As part of the NCJFCJ’s In Session e-magazine we are proud to feature an article from our Past Presidents in our Past President’s Corner. In this issue we feature a recent article from Judge Thomas Hornsby (Ret.) featuring Judicial Ethics Update.
Judicial Ethics Update
By: Judge Thomas E. Hornsby, (ret.), NCJFCJ Past President
This article is a brief sampling of recent Judicial Advisory Opinions and disciplinary decisions involving ethical issues and potential pitfalls for juvenile and family court judges. Judges should examine their respective state opinions and disciplinary decisions, and if need be, obtain an advisory opinion before engaging in activities that may involve ethical problems.
The status of the state revisions of their respective Judicial Codes of Conduct in light of the 2007 revisions to the ABA Model Code of Judicial Conduct is still in a state of flux. In reviewing the digest of Judicial Advisory Opinions cited below, judges should note the date of the opinion and whether it was adopted prior to or after the stated dates of revision. Nothing contained herein is to be considered rendering legal advice.
Included in this article are opinions involving some of the issues about ex parte communication, political activity, and social networking. These issues are also addressed in the context of the usage of social media by judges. When examining the ethical implications of social media, the opinions address the issues of Appearance of Impropriety, Improper Communications with Lawyers and Others, Extrajudicial Activities, Identification of the Judge or Judicial Employee, Dignity of the Court, Confidentiality and Political Activity.
Judges are advised that they should be extremely cautious in participating in social networking sites and that participation does not otherwise result in violations of their respective Codes of Judicial Conduct.
My gratitude to Cynthia Gray, Director NCSC Center for Judicial Ethics, ncsc.org/cle for her research which serves as the basis for this article.
See also recent posts on the blog of the Center for Judicial Ethics, ncsjudicialethics.org. The Center for Judicial Ethics Blog: New posts every Tuesday plus Throwback Thursdays (to prior opinions and disciplinary decisions).
PART 1-POLITICAL ACTIVITY
MEMBER OF A POLITICAL PARTY: May a judge, “…as a member of a political party, engage in certain political activity, such as ‘writing to [state or federal] representatives or senators…expressing…personal positions; attending meetings, rallies or events for candidates for office; volunteering for such candidates in any capacity at their office or in contact with the general public; canvassing in other states to support candidates for national office or candidates for office in those other states; [or] any similar efforts to support candidates for any political office.” even if the judge does not disclose her judicial position? New York Judicial Opinion 20-51 (June 26, 2020) prohibits judges from engaging directly or indirectly in any political activity except in support of his/her election campaign or re-election to office campaign. “A Sampling of recent Judicial ethics opinions” by Cynthia Gray, 7/21/2020, Advisory Opinions, https://wp.me/p4GPcA-Vh.
MARCHING by Cynthia Gray, New Post on Judicial ethics and discipline, http://ncscjudicialethicsblog.org/2020/08/09/marching/ “Judges sometimes ask judicial ethics advisory committees whether they can participate in marches, vigils, and similar issue-related community events”. Here are some of the cases cited in this blog: Arizona Advisory Opinion 2018-6 (December 14, 2008) “requires judges to refrain from public publishing their affiliation with the judicial branch unless an event is directly related to the law, the legal system, or the administration of justice, and even if the march, rally, or protest is related to the law, the legal system, or the administration of justice, the judge must leave if the event proves problematic.” New York Advisory 0pinion 2010-59 does not allow a judge “to accept an award from a Violence Intervention Program and may not appear at a candlelight vigil for those affected by domestic violence.”
Judicial participation in marches and other issue-related community events, Compiled by Cynthia Gray, Director NCSC Center for Judicial Ethics, www.ncsc.org/cle., updated July 28, 2020. The First Amendment to the U.S. Constitution protects the right to assembly and of free speech and the 14th Amendment applies that right to the states. One can argue that these rights protect judges from violating their respective Judicial Canons of Ethics by participating in Black Lives Matter Marches and other protests. However, advisory opinions differ with that argument.
The following judicial ethics advisory opinions cited and complied by Cynthia apply to those Issues:
The California Supreme Court Committee on Judicial Ethics Opinions 2020-14 (July 20, 2020) posed the question “May judicial officers ethically participate in public demonstrations and rallies about racial justice and equality, or make public statements about those matters, under the Code of Judicial Ethics?”
“Summary of Conclusions”
The Committee concluded that even though “…judicial officers my feel a moral obligation to support these issues, and other social justice issues, by participating in public demonstrations and rallies, or by making public statements…” “…judges have a paramount duty to comply with judicial canons to promote the public’s confidence in judicial impartiality….” “…before attending or otherwise participating in a public demonstration or rally, or making a public statement on matters of concern, judges must examine whether their conduct is ethically permissible, under the Code of Judicial Ethics.”
“Judges may not participate in a public demonstration or rally if: (a) participation might undermine the public’s confidence in the judiciary, (b) the event relates or is likely to relate to a case pending before a court, relates to an issue that is likely to come before the courts, or is reasonably likely to give rise to litigation and the judge’s attendance might to lead to disqualification; (c) participation would or is likely to cause a violation of the law, for example violating a curfew; (d) participation would create the appearance of speaking on behalf of, or lending the prestige of office to a political candidate or organization; or (e) participation would interfere with the proper performance of judicial duties.”
“In determining whether participation would be appropriate, judges should examine the official title of the demonstration or rally, its stated mission, its sponsors, and its organizers.” However, “In addition to or in place of attending and personally participating in a public statement about matters relating to racial justice and equality,…” See also, Indiana Advisory Opinion 2020-1, summarizing several other opinions on this subject, and recommending that judges should consider the title of the event, the purpose of the event, the organizers and sponsors of the event, the details about the event and the potential role of the judge in the event, and concluding that “A Judge may participate in public events addressing social issues if the judge can do so in a manner that does not impinge upon the independence, integrity, and impartiality of the judiciary.”, at p. 7.
Maryland Judicial Ethics Committee Request Number: 2020-13 (July 22, 2020), concluded that: “Based on the general facts of this request, including a description of march or protest, or rally associated with the Black Lives Matter movement as focusing on law enforcement and perceived problems with the justice system, as well as the Committee’s general knowledge that these events may include signs containing messages that could cause a reasonable person to question then judge’s impartiality; we conclude that a judge should not participate in this type of event”. At p. 4. The opinion mentioned signs including messages such as “Defund the Police and “We Can’t Breathe”. In accord, see Arizona Supreme Court Judicial Ethics Advisory Committee Opinion 2018-6, 2018 WL 7288537, advising the propriety of judges and judicial participation in marches, rallies, and protests; The Connecticut Committee on Judicial Ethics Opinion 2020-03 (June 5, 2020), involving participation in “A Silent March of Black Female Attorneys of Connecticut; No. 2016-20, (12/09/2016) concluded that participation in …the Women’s March to stand against misogyny, racism, and other biases and bigotries that threaten the rule of law.” “…a reasonable person would perceive the Women’s March as a political protest and the Code prohibit your participation”. At pages 5 and 6; and New York Advisory Opinions 2020-92/93 June 18/g20 prohibits a judge from participating in an informal “walk for justice” organized by a bar association in response to the death of an African-American man in police custody. IJEC No. 2019-1 advises that “A judge may participate in the March for Science [to be held in Washington, D.C. and in hundreds of other cites throughout the U.S. with our violating the Illinois Code of Judicial Conduct addressing the appearance of impartiality, activities intended to improve the law, civic activities, and political activities, but before attending other events of that nature a judge should consider the risk that the issues that are the subject of those events might be likely to come before the courtier adversely impact judicial independence or the appearance of impropriety or bias.
Participation of law clerks, interns, and assistants: At issue in Colorado Judicial Ethics
Advisory Board (CJEAB) Advisory Opinion 20-02 July 17, 2020, was whether “…law clerks and externs may participate in protest demonstrations and if they may use social media to make posts condemning racism and to express general support for various reforms being discussed in the public arena”. At p. 1. The court reviewed cases from other jurisdictions before coming to the conclusion that “The Board has no jurisdiction over the actions of law clerk or externs because the Code does not apply to them. Nevertheless, because Rule 2.21(A) provides that judges must require their staff to act in a manner consistent with the Code, judges must direct their staff to act in a manner consistent with the judges’ own obligations under the Code. In the context of current events, judges may issue statements regarding the law and encouraging equal application of judges. Judges, however, should not make political or divisive statements, not only because of the appearance of impropriety but because such matters may come before them. For the same reason, judges should not participate in political marches or rallies supporting the Black Lives Matter or Blue Lives Matter movements, and judges must be very cautious in their use of social media, including posts, endorsements, and validations.” at p. 7.
In accord, see D.C. Advisory Committee on Judicial Conduct MEMORANDUM Opinion No. 14, which advises that law clerks and interns “…should not take a publication on any controversial issue, whether or not the issue is likely to come before the court.” The Committee also advised, “…law clerks and interns not to publicly express opinions on current controversies about the Black Lives Matter movement, police conduct in specific cases, systemic or institutional racism in current police practices, or the response of federal, state, or local governments to these issues.” Also, the Committee advised that “Consistent with the restrictions on taking public positions, law clerks and interns should not attend rallies or protests concerning issues that become the subject of intense public debate.” p. 3.
E-MAILS: The Connecticut Committee on Judicial Conduct in Opinion 2017-08 (July 20, 2017) considered “Must a Judicial Official unsubscribe from organizations that the Judicial Official does not belong to but which organizations send emails concerning political or similar issues?” The Commission advised that “The Judicial Official’s receipt and reading of such emails is subject to the following conditions. 1) The Judicial Official should not form relationships with persons or organizations that may convey the impression that these persons or organizations are in a position to influence the Judicial Official. Rule 2.4. 2) A Judicial Official should disqualify himself or herself from a proceeding when the Judicial Official’s email communications with a lawyer is likely to result in bias or prejudice concerning the lawyer for a party or the party. Rule 2.11. 3) The Judicial Official should not use his or her judicial title in connection with the e-mails and should request and obtain adequate assurances that his or her judicial title will not be published or used by the organization for any purpose. 4) The Judicial Official should regularly examine the activities and rules of the organization to determine whether it is proper for the Judicial Official to receive communication and should carefully consider whether specific viewpoints, programs, or activities of the organization undermine confidence in the Judicial Official’s independence, integrity, and impartiality. Rules 3.1, 3.7, and 4.1. 5) The Judicial Official’s identity must not be revealed to other e-mail recipients.”
PART 2-EX PARTE COMMUNICATIONS
Judges in one Judicial District received a letter from groups seeking to assist tenants in evictions. Nebraska Judicial Ethics Committee Opinion 20-1(June 17, 2020) concluded that “The coalition’s letter is not an ex-party communication to the judges. The judges or their designee may if they choose to meet with attorneys to discuss scheduling matters at any time”. “It would be appropriate, efficient, and in keeping with the spirit of the Nebraska Revised Code of Judicial Conduct to encourage other attorneys or interested parties to participate in the meeting”. In accord, see Nebraska Judicial Ethics Committee Opinion 2019-1 June 18, 2019. New Post on Judicial Ethics and Discipline, A Sampling of recent judicial ethics advisory opinions, by Cynthia Gray, July 21, 2020.
The Alabama Court of the Judiciary in Case No. 51, In the Matter of Marvin Wiggins, reprimanded the judge for violating Canon 3A(4) of the Alabama Canons of Judicial Ethics by initiating and considering ex-party communications with the mother and father in a pending child custody proceeding. New post on Judicial Ethics and Discipline, Recent Cases by Cynthia Gray, December 17, 2019.
The California Commission on Judicial Performance November 6, 2019 in Inquiry Concerning Laettner, Decision and Order, removed a judge from office for engaging in multiple acts of misconduct, including “…engaging in an improper substantive ex-party substantive ex-party conversation with a prosecutor, outside the presence of a public defender; engaging in an improper ex-party conversation with a public defender in a public hallway of the courthouse in the presence of potential jurors…”. New Post on Judicial Ethics and discipline, Recent Cases by Cynthia Gray.
The Supreme Court of New Jersey, November 20, 2019, In the Matter of Christine Jones-Tucker, A Judge of the Municipal Court, publicly reprimand the judge for misconduct including violation of “Canon 3 Rule 3.8 (except as otherwise authorized by law or court rule, a judge shall not initiate or consider ex parte or other communications concerning a pending or impending proceeding). Her ex parte emails on New Year’s Eve to a prosecutor and an ex parte exchange with the prosecutor in open court formed the basis of the violation. New post on Judicial Ethics and discipline, Recent Cases by Cynthia Gray, November 17, 2019.
Juvenile and Family Court judges are often involved with a professional or volunteer, such as a CASA, who works with the court. California Judges Association Judicial Ethics Committee Opinion No. 77 April 2019 addresses “Ethical Issues When Court Investigators and Support Staff Give the Court Information Concerning Pending Litigation-Canon 3B(7)”. Special thanks is given to Ethics Committee member NCJFCJ Past President Judge Leonard Edwards, Santa Clara Superior Court, Retired, for preparing the opinion. The opinion sets forth several hypothetical questions and answers. The opinion concludes that “The professionals who work with the court have a special relationship to the court. They provide information or perform a service that either provides the court with information or provides service to the clients. When one of these professionals/volunteers has a special need to talk with the court, except in special circumstances, the communication would be an improper ex parte communication. Usually, a written report is the proper method of communication with the court. Any report must be shared with all of the parties in the case. However, if the communication involves only calendaring or other issues, communication is not improper. Therefore, a judge should carefully determine what the purpose and nature of the communication are before participating in the conversation”. At p. 6. Judicial ethics and discipline, a blog of the Center for Judicial Ethics of the National Center for State Courts, A sampling of recent judicial ethics advisory opinions Posted on July 23, 2019, by Cynthia Gray.
Florida Supreme Court Judicial Ethics Advisory Opinion No. 2020-05 permits a judge presiding over Dependency/Delinquency docket to meet with the attorneys working for Children’s Legal Services to discuss docket management, scheduling issues and expectations for motion practice, without also inviting other stakeholders including attorneys for the Guardian Ad Litem Program, the Office of the Regional Counsel, the office of Public Defender, the office of the State Attorney, the Department of Juvenile Justice and private attorneys who have appeared in active cases before the presiding judge “…as long as the judge does not discuss any pending or impending cases thereby violating the rules against ex parte communication and does not create any doubt as to the judge’s impartiality”. Judicial Ethics and Discipline, A Blog of the Center for Judicial Ethics of the National Center for State Courts, A sampling of recent judicial ethics advisory opinions, Posted on July 21, 2020, by Cynthia Gray.
The Wisconsin Supreme Court, In re the Paternity of B. J. M, 2020 WI 56 June 16, 2020, in a child custody case, affirmed the court of appeals reversal of the trial judge’s denial of a motion for reconsideration of his decision in the mother’s favor concluding “…that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation.” The facts involved the judge’s undisclosed social media connection with a litigant. The “…a circuit court judge accepted a Facebook ‘friend request’ from the mother in a custody dispute after a contested hearing, but before rendering a decision. In the course of their 25-day Facebook ‘friendship.’, the mother ‘liked’ 16 of the judge’s Facebook posts, ‘loved’ two of his posts commented two of his posts, and ‘shared’ and ‘liked’ several third-party posts related to an issue that was contested at the hearing. The judge never disclosed Facebook friendship and communications, and he ultimately ruled entirely in the mother’s favor. “Judicial ethics and discipline of the Center for Judicial Ethics of the National Center for State Courts, “An extra ‘remember me:’ Serious risk of Actual bias on Facebook, posted on 5/9/20 by Cynthia Gray.
PART 3-JUDICIAL SOCIAL NETWORKING
As cautioned above, judges should be extremely cautious participating in social networking sites and that participation does not otherwise result in violations of their respective Codes of Judicial Conduct See Social Media Pitfalls for Judges, PAST PRESIDENT’S CORNER, By: Judge Thomas E. Hornsby (Ret.), a publication of the National Council of Juvenile and Family Court Judges.
See also for some of the cases cited in The National Center for State Courts (NCSC) and authored by Cynthia Gray, Director of the Center for Judicial Ethics at NCSC:
- NCSC, JUDICIAL CONDUCT REPORTER, Facebook fails, Top Judicial Ethics Storied of 2018, Vol. 40, No. 4, Winter 2019, p. 16-22;
- NCSC, JUDICIAL CONDUCT REPORTER, Another Facebook fails, Vol. 40, No. 2019, Fall 2018, p.23-24;
- NCSC, JUDICIAL CONDUCT REPORTER, Social media and judicial ethics; Part1, Vol. 39, No.1, Spring 2017, p.2-23; and
- NCSC, JUDICIAL CONDUCT REPORTER, Facebook fails, Top judicial ethics and discipline stories in 2016, Vol. 38. No. 4, Winter 2017, p. 14-18.
- See also recent posts on the blog of the Center for Judicial Ethics, of the NCSC; https://ncscjudicialethicsblog.org/.
IMPROPRIETY AND BIAS: At issue in reprimanding a judge for violating Canons involving impropriety and prejudice or bias, in the Tennessee Board of Judicial Conduct, Lammey, November 15, 2019, imaged on the judge’s Facebook account. The Board found “…those images that you ‘shared’ on your Facebook account reflects among other things, a concern for the credibility of certain agencies, a strong position on professional athletes kneeling during the national anthem, the effect of illegal aliens on the economy, opposition to certain democrat platform principles, opposing support for then-presidential candidate Hillary Clinton, a position on black lives matter and the double standard of the news media, a position on the controversial issue of shooting deaths by police officers and the media bias, anti-jihadist sentiment, a position on the controversial issue of transgender bathrooms and boys in girl’s locker rooms, concern for illegal aliens voting in Virginia, and an expression of bias in favor of then-presidential candidate Donald Trump. New post on Judicial Ethics and Discipline, Recent Cases by Cynthia Gray, December 17, 2019.
LAW REVIEW ARTICLES-Be careful what you write: Judicial Council of the Seventh Judicial Circuit, Resolution of Judicial Misconduct Complaints about Judge Lynn Adelman June 22, 2020, Nos. 07-20-90044, 07-20-90045 and 07-20-90046. “In March 2020, United States District Judge Lynn Adelman published a law review article entitled The Roberts Court’s Assault on Democracy, 14 Harv. Law & Policy Rev. 131. The Judicial Council publicly admonished the judge for the first two sentences of the article which begins: “By now it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court Justice’s role is the passive one of a neutral baseball ‘umpire who [merely] calls the balls and strikes,’ was a masterpiece of disingenuous. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides.” The Judicial Council concludes that the public admonition to Judge Adelman “…reminds all judges within the circuit of our obligations to ensure that judges’ speaking and writing do not undermine public confidence in the fair administration of justice, “, and “At the same time, it behooves all federal judicial offices to speak and write about the law with the special care for their responsibilities to the public and to the larger judicial systems, including refraining from personal attacks.” p. 10. New post on Judicial Ethics and Discipline, Appropriate discourse of personal attack by Cynthia Gray, posted June 30, 2020.
“The Center for Judicial Ethics of the National Center for State Courts has compiled and posted on its website summaries of judicial ethics opinions about participating in marches, demonstrations, vigils, protests, rallies, and other issue-related community events, including the ones issued in 2020 and those about participating in demonstrations after the 2016 election. This document will be updated as additional opinions are issued. New post on Judicial Ethics and Discipline, July 28, 2020.
In preparing this article, the authors indebted to the articles and cases cited therein by Cynthia Gray, Director of the Center for Judicial Ethics of the National Center of State Courts. Hopefully, I have alerted judges to some of the pitfalls in engaging in political matters, ex parte communications, and some problems in using social media. Before posting on social media, questions should be asked as to whether the post would include comments that would violate and of their Codes of Judicial Conduct. Because of space limitations, I have eliminated any discussions of recent advisory opinions and decisions involving extra-judicial activities including service in charitable and not-for-profit entities and fundraising.