Advisory Opinion 2012-15.  The word “contribute” may be placed under “volunteer, endorse, education, experience, family, and photos” if the site is clearly managed by the committee and does not give the appearance that the candidate is managing the site or its content.  Florida Advisory Opinion 2010-21.

The North Dakota committee advised that a judicial candidate “may establish electronic social media pages along with his/her campaign committee and participate in those aspects of maintaining the social media pages that do not involve financial solicitation on behalf of the candidate.”  North Dakota Advisory Opinion 2016-2.  The committee stated that social media pages established by the candidate or the candidate’s committee may link to a web-page that provides a place that allows for visitors to contribute to the candidate’s campaign.  See also New York Advisory Opinion 2007-135 (although a judge may not solicit campaign contributions on her own web-site, the judge’s campaign committee may do so on a web-site it sponsors if all donations are directed to the committee and not to the judge herself).

The New Mexico Supreme Court recently recommended that a judicial campaign social media site be established and maintained by the campaign committee, not a judicial candidate personally.  State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016).  The New Mexico judicial ethics committee advised that a judicial campaign committee may use a social media site to raise funds but that, because of the personal solicitation clause, a judicial candidate who maintains a social media site may not engage in fund-raising on his site and any financial contributions must be donated directly to his campaign committee.  New Mexico Advisory Opinion Concerning Social Media (2016).  (To comply with requirements specific to New Mexico, the opinion added, a judicial candidate must ensure that his committee tries to avoid soliciting contributions from litigants in pending cases, fund-raising results cannot be shared with the candidate, and the candidate must not access fund-raising information on the site.)

The New Mexico committee also advised that a “candidate should be cautious when inviting people to ‘like’ or ‘share’ a campaign page or post and take care to avoid any suggestion that in context might be perceived as a direct, personal solicitation of contributions . . . .”  The committee added that a “candidate may include a link from a campaign social media page to a web page maintained by the campaign committee, but any solicitation for contributions should be incidental to the structure of the page.”

Similarly, the Louisiana committee stated that a judicial candidate may link her personal web-site or social media page to her campaign committee’s social media page even if the campaign page is used in part to solicit funds, but not if it is used solely for fund solicitation.  Louisiana Advisory Opinion 271 (2016).  However, the committee explained, the link must be to a home page, not directly to a contribution page, although a link to a page that in turn links to a separate contribution page is permitted.  In addition, the committee stated, “when providing the link, the judicial candidate should make no mention of campaign contributions, but state something very general, such as:  ‘To find out more about my campaign, visit my campaign committee’s website at the following link.’”

The ABA advisory committee stated that “Websites and [electronic social media] promoting the candidacy of a judge or judicial candidate may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally.”  ABA Formal Opinion 462 (2013).  However, the 2007 ABA Model Code of Judicial Conduct does not prohibit judicial candidates from personally soliciting public statements of support (the 1990 model code did), so the basis for that advice is unclear unless the reference should have been to personal solicitations of contributions.

The North Dakota code prohibits a candidate from personally soliciting public statements of support and financial contributions except by “in-person oral solicitations to groups of 25 or more people” or by signing “printed or electronic materials” distributed by the campaign committee.  Thus, the advisory committee stated that a candidate may ask a visitor to a campaign social media page to “like” or “share” the page.  North Dakota Advisory Opinion 2016-2.  That a person may respond to a candidate’s public post or group solicitation by visiting a web-page where funds are solicited does not raise the concerns addressed by the rule, the committee concluded.  The committee did caution that, “on social media, just as in person, a candidate should avoid the sort of direct personal solicitation that could lead to allegations of bias, such as personal solicitations directed at individuals by private message or email.”

Ex parte communications, comments on pending cases

The West Virginia advisory committee stated that a judge should not post on her campaign web-site videos in which she answers questions about family law because she would be engaging in the impermissible practice of law and “potentially” in ex parte communications.  West Virginia Advisory Opinion 2016-1.  The committee stated that a judge or judicial candidate could post videos about procedures and what statutes say on child support calculations, for example, but “should be very careful to ensure that the explanations do not cross the line into legal advice or discussions concerning pending or impending matters.”  The committee also warned that such videos are likely to generate follow-up questions that a judge cannot answer.

The New Mexico Supreme Court stated that a judge who is a candidate should post no personal messages on a campaign social media page “other than a statement regarding qualifications,” should not allow public comments, and should not engage in any dialogue, “especially regarding any pending matters that could either be interpreted as ex parte communications or give the appearance of impropriety.”  State v. Thomas, 2016 N.M. LEXIS 149 (New Mexico 2016).  The Court did not address arguments that the trial judge’s social media posts about the case required reversal of a defendant’s convictions because it had reversed the conviction on the grounds that a prosecution witness testified via Skype, denying the defendant his right to confront adverse witnesses.  However, the Court took the opportunity to discuss its concerns about judges’ use of social media, cautioning judges to avoid both impropriety and the appearance of impropriety.  During the trial, the judge had posted on his campaign Facebook page, “I am on the third day of presiding over my ‘first’ first-degree murder trial as a judge.”  After trial, but before sentencing, the judge had stated, “In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch.  Justice was served.  Thank you for your prayers.”

Noting the interactive nature of social media sites, the New Mexico advisory committee identified a “potential for non-parties to post comments on pending cases” on a candidate’s social media page that “may lead to the appearance that the judge is participating in ex parte communications or statements concerning pending or impending cases . . . .”  New Mexico Advisory Opinion Concerning Social Media (2016).  The committee cautioned a judge to guard against such an appearance, and, if an ex parte communication does occur, to take the remedial action required by the code, that is, prompt notification of the parties and an opportunity to respond.

The committee noted that a judicial campaign committee may act as a “buffer” if the committee maintains the campaign social media site, rather than the judge.  The committee emphasized that a campaign committee “must vigilantly scrutinize the site to avoid any appearance that the judge is receiving ex parte communications and/or participating in improper communications.”

The New Mexico advisory committee also considered whether a campaign committee must fully insulate the judge from any improper communications, noting the committee could remove a communication without comment if the judge does not know about it.  The committee suggested that some ex parte communications would require a response that the judge would have to approve, which would necessitate remedial action in the case.  It seems, however, that a campaign committee should be able to effectively “screen” most if not all inappropriate on-line comments, eliminating the need for disclosure to the judge and, therefore, to the parties in a case, just as court staff may “screen” ex parte attempts to communicate with a judge in more traditional contexts.  See, e.g., New York Advisory Opinion 2015-178 (a housing court judge who repeatedly receives attempted ex parte communications from elected officials on behalf of their tenant-constituents should, if possible, have staff members return such communications to the sender without exposing the judge to the substance; if the judge does not review the communication, disclosure is not required, and the judge has no further obligation).

Social media endorsements

The prohibition on judges’ publicly endorsing political candidates applies on social media just as it does on any other forum or in any other format.  See California Judges’ Association Advisory Opinion 66 (2010).  The Mississippi Supreme Court recently reprimanded a judge for endorsing a political candidate on social media, in addition to other misconduct.  Commission on Judicial Performance v. Clinkscales (Mississippi Supreme Court June 9, 2016).  The judge had posted:  “Cast your vote in the Senate District 16 Special Election.  I will be voting for Angela Turner Lairy! . . .  Let’s not lose this seat!”  See also Inquiry Concerning Krause, 166 So. 3d 176 (Florida 2015) (30-day suspension without pay for a judge who used social media to ask her friends to help her judicial candidate-husband correct perceived misstatements by his opponent); In the Matter of Romero (New Mexico Supreme Court February 13, 2015) (permanent retirement of a judge who had endorsed candidates for public office on Facebook and continued to endorse them and post their campaign materials there after telling the Judicial Standards Commission he would stop).

The act of “liking” a campaign on Facebook, becoming a fan or “friending,” or the equivalent indication of support or approval of a candidate on any social media also constitutes an endorsement and, therefore, is prohibited.  See Massachusetts Advisory Opinion 2016-1; New Mexico Advisory Opinion Concerning Social Media (2016); New York Advisory Opinion 2015-121U.S. Advisory Opinion 112 (2014); ABA Formal Opinion 462 (2013).  See also Kansas Commission on Judicial Qualifications 2012 Annual Report (private cease and desist order for judge who “liked” a comment on a candidate’s Facebook page); Order of private reprimand (Kentucky Judicial Conduct Commission December 5, 2014) (private reprimand of a judge who “liked” the Facebook pages of lawyers and a judicial candidate and posted offensive comments about a lawyer on Facebook); Order of private reprimand (Kentucky Judicial Conduct Commission April 2, 2015 (private reprimand of a judge who “liked” the Facebook pages of lawyers, law firms, and candidates).

The prohibition on endorsements applies to judicial candidates as well as judges.  Thus, the Kentucky Judicial Conduct Commission publicly reprimanded a judicial candidate for “liking” a Facebook post that publicly endorsed a candidate for public office and making a contribution to a candidate.  In the Matter of Cohen, Agreed order of public reprimand (Kentucky Judicial Conduct Commission July 21, 2014).

At least 2 judicial ethics advisory committees have distinguished between social media “friending” of elected officials or individuals who are candidates and “liking” an election-related Facebook page, permitting the former and prohibiting the latter.  Noting many judges are friends in the real world with individuals who are running for office, the Utah committee stated that a judge may also be “friends” in the virtual world of social media with those candidates without violating the prohibition on endorsements.  Utah Informal Advisory Opinion 2012-1.  However, the committee warned judges to be careful about making any statements on the social media page that might create the appearance of an endorsement.  Moreover, noting many individuals who are candidates “have a Facebook page specifically designed to promote the individual’s candidacy,” the Committee advised that judges “may not be a ‘friend’ on that type of webpage, as that may constitute endorsement.”

Similarly, the Arizona committee stated that, if a state representative, for example, is running for re-election, a judge “may not be a ‘friend’ of the campaign committee’s Facebook page or ‘like’ that page, as such associations would indicate that the judge supports and is endorsing that individual’s reelection.”  Arizona Advisory Opinion 2014-1.  The committee noted that, if a judge clicks “like” on a Facebook page, her Facebook profile will thereafter indicate that she “likes” that other page.  However, the committee concluded that friending an elected state representative’s official Facebook page is not a prohibited endorsement (although it could raise a disqualification issue in a case in which the representative is a litigant, lawyer, witness, or other participant).

Most states have the prohibition on endorsements by judges and judicial candidates in their codes of judicial conduct, although some states allow endorsements of at least some judicial candidates at least at certain times.  Rule 4.1(A)(3) of the ABA Model Code of Judicial Conduct, for example, provides that a judge or judicial candidate shall not “publicly endorse or oppose a candidate for any public office,” while Rule 4.2(B)(3) allows a judicial candidate, including an incumbent judge running for re-election, “to publicly endorse or oppose candidates for the same judicial office for which he or she is running.”  The endorsement clause has survived constitutional challenge, most recently in Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016).

Judges and social media

In a new code of judicial conduct effective December 1, 2015, the West Virginia Supreme Court of Appeals has included a comment 6 to Rule 3.1 that provides:

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.

This is the first code to include an express reference to social media.  Thus, a new section has been added to the document “Social media and judicial ethics,” kept up-dated on-line on the web-site of the Center for Judicial Ethics.  The sections are:  citations to judicial ethics advisory opinions on social media, code of conduct provisions referencing social media, judicial discipline cases involving social media, judicial campaigns and social media, and judicial disqualification cases involving social media.