Interesting posts

Several judicial discipline cases warn judges to resist the temptation to create social media posts that may interest or entertain the readers but do not reflect well on the dignity of the judiciary.

For example, one judge began a post with:  “In the category of, You can’t make this stuff up!”  The post purported to be a verbatim account of his conversation with the tenant in an eviction proceeding involving drugs found in an apartment.  (Instead of names, the judge referred to the individuals by their role in the case – “landlord,” “tenant,” etc.)

A maintenance man testified to finding powder that tested positive for cocaine under the bathroom rug in the tenant’s apartment.  The tenant testified that the heroin was not his — cocaine, not heroin, was his drug of choice and he keeps all of his drugs in a safe.  When asked how the heroin got into his apartment, the tenant said, “I don’t know.  Maybe one of the hookers I had in my apartment left it.”

The post ended:  “Needless to say, the Court ruled in favor of the landlord.”

When one of his Facebook friends asked if this was a true story, the judge posted:  “Yes.  It goes without staying but the tenant wasn’t the brightest bulb in the chandelier.”

Publicly reprimanding the judge, the Arizona Commission on Judicial Conduct found that the post and reply “mocked the intelligence level of the tenant,” creating an appearance of impropriety and diminishing public confidence in the judiciary.  Urie, Order (Arizona Commission on Judicial Conduct June 12, 2018).  See also Massachusetts Advisory Opinion 2016-9 (judge should not tweet about a defendants using profanity or throwing urine and feces at a judge because “a reasonable person may perceive these posts to be needlessly offensive, or as making light of behavior by litigants who may have mental health problems”).

In publicly reprimanding a judge for comments posted on his Facebook page, the Minnesota Board on Judicial Standards found that the judge had “put his personal interest in creating interesting posts ahead of his duty to maintain the appearance of impartiality.”  In the Matter of Bearse, Public reprimand (Minnesota Board on Judicial Standards November 20, 2015).

n one post, the judge had stated:  “[L]isten to this and conclude that lawyers have more fun than people.”  He then described a medical school graduate’s petition to expunge her disorderly conduct conviction based on her assault on her boyfriend after she found him having sex with her best friend.  He explained that he had granted the petition even though it was filed about 2 years early under the statute and he would probably be reversed if the prosecution appealed.”  Comments on the post included:  “I am always heartened by the application of common sense.  An excellent decision, in my opinion,” and “You’re back in the saddle again Judge.”

Those favorable comments, the Board stated, created the appearance that the judge’s decisions “could be influenced by the desire to make a good impression of himself on his Facebook page.”

The West Virginia Judicial Investigation Commission publicly admonished a judge for posting on his Facebook page a photo that showed him arraigning a woman on felony charges of forging her dying mother’s will to inherit more than $1,000,000.  Public Admonishment of Hall (West Virginia Judicial Investigation Commission October 31, 2017).  The photo came from a story run by a television station about the case.  The caption underneath the photo read, “Police:  Woman Exploits over One Million Dollars from Dying Mom,” and the news logo appeared to the right of the heading.

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

The judge argued that, because the photo did not include “any comment, opinion, or statement,” it was not a comment about a pending case.  The Commission strongly disagreed.

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

The Commission emphasized that the judge’s post was “designed to elicit responses from his friends because that’s what Facebook is meant to be – an alternate public means of communication.”  The Commission noted that the largely negative comments were “no surprise” and the judge’s “failure to remove them constituted a tacit endorsement,” concluding he had acted in a way that was “contrary to the neutral and detached demeanor of all judges but . . . undoubtedly popular with his friends.”

Deteriorating relationship

Accepting her resignation, the Colorado Supreme Court publicly censured a former court of appeals judge for (1) disclosing to an intimate, non-spousal partner the vote of a court of appeals division on a case prior to the issuance of the decision and (2) using inappropriate racial epithets in communications with her intimate partner.  In the Matter of Booras (Colorado Supreme Court March 11, 2019).  In March 2018, the Court had granted the request of the Commission on Judicial Discipline to suspend the judge with pay pending the disciplinary proceedings.  The judge resigned after the Commission recommended her removal.

In 2007, the judge began a 10-year relationship with a man whom she met online (“J.S.”).  J.S. told the judge that he was divorced and living in Denver, although the judge later learned that he was married and living in California.  They did not see each other frequently, but they communicated often, and the judge described their relationship as “intimate” and believed it would lead to marriage.

By early 2017, however, “the relationship was deteriorating, and Judge Booras had good reason to distrust J.S.”

On February 21, 2017, the judge and other judges in a division of the court of appeals heard oral argument in a case about the extent to which a state commission was required to consider public health and the environment in deciding whether to grant permits for oil and gas development.

The next morning, the judge sent an e-mail to J.S. that said:

We had an oral argument yesterday re: fracking ban where there was standing room only and a hundred people in our overflow video room.  The little Mexican is going to write in favor of the Plaintiffs and it looks like I am dissenting in favor of the Oil and Gas Commission.  You and Sid [a colleague of J.S.] will be so disappointed.

“The little Mexican” was a reference to one of Judge Booras’s colleagues, “a Latina who would ultimately write the opinion for the majority in that case.”  Judge Booras wrote the dissent.

At some point in 2018, J.S.’s wife contacted the judge, and the judge told her about the affair. Shortly thereafter, J.S. provided The Denver Post, the chief judge of the Court of Appeals, the governor, the Commission on Judicial Discipline, and counsel for the plaintiffs in the case several communications from the judge.

The Court found that the judge had disclosed confidential information — the court’s vote in the case — to a third party.  The Court also found that the judge “had used an inappropriate racial epithet in communicating with J.S.,” noting that it was not the first time as she had referred to her ex-husband’s new wife, a woman of Navajo descent, as “the squaw” in an e-mail to J.S a year earlier.

The Court held that the judge’s “use of an inappropriate racial epithet directed at one of her colleagues” and her disclosure of confidential information “obviously impaired harmony and trust among her co-workers . . . .”   The Court emphasized that the judge’s “relationship with the colleague at whom her ‘little Mexican’ comment was directed” was particularly affected, noting that the other judge had been “justifiably shocked and deeply hurt by Judge Booras’s comments” and that a close working relationships with other judges is “integral to a collaborative decision-making body” like the court of appeals.  The Court also explained that “knowledge of Judge Booras’s racially inappropriate comments could understandably have caused concern among parties of diverse backgrounds, and particularly those of Latino and Native American ancestry, who inevitably would have appeared before Judge Booras were she to have returned to the court of appeals.  The judicial system cannot function properly if public confidence in a court is eroded in this way.”

The judge argued that “a judge’s communications with an intimate partner should be given First Amendment protection unless the speech ‘violates a specific narrowly-tailored rule of judicial conduct or falls within an ordinary exception to the First Amendment.’”  Rejecting that argument, the Court held that “inappropriate racial epithets and derogatory remarks are not matters of legitimate public concern warranting First Amendment protection.”  The Court also concluded that any First Amendment interests “are outweighed by the state’s countervailing interests.”

 

Throwback Thursday

10 years ago this month:

  • Pursuant to an agreement, the Tennessee Court of the Judiciary publicly censured a judge for threatening an attorney with contempt, using profanity. Public Censure of Moore (Tennessee Court of the Judiciary May 1, 2009).
  • Pursuant to an agreement, the Tennessee Court of the Judiciary publicly censured a judge for ordering a drug test for a spectator in his courtroom. Public Censure of Moore (Tennessee Court of the Judiciary May 1, 2009).
  • The Texas Review Tribunal affirmed the public warning of a judge for knowingly failing to timely file campaign finance reports as required by law and ignoring the State Commission on Judicial Conduct’s numerous requests and orders that he respond to its inquiries. In re Priddy, Opinion (Review Tribunal Appointed by the Texas Supreme Court May 18, 2009).
  • Affirming the findings and conclusions of the Judicial Conduct Board, the Vermont Supreme Court suspended a judge for 6 months without pay for his handling of the sale of a county building to a non-profit organization while serving on its board. In re Boardman, 979 A.2d 1010 (Vermont 2009).

 

Throwback Thursday

20 years ago this month:

  • Pursuant to a stipulation, the Utah Judicial Conduct Commission publicly admonished a judge for failing to recuse from cases involving an attorney who had assisted in the settlement of a civil dispute in which the judge had been involved before becoming a judge and failing to disclose the relationship. Inquiry Concerning Glasmann, Informal resolution (Utah Judicial Conduct Commission May 25, 1999).
  • The West Virginia Supreme Court of Appeals publicly censured a former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid about the charges. In the Matter of Binkoski, 515 S.E.2d 828 (West Virginia 1999).
  • Adopting the recommendation of the Judicial Hearing Board, the West Virginia Supreme Court of Appeals admonished a judge for personally soliciting campaign contributions. In the Matter of Tennant, 516 S.E.2d 496 (West Virginia 1999).

Back to 1982:  Professional courtesies and judicial office

Gratuitously referring to judicial status to get favorable treatment is a very common form of judicial misconduct.  In cases last year:

  • A judge identified himself as a judge to court personnel when disputing his own child support payments and discussing child emancipation. In the Matter of Palmer, Order (New Jersey Supreme Court November 8, 2018), adopting  (censure).
  • A judge said to state troopers who handcuffed him after he failed several field sobriety tests, “I’m a f**cking judge. I would never do anything to hurt you man.  Come on,” and “You’re not going to give me any courtesy?  None?”  In the Matter of Benitez, Order (New Jersey Supreme Court September 6, 2018), adopting (censure).
  • A judge asserted her position to avoid the consequences of her arrest after a state troopers found her in a vehicle on the shoulder of the interstate, for example, saying to a lieutenant at the police barracks, “Please don’t do this;” “I have to go to work;” “I have arraignments;” and “I have court right now.” In the Matter of Astacio, 112 N.E.3d 851 (New York 2018) (removal for this and other misconduct).
  • After her vehicle struck a police van, a judge voluntarily identified herself as a judge to the police several times, presented her judicial identification card, and made several other references to her judicial status while repeatedly questioning the need for an accident report and the delay in preparing the report in an attempt to curtail the investigation and be allowed to leave. In the Matter of Michels, Determination (New York State Commission on Judicial Conduct December 27, 2018).

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So far in 2019, 3 judges have been disciplined for variations of that classic misconduct.

The New York State Commission on Judicial Conduct publicly censured a judge for not only invoking his judicial position when asking the police for assistance in unlocking his personal vehicle but also threatening to refuse to do arraignments in the future if they refused his request.  In the Matter of Abbott, Determination (New York State Commission on Judicial Conduct February 7, 2019).

One day, at approximately 3:00 p.m., the judge accidentally locked the keys inside his personal motor vehicle, which was parked at a hospital.  The judge called 911 and asked Patricia Latta, a Newark Police Department clerk, to send police personnel to unlock his vehicle.  Latta told the judge that, pursuant to department policy, the police did not respond to requests to unlock cars unless it was an emergency, such as a child locked inside.  Latta offered to contact a local automotive garage to assist the judge.

The judge replied that the police had “done this before for me,’’ and then said in a raised voice, “I am Judge Abbott of Palmyra and I just won’t do any arraignments for you anymore.”  (The judge arraigns defendants brought to Palmyra by the Newark Police Department officers when the justice and associate justice of the Newark Village Court are unavailable.)  Latta felt intimidated and asked a sergeant to assist the judge with his locked vehicle.  Eventually, officers unlocked the judge’s vehicle.

The Commission found that the judge’s identification of himself as a judge “standing alone, would have constituted an implicit request for special treatment, which is inconsistent with the high ethical standards required of every judge” and that his statement that the police had “done this before for me” made his request for special treatment “explicit, clearly conveying that his judicial status entitled him to deference and exempted him from policies that apply to others.  Asking the police to depart from an established policy for his personal benefit was a particularly improper assertion of special influence.”

Further, the Commission stated, the judge compounded his misconduct by threatening “to retaliate against the Newark police if they did not respond favorably to his request.”  Emphasizing that “[p]erforming arraignments for police from an adjoining village” was part of his duties, the Commission explained that “[t]here is no justification for a judge’s refusal to perform judicial duties out of personal pique, and even threatening to do so is detrimental to public confidence not only in the integrity of the judge’s court, but in the judiciary as a whole.”

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An Ohio judge’s disappointment that his expectation of favoritism was thwarted by a state  trooper influenced not just his reaction to the ticket received by his daughter but his handling of a completely unrelated case involving other state troopers.  Disciplinary Counsel v. Marshall (Ohio Supreme Court February 28, 2019).  At one point, the judge told the prosecutor that he “wanted to take the trooper back to 1982 . . . [b]ack when there was professional courtesy [my] daughter would not have received a ticket.”

On September 1, 2016, Ohio State Highway Patrol Sergeant David Stuart stopped 17-year-old A.M. for speeding and having expired tags.  A.M. immediately identified herself and stated that her father was “Judge Marshall.”  A.M. called her father on her cell phone and asked Stuart to talk to the judge.  Stuart declined but took the phone when A.M. handed it to  him.  The judge disputed Stuart’s assertion that the tags were expired and asked Stuart if he was going to give A.M. a ticket.  Stuart stated that he was going to write A.M. a ticket for speeding because she “was running 14 over.”  Stuart gave A.M. a citation for speeding and a warning for the expired tags.

Afterward on several occasions, the judge made comments to County Assistant Prosecuting Attorney Jay Willis about A.M.’s case and Stuart’s behavior.  For example, one day when Willis was in the judge’s courtroom on an unrelated matter, the judge said, “I didn’t like the trooper.  He didn’t listen to me.  There used to be a code in this county—I’m a judge and he shouldn’t have written my daughter [a ticket].”  Feeling pressured by the judge, Willis asked County Prosecuting Attorney Mark Kuhn to handle A.M.’s case; Kuhn agreed.

The county juvenile court policy allows only the lawyers representing the parties in the courtroom for pretrial conferences.  Prior to A.M.’s pretrial conference, the magistrate assigned to her case told the bailiff that she was not going to treat A.M.’s case differently and that the judge would not be allowed in the courtroom.  When A.M.’s pretrial hearing was about to begin, the bailiff opened the door and announced, “Counsel only,” but the judge said, “I’m her father and I’m an attorney, and I’m coming in,” pushed the bailiff’s arm out of the way, and walked into the courtroom.  The magistrate signaled to her bailiff that it was okay for the judge to enter the courtroom.  After speaking with counsel, the magistrate scheduled another pretrial conference for August 10, 2017.

On August 10, before A.M.’s pretrial conference began, A.M.’s attorney (Eugene Meadows) and Kuhn were discussing the case outside the courtroom when the judge approached them and interjected, referring to Stuart, “If he cuts my little girl, I’m going to cut him.”  During the conference, the judge stated that Stuart had been unprofessional and had shown him no professional courtesy.  The magistrate set A.M.’s final adjudicatory hearing for September 18.

On September 14, the judge told Kuhn that he would like to meet with Stuart and that, if Stuart agreed to meet, he would have A.M. plead guilty, but if Stuart refused to meet, they would take the case to trial.  Kuhn ended the discussion.

The next day, while 2 assistant prosecuting attorneys, a state trooper, and a defense attorney were waiting outside his office for a suppression hearing in an unrelated criminal case, the judge yelled for his secretary to get Stuart on the phone, made derogatory comments about Stuart, and indicated that Stuart had failed to return his calls.

Before the suppression hearing began, the parties reached an agreement, and the assistant prosecuting attorney told the judge that the case had been resolved.  But the judge stated, “No it hasn’t.  I don’t trust the highway patrol like I used to.”  He then took the bench and forced the parties to conduct the suppression hearing.  When the state trooper was being questioned about the traffic stop that led to the defendant’s arrest, the judge interrupted and questioned the trooper about the calibration of his speedometer and the condition of the tuning forks that were used to check the calibration.  Eventually, the judge threw down his legal pad and walked off the bench.

On November 17, the attorneys and Stuart were waiting outside the courtroom in the hallway before a hearing for A.M. commenced.  The judge approached Stuart and said, “Are you Trooper Stuart?”  Stuart responded, “I’m Sergeant David Stuart, nice to meet you.”  The judge turned away, then looked back at Stuart and said, “a**hole.”

During the hearing, the judge interjected twice during Stuart’s testimony.  Upon the conclusion of Stuart’s testimony, Meadows asked for a short recess.

Prior to the resumption of the hearing, Meadows asked the judge, “You’re sure you want to do this?”  The judge replied, “Yes,” and took the stand.  The judge claimed that he was qualified to testify as an expert witness about radar based on what he learned while he was a city prosecuting attorney, a position he last held in 1994.  The judge testified that the best way to determine the condition of the troopers’ turning forks would be to bring them into the courtroom.  He also commented that the “trooper was rude” and that Stuart was the only trooper that he had had issues with in his entire career.

At the conclusion of the hearing, the magistrate was going to issue a decision from the bench, but Kuhn requested that the magistrate delay because he was worried that an adverse decision would impact an upcoming felony criminal matter he had in front of the judge.

The magistrate issued her decision on December 17, and the disposition hearing was scheduled for January 30, 2018.  On January 23, the judge called the magistrate.  They had the following exchange:

[Magistrate]:  What can I help you with?
[Marshall]:  I just want you to know, have you ever had an expert come in and testify about radar?
[Magistrate]:  Judge, this is probably not a conversation we should be having
[Marshall]:  Have you ever had an expert testify about radar
[Magistrate]:  I know we should not be having this conversation—
[Marshall]:  If not, you cannot make that finding.  You questioned my credibility.  Screw that.  Bye.

The judge hung up the phone.  At a status conference the following day, the magistrate disclosed the judge’s telephone call and asked whether the attorneys wanted her to recuse herself.  Both Meadows and Kuhn consented to the magistrate’s continuing to preside over A.M.’s case.

On January 30, A.M. appeared with Meadows and the judge for the final disposition of her case.  Before the magistrate announced the disposition, the following exchange occurred:

[Magistrate]:  Okay.  All right.  Your Honor, is there anything you want to say on your daughter’s behalf?
[A.M.]:  He’s good.
Marshall:  She’s a good kid and I, you questioned my credibility and that is a problem but I don’t get a say.

The magistrate then adjudicated A.M. a juvenile traffic offender and imposed court costs.  The judge inquired, “Are there points involved in that?”  When the magistrate said there were, the judge stated, “So I have to pay the insurance for it.”  The judge also said, “When I was the Municipal Court Judge, I had to have an expert come in an[d] testify as to the accuracy of the radar and if you haven’t done that, I don’t believe you can go forward.”  The magistrate replied, “Well, those are things to raise in an objection. . . .  All right.  Anything else?”  The magistrate then concluded the matter.

After acknowledging that his conduct was inappropriate, the judge resigned.   Accepting a consent-to-discipline agreement, the Ohio Supreme Court suspended him from the practice of law for 6 months.

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In a classic example of the appearance of impropriety standard in the influence context, the New York Commission admonished a judge for conveying his personal interest, as a member of the high school basketball referees’ association, in a case involving 2 referees who were allegedly accosted after a game.  In the Matter of Forando, Determination (New York State Commission on Judicial Conduct March 25, 2019).

As a member of the Capital District Board of Women’s Basketball Officials since 1972, the judge assigns referees to officiate over high school girls’ basketball games.  He assigned Dan Dineen and John Kelleher to a junior varsity game at the Argyle Central School on January 29, 2016.  At the conclusion of that game, a spectator, D.F., allegedly had an altercation with Dineen and Kelleher for which he was charged with unlawful imprisonment and harassment and directed to appear in the Argyle Town Court on February 9.  Dineen reported the incident to the judge by e-mail, noting that police had been called to the scene.

The Commission stated:

The moment that respondent learned, on the day of the incident, about the altercation involving the referees in which police had been called to the scene, he should have realized that as a judge, especially in the same county, he should refrain from any involvement in the matter that, intentionally or not, would telegraph that a judge was interested in the case.  Instead, throughout the pendency of the criminal matter, he repeatedly interjected himself into the case in an apparent attempt to monitor its progress and, in doing so, repeatedly signaled his interest in the matter to those who were directly involved in it, including the presiding judge.

Before the Commission, the judge testified that he had “let the referee hat probably supersede the judge hat” but that he had “no ulterior motive” in contacting the other judge and the attorneys.  The Commission emphasized that, “[r]egardless of a judge’s intent, such communications may convey an appearance of misusing the prestige of judicial office for personal advantage,” and that judges “must assiduously avoid those contacts which might create even the appearance of impropriety.”  The Commission stated that “any communication by a judge about a pending matter, even to ask about scheduling or procedures, is improper since it conveys the judge’s interest in the case and can be interpreted as an implicit request for special treatment . . . .”

Throwback Thursday

5 years ago this month:

  • Based on a stipulation, the Minnesota Board on Judicial Standards publicly reprimanded a judge for (1) failing to follow the law in 6 cases, (2) improper ex parte orders in 4 cases, (3) chronic tardiness and related misconduct, and (4) discourtesy to court staff; the Board also required the judge to comply with conditions, including submitting a plan to address the causes of his misconduct and identifying a mentor. In the Matter of Cahill, Public reprimand and conditions (Minnesota Board on Judicial Standards April 21, 2014).
  • The Minnesota Board on Judicial Standards publicly reprimanded a judge for (1) failing to supervise his law clerk and approving inaccurate time sheets, (2) refusing to allow a defendant to withdraw his plea, (3) trying a defendant in absentia, and (4) discourtesy to a psychologist; the Board also imposed conditions on the judge including completing an anger management program or therapy, identifying a mentor, and writing a letter of apology to the psychologist. In the Matter of Walters, Public reprimand and conditions (Minnesota Board on Judicial Standards April 22, 2014).
  • Agreeing with the recommendation of the Commission on Judicial Qualifications, to which the judge consented, the Nebraska Supreme Court publicly reprimanded a judge for instructing jail personnel to release a friend, who had been arrested on a felony drunk driving charge, from jail on his own recognizance before arraignment. In re Complaint Schatz, 845 N.W.2d 273 (Nebraska 2014).
  • Pursuant to the judge’s agreement, the New Hampshire Judicial Conduct Committee publicly reprimanded a former judge for statements in a meeting with public defenders that could reasonably be interpreted as manifesting bias based on gender. Lewis, Reprimand (New Hampshire Judicial Conduct Committee April 1, 2014).
  • The New York State Commission on Judicial Conduct publicly censured a judge for (1) riding in a police car with a defendant after arraigning him, recommending that the defendant hire an attorney who was the judge’s business partner, giving him legal advice, and presiding over the case; (2) using his judicial title to promote his law firm and business; (3) imposing fines that exceeded the maximum authorized by law; and (4) making improper political contributions. In the Matter of Burke, Determination (New York State Commission on Judicial Conduct (April 21, 2014).
  • The Tennessee Board on Judicial Conduct publicly censured a former child support magistrate for changing a child’s name from “Messiah,” applying her own religious beliefs in her decision, and publicly commenting on her decision while the case was still pending. In re Ballew, Opinion (Tennessee Board on Judicial Conduct April 25, 2014).
  • The Utah Supreme Court approved the implementation of the Judicial Conduct Commission order, based on a stipulation, publicly reprimanding a judge for yelling at a grandfather in an adoption hearing. In re Andrus, Order (Utah Supreme Court April 23, 2014).

Judicial responsibility:  Reasonable measures, confrontation, and supervision

One of the features of the high ethical standards to which judges are held is that sometimes judges get in trouble for something someone else did.

For example, a Florida judge was sanctioned for submitting financial disclosure reports for 2016 and 2017 that failed to disclose 3 free trips she had taken with her husband — even though she had not known the trips were free and even though the reports had been completed by her husband, who managed their family finances.  The judge and her husband had received free accommodations from a hotel chain, allegedly as part of an illegal compensation scheme for her husband’s assistance with permitting problems while he was director of the Miami Beach Building Department.  The judge was held responsible for the inaccurate reports because she failed to take reasonable steps to stay apprised of her financial circumstances, failed to ask who paid for the trips, and failed to verify the accuracy of the reports despite certifying to their veracity when she signed them.  Pursuant to a stipulation, she was suspended for 90 days without pay, fined $5,000, and publicly reprimanded.  Ortiz (Florida Supreme Court January 29, 2019).  (The Court had rejected 2 prior stipulations that imposed less severe sanctions.)

A New Mexico judge was sanctioned, in part, for receiving at his court e-mail address numerous e-mails from his family members, particularly his cousin, that were offensive, degrading, pornographic, racist, and sexist.  The judge testified that, after he received the first inappropriate e-mail, he told his cousin, “Cuz, you got to stop this,” and that he told family members over and over again to stop sending e-mails to his judicial e-mail address, but they continued to use that address.  In its findings, the Judicial Standards Commission noted that the judicial information division had instructed the judge how he could put an end to the e-mails, but he had not followed their instructions.

The Commission stated:

The Respondent maintained his innocence throughout the entirety of the inquiry by stating that he only received the e-mails and should not be punished for merely being a recipient.  His position is that his relatives sent him completely inappropriate sexual, derogatory, racist, and sexist e-mails to his judicial e-mail, that he provided to them, that he told them to quit and they didn’t, so it is their fault even though Respondent could have stopped them by changing his judicial e-mail but he didn’t want them to feel like they were the bad guy.

The Commission concluded:

It is far beyond negligent, and not the result of mere carelessness or lack of computer skills, that Respondent was unwilling to stop his relatives from sending him offensive e-mails of a sexual, racist, sexist, derogatory nature over a period of many years. . . .  The Respondent’s behavior in not confronting his family members and stopping the e-mails is offensive and shows that the Judge was indifferent to the impact of his actions on his reputation and integrity and the impact on the reputation and integrity of the judiciary as a whole.

Adopting the Commission’s findings, the New Mexico Supreme Court ordered the now-former judge never to hold judicial office in the state.  In the Matter of Castaneda, Order (New Mexico Supreme Court February 12, 2018).

A California judge was sanctioned for his testimonial published on a business’s web-site identifying the author as a superior court judge and including a photograph of the judge in his judicial robe.  The judge did not authorize the use of his title or provide the photograph or authorize its use or even know the photograph would be used.  However, neither did he review the final text of the testimonial or instruct the business not to use his judicial title and photograph in judicial robes or even ask how his comments would be used or where they would be published.

The judge had retained the Redd Group to survey voters about a local attorney’s judicial campaign.  After the election, the judge called David Cooper, an employee of the Redd Group, to compliment him on the survey results.  Cooper asked if he could use the judge’s comments as a testimonial for the Redd Group.  The judge agreed.  The testimonial, published on the Redd Group web-site, stated:

I was helping a fellow attorney run for county judge.  Our mail went out ahead of schedule and The Redd Group accommodated for our poll to be done accordingly with many more respondents than were promised.  We got the detailed results in less than 24 hours.  I recommend the Redd Group for all your polling needs.  Excellent work! – Steven C. Bailey

The California Commission on Judicial Performance publicly censured the now-former judge and barred him from seeking or holding judicial office for this and other misconduct (see also  discussion below).  Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

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Several judges have been sanctioned for content on their Facebook pages posted by others to whom they had delegated the task without sufficient oversight.  For example, the Texas State Commission on Judicial Conduct admonished a judge for Facebook posts advertising a school supply drive, soliciting donations for an individual, and advertising his donation of a rifle to a charitable raffle — even though a member of his judicial staff handled his Facebook page, many posts were made without his prior authorization, and he was often unaware of what appears on his page.  Public Admonition of Metts (Texas State Commission on Judicial Conduct October 3, 2018).  Similarly, the Texas Commission reprimanded a judge for campaign advertisements for other candidates posted on his Facebook page, in addition to other misconduct — even though he had not authorized the posts and did not know about them until he received the Commission’s inquiry.  Public Reprimand of Lopez (Texas State Commission on Judicial Conduct June 6, 2018).

Unauthorized and inappropriate posts have also been a problem on judicial campaign Facebook pages.

For example, the Florida Supreme Court removed a judge for criticism of her campaign opponent for representing criminal defendants on a Facebook page that was created by an electioneering communications organization formed by her campaign consultant.  Inquiry Concerning Santino, 257 So.3d 25 (Florida 2018).  The Court held that the judge’s actions “—individually and through her campaign, for which she was ultimately responsible—unquestionably eroded public confidence in the judiciary.”  The Court emphasized the finding of the hearing panel that nothing in the code of judicial conduct permitted, “Santino to delegate to her campaign manager the responsibility for written materials created or distributed by the campaign.”

The Nevada Commission on Judicial Discipline reprimanded a former judge for a photoshopped picture of herself and an actor that her campaign manager had posted on her campaign Facebook page, which misled the public that “the Rock” had endorsed her campaign, and for her subsequent comment on the post:  “I’m ‘almost’ taller than him.  Almost.”  In the Matter of Almase, Findings of fact, conclusions of law, and imposition of discipline (Nevada Commission on Judicial Discipline October 22, 2018).  The Commission found that the judge had not taken reasonable measures to ensure that her campaign representatives complied with the code of judicial conduct, noting her contract with her campaign manager did not contain any restrictions on the posting of social media materials, such as obtaining prior approval from the judge, that the judge did not discuss with her campaign representatives the prohibitions in the code, and that the judge failed to properly supervise her campaign representatives.  The Commission took the “opportunity to remind judicial candidates that campaign-related social media platforms, such as Facebook, maintained by a campaign committee or others, do not insulate them from the strictures of the Code.”

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The Arizona Commission on Judicial Conduct publicly reprimanded a former judge for publicly disclosing his candidacy for sheriff without resigning and initially refusing to disclose to the Commission the identity of the individual who took his campaign Facebook page live.  Barth, Order (Arizona Commission on Judicial Conduct February 14, 2019).

The California Commission on Judicial Performance publicly censured a now-former judge and barred him from seeking or holding judicial office for permitting a campaign coordinator to use his judicial title on the Facebook page for his campaign for attorney general and in posts on her law firm’s Facebook page promoting his candidacy, in addition to other misconduct (see also discussion above).  Inquiry Concerning Bailey, Decision and order (California Commission on Judicial Performance February 27, 2019).

In 2016, Martha Romero, the judge’s Southern California Campaign Coordinator, created the “Judge Steven Bailey” Facebook page for the judge’s campaign for state attorney general.  (Judges in California are allowed to run for another office if they take a leave of absence; the judge’s failure to take a leave of absence was another grounds for his discipline.)  In November and December 2016, several posts on the page promoting his campaign referred to the judge by his judicial title.

Rejecting the judge’s argument that he cannot restrict the First Amendment rights of others, the Commission agreed with the masters’ finding that “the judge had an obligation to take some action to prevent the improper use of his title in connection with campaign communications and events, even if it was just to instruct Romero to ensure that the Facebook page did not refer to his judicial title and position” because she was a coordinator for and “very involved” in his campaign.  The Commission also agreed that, because the standard for prejudicial conduct assumes that an objective observer is familiar with the facts, “the judge’s failure to supervise a campaign staffer and take any measures to guard against impermissible use of his judicial title would be considered prejudicial to public esteem for the judiciary in the eyes of an objective observer,” rejecting the judge’s argument that “the public would have no way of knowing if he asked Romero not to use his title.”

Romero also maintained a Facebook page for her law firm, the Romero Law Firm.  In a post on that page, Romero included photos of the judge and wrote, “My friend Judge Steven Bailey is running for California Attorney General 2018,  He is not a politician.  Please Help us!” and “Judge Steven Bailey.  Candidate for Attorney General 2018.  He will be the next Attorney General!!!  Please repost.  We need to win this!!”

The Commission acknowledged that the judge “could not force Romero to edit her posts about him or to avoid using his judicial title in future posts” but stated that he could “have asked her to modify her posts to be in compliance with his ethical obligations.”  Rejecting the judge’s argument, the Commission concluded that “Romero’s First Amendment rights are not implicated by requiring the judge to ask her to comply with a request to remove the Facebook posts.”