By James J. Alfini
The debate over whether and how far we can or should inquire into and regulate a judge’s private life and public life takes on a whole new dimension with the advent of computer technology and the Internet. Social networking sites in particular have tended to blur the boundaries between judges’ private and public lives and have raised challenging new ethics issues.
One of the most notorious inquiries into extrajudicial conduct and the Internet involved Chief Judge Alex Kozinski, of the U.S. Court of Appeals for the Ninth Circuit. In June of 2008, the media began a feeding frenzy claiming that Judge Kozinski had posted sexually explicit material on his Web site.1 At the time, the judge was sitting by designation as a trial judge to try an obscenity case. He suspended the trial to consider whether there was a need for his recusal, ultimately declaring a mistrial and recusing himself.2 He then asked the Judicial Council of the Ninth Circuit to initiate proceedings with regard to the allegations against him. The Ninth Circuit Council asked Chief Justice Roberts to transfer the matter to another circuit, and it was subsequently transferred to the Third Circuit.
The primary assertion in the media was that Judge Kozinski maintained a publicly accessible Web site that contained sexual material. The judge cooperated fully in the investigation, and he testified under oath at a hearing before a special committee in Philadelphia. The committee found that while the judge did not maintain a public Web site as suggested by the media, he did maintain a large aggregation of e-mails he had received over the years on a “subdirectory” on his home computer, which had been connected to the Internet using Web server software,
The committee further found that these files, or e-mails, became accessible to the public “[t]hrough a combination of improper security and carelessness on the part of the judge.” At least one Internet search engine catalogued the contents of the subdirectory, allowing Internet searchers to locate the material. Judge Kozinski became aware of this, but he neglected to fully remove the offensive material or disconnect the computer from the Internet.
The Third Circuit Council found, “that the Judge’s possession of sexually explicit material combined with his carelessness in failing to safeguard his sphere of privacy was judicially imprudent. Moreover, once the judge became aware in 2007 that offensive material could be accessed by members of the public, his inattention to the need for prompt corrective action amounted to a disregard of a serious risk of public embarrassment.” The Third Circuit Council admonished the judge “that his conduct exhibiting poor judgment with respect to this material created a public controversy that can reasonably be seen as having resulted in embarrassment to the institution of the federal judiciary.” Judicial misconduct issues relating to the Internet, particularly in connection to social networking, have arisen within the state judiciaries as well. The explosion of interest in social networking has precipitated, judicial ethics advisory opinions in New York and Florida.
The New York opinion3 was initiated by a New York judge who had received an e-mail inviting her to join a social network. The judge asked whether it would be appropriate to join and participate. In concluding that a judge may join and make use of an Internet-based social network, the opinion first discusses the legitimate reasons for social networking, identifying reconnecting with old classmates and friends, staying in touch with distant family members and colleagues, and monitoring the use of the network by the judge’s minor children. The committee then looked at earlier opinions it had issued such as an opinion that said it was proper for a judge to provide links to newspaper articles on the judge’s Web site as long as they were dignified, truthful, and not misleading.4 The committee warned that a judge should consider whether any of the online connections rise to a level of a close personal relationship requiring disclosure or recusal. The committee also cautioned judges to employ [an] appropriate level of prudence, discretion, and decorum in using this technology, and to stay abreast of new features to the extent that they may present additional ethics issues requiring further guidance.5
In reaching its conclusion that a judge may participate in a social network, the New York committee stressed that a judge may do so if “the judge otherwise complies with the Rules Governing Judicial Conduct.” In this regard, the committee cited the requirements from the New York version of the Code of Judicial Conduct that a judge avoid impropriety and the appearance of impropriety in all the judge’s activities, act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, and conduct all of the judge’s extrajudicial activities so that they do not detract from the dignity of judicial office.
The Florida Ethics Opinion6 posed a number of questions. First, it addressed the question: “May a judge post material on the judge’s social networking page if the publication of these materials does not otherwise violate the Code of Judicial Conduct?” Similar to the New York Opinion, the committee answered, “Yes.” The committee then addressed the question: “May a judge add lawyers as “friends” and permit the lawyers to add the judge as their “friend”?” Somewhat surprisingly, to this question the committee answered, “No.” The Florida committee concluded that this practice would violate the Canon 2B prohibition in the Florida Code of Judicial Conduct against lending “the prestige of judicial office to advance the private interests of the judge or others.” The committee explained that listing lawyers who may appear before the judge as “friends” on a networking page would convey to others the impression that these lawyer “friends” are in a special position to influence the judge.
The Florida committee’s opinion that a judge’s “friending” lawyers on a social networking site is improper has been criticized in the press7 and by a minority of the committee. In its opinion, the committee explained that a minority believed that social networking sites have become so ubiquitous that the term “friend” on these pages merely identifies a person as a contact or acquaintance and not a “friend” in the traditional sense, and would therefore not violate Canon 2B.
A judicial ethics advisory committee in South Carolina also addressed a question concerning the propriety of a judge’s participation in a social networking site. The inquiry from the South Carolina magistrate judge expressed concern over having local law enforcement officers and employees of the magistrate as “friends” of the magistrate on Facebook. The committee concluded that the judge may be a Facebook member and be friends with law enforcement officers and employees of the magistrate “as long as they do not discuss anything related to the judge’s position as magistrate.”8 In reaching this conclusion, the committee quoted from the commentary to Canon 4 of the South Carolina Code of Judicial Conduct: “…complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.” The committee went on to explain: “Allowing a magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge.”
As one might expect, the Internet and social networking pages have been seen as tools to assist political communication9 and to enhance the election campaigns of judges in elective states. Since the Supreme Court of the United States decision in Republican Party of Minnesota v. White,10 campaign practices have been the subject of both increased scrutiny and experimentation. The Florida ethics opinion discussed earlier also addressed the question: “May a campaign committee post material on the judge’s site if the material does not violate the Code of Judicial Conduct?” The committee concluded that a campaign committee may post such material on the judge’s site.
The ethics advisory committee also addressed the question: “May a campaign committee establish a page that has an option for persons to list themselves as “fans” or supporters of the judge’s candidacy so long as access is not controlled by the judge or the committee?” Again, the committee concluded that it may. The committee stated that it was not inconsistent to prohibit judges from having “friends”, while permitting “fans”, reasoning that because neither the judge nor the campaign committee can accept or reject the listing of the fan on the social network, the listing of the lawyer’s name does not convey the impression that the lawyer is in a special position to influence the judge.
Judicial candidates in two states have been disciplined for seeking campaign contributions through the Internet. In the State of Washington, the judge’s campaign committee solicited donations by e-mail over the judge’s signature.11 The e-mails were written in the first person and concluded with the judge’s first name in the typed signature line. And, in the state of Kansas, a judicial candidate sent a cell phone text seeking donations from attorneys.12 The cell phone text stated: “If you are truly my friend then you would cut a check to the campaign! If you do not then its time I checked you. Either you are with me or against me!”
Judges have also been sanctioned for misusing social networking sites in ways that compromise the integrity of their judicial positions. For example, a temporary judge in North Las Vegas was actually removed from office for a post on his MySpace page that was reportedly hostile to prosecutors and used graphic language.13 The temporary judge explained that in retrospect he would not have opted to post the controversial comment, but he did so to “provoke discussion.”
A trial judge in North Carolina was reprimanded for misusing the Internet in connection with a pending case.14 Following a discussion of Facebook in the judge’s chambers during a child custody and support case, Judge B. Carlton Terry, Jr. and Charles A. Schieck, attorney for the defendant in the proceeding, “friended” each other. Schieck then posted messages discussing various aspects of the case, and Judge Terry responded to these posts. The judge then used the Internet to gather information related to the case, including “Googling” the photography business run by the plaintiff and finding poems written by the plaintiff. At the end of the proceeding, the judge disclosed these activities. Jessie Conley, attorney for the plaintiff, requested that the judge vacate his order and disqualify himself. Judge Terry subsequently disqualified himself, vacated his child custody and support order, and ordered a new trial.
In issuing a public reprimand against Judge Terry, the North Carolina Judicial Standards Commission concluded that the judge had violated numerous provisions of the North Carolina Code of Judicial Conduct. They found that the judge failed to “observe appropriate standards of conduct to ensure that the integrity and independence of the judiciary shall be preserved (Canon 1),” failed “to respect and comply with the law (Canon 2A),” and failed “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (Canon 2A).” The Commission also found that the judge violated Canon 3A(4) by “engaging in ex parte communication with counsel and conducting independent ex parte online research about a party presently before the court.”
As we have seen, these developments raise numerous judicial ethics issues. The variety and complexity of these issues will require judicial disciplinary authorities to think outside the box for many years to come. Cyberspace has indeed opened a brave new world in the field of judicial ethics.
James J. Alfini is Dean Emeritus and Professor, South Texas College of Law. This article was adapted from a portion of an article (with Seana Willing) that will appear in a symposium issue of the South Texas Law Review on the future of the courts. He is a Master in the Garland R. Walker AIC in Houston, TX.
© 2010 James J. Alfini. This article was published in the November/December 2010 issue of The Bencher, the flagship magazine of the American Inns of Court. Inquiries about this article should be directed to the American Inns of Court.
1 See “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website,” Los Angeles Times Web site, June 11, 2008.
2 Judge Kozinski’s conduct with regard to the obscenity case, United States v. Issacs, is discussed fully in In re Complaint of Judicial Misconduct (Kozinski), Memorandum Opinion, Judicial Council of the Third Circuit, J.C. No. 03-08-90050 (June 5, 2009) at 36–38. The Third Circuit Council concluded: “To the extent the identified Complaint involves the Judge’s conduct with respect to the United States v. Issacs case, that portion of the Complaint will be dismissed under Rule 20(b)(1)(A)(i).” Id. at 38.
3 N. Y. Advisory Comm. on Judicial Ethics, Op. 08-176 (Jan. 29, 2009).
4 N. Y. Advisory Comm. on Judicial Ethics, Op. 07-135. But see, N. Y. Advisory Comm. on Judicial Ethics, Op. 01-14 (a court should not provide a link on its web page to an advocacy group for Megan’s Law which listed the names and counties of residence for registered sex offenders).
5 N. Y. Advisory Comm. on Judicial Ethics, Op. 08-176 (Jan. 29, 2009) at 2.
6 Florida Supreme Court Judicial Ethics Advisory Committee, Op. 2009-20 (Nov. 17, 2009).
7 See, e.g. “For Judges on Facebook, Friendship Has Limits”, The New York Times Web site, December 10, 2009, http://www.nytimes.com/2009/12/11/us/11judges.html
8 South Carolina Advisory Committee on Standards of Judicial Conduct, Op. 17-2009 (October, 2009).
9 Judges have been sanctioned for the improper use of these technological advances. A Texas judge, for example, was admonished for forwarding an e-mail from a county computer about George Bush’s 2000 presidential campaign. Public Admonition of Katz (Texas Commission on Judicial Conduct December 19, 2000).
10 536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed. 2d 694 (2002)(declaring a campaign speech restriction of the Minnesota Code of Judicial Conduct unconstitutional on First Amendment grounds). For a discussion of this case and its broader relevance to the field of judicial ethics see James J. Alfini, Steven Lubet, Jeffrey Shaman, and Charles Gardner Geyh, Judicial Conduct and Ethics (2007) 11-17–11-27.
11 In re Krouse, Stipulation, Agreement, and Order of Reprimand (Washington Commission on Judicial Conduct May 5, 2005).
12 Inquiry Concerning Davis, Order (Kansas Commission on Judicial Qualifications July 18, 2008).
13 American Bar Association Journal, August 14, 2007.
14 In re Terry, Inquiry No. 08-234 (North Carolina Judicial Standards Commission April 1, 2009).