SUNDAY EDITION | Judges and Facebook: It's complicated
Jefferson Circuit Court Judge Olu Stevens' Facebook posts have caused controversy and raised questions about judges and social media.
LOUISVILLE, Ky. (WDRB) – It has become a national story that will continue this week when Kentucky Chief Justice John Minton decides whether to remove Judge Olu Stevens from criminal cases because of alleged biased comments he made about top prosecutor Tom Wine on Facebook.
But some in the legal community also are following a related issue:
Will Stevens be disciplined for his Facebook comments?
While Kentucky legal rules don’t prohibit judges from using Facebook or other social media, what they are allowed to say – or even “like” – remains a grey area.
“It depends what they ‘like,’” said Steve Wolnitzek, chairman of the Judicial Conduct Commission, the Kentucky Supreme Court’s enforcement arm, which can remove judges from the bench.
The Stevens case has once again brought to light the tangled intersection of judicial ethics and social media and shown that instead of clarifying the issue, recent rulings have left questions unanswered.
The issue was addressed in Kentucky in 2010, when the state Judicial Ethics Committee was asked if it was okay for judges to participate in social media and become “friends” with people who appear before them.
The committee admittedly struggled with the question, but eventually issued a “Qualified Yes” opinion.
“A judge should not become isolated from the community in which the judge lives,” according to the ethics opinion, which at the same time warned judges they should be “extremely cautious.”
Kentucky judges can “friend” attorneys, social workers and law enforcement officials, among others, but they can’t act impartially, “demean the judicial office” or interfere with the “proper performance of judicial duties.”
“Social networking sites are fraught with peril for judges,” and the ethics opinion should not “be construed as an explicit or implicit statement that judges may participate in such sites in the same manner as members of the general public,” according to the opinion.
The opinion left some ambiguity on how exactly judges could interact on social media.
And some recent rulings by the Kentucky Judicial Conduct Commission, which has the authority to punish judges, only added to the confusion.
Last December, the commission reprimanded a judge for “liking” the Facebook pages of lawyers and a candidate for judicial office – a move likened to a public endorsement.
The judge, who was not named in the “private” reprimand, had also posted “offensive comments” about an attorney who practiced in front of the judge, according to the ruling.
By "liking" attorneys' pages, the judge violated the Kentucky Code of Judicial Conduct prohibition against “conveying the impression that others are in a special position to influence the judge,” the order said.
And the judge writing negatively about an attorney “cast reasonable doubt on the judge's capacity to act impartially,” according to the reprimand.
The commission also wrote that “all judges must be sensitive that when they participate on social media, they violate the Code of Judicial Conduct if their actions are inappropriate for judges.”
Among other things, the Kentucky Code of Judicial Conduct prohibits judges from making any public comment on an issue while it is pending.
Attorney Peter Ostermiller, who defends lawyers in bar disciplinary cases, said there is a “disconnect” between the 2010 ethics opinion and the judicial conduct commission rulings.
(In April, a judge received a private reprimand for liking the Facebook pages of lawyers, law firms and candidates for office.)
“The judicial conduct commission takes a much starker view of social media than the ethics committee it seems,” Ostermiller said.
In March, the Louisville Bar Association posted an article by William Sharp, the legal director of the ALCU of Kentucky, and Paul Salamanca, a University of Kentucky Law Professor, which took issue with the judicial conduct commission ruling.
The authors found the ruling at odds with the ethics opinion, arguing that the decision to “like” a Facebook page “does not reasonably create an impression that the attorney in in a special position to influence the judge.”
The article also argued that the punishment disregarded the judges’ free speech rights under the First Amendment.
“Our position is that judges don’t give up First Amendment rights to speak by taking office,” Sharp said in an interview, though he also pointed out that judges have limits on what they can publicly say that regular citizens don’t have.
Ostermiller said he hates to take the position that attorneys and judges should stay off social media because he understands they “have a responsibility to educate the public about legal issues.
“And, there are First Amendment implications to any type of … efforts to regulate that dissemination by a government entity.”
"A growing area"
Social media rules for lawyers and judges differ widely by state.
In Florida, for example, the state’s Judicial Ethics Advisory Committee has ruled that judges cannot be Facebook friends with a lawyer who may appear before them, because it could give a perception that the attorney is in a special position to influence the judge.
In South Carolina, judges can be Facebook friends with law enforcement officers as long as they don’t discuss anything related to the judge’s position.
Just this past week in Minnesota, a judge was reprimanded for posting about some of his cases on Facebook. The judge mistakenly thought his Facebook account was private.
“It’s a growing area,” said Wolnitzek, adding that the Kentucky Judicial Conduct Commission hadn’t had any social media complaints about judges until 2012. He could not say how many complaints or investigations there have been since then, but he said three or four judges have been disciplined over Facebook issues.
The American Bar Association earlier this year urged judges to be cautious on social media, to think twice before following someone or liking a post.
A 2014 survey report by the Conference of Court Public Information Officers showed the use of social media by judges was continuing to rise, though most were very cautious in what they wrote.
Chief Jefferson Circuit Court Judge McKay Chauvin said most local circuit judges do have Facebook pages but don’t post much outside of greetings and wishing people happy birthdays.
“Judges are obliged to avoid saying or doing anything off the bench that might cause someone to doubt the impartiality of what we are saying or doing on the bench,” Chauvin said in an email.
Longtime Jefferson Circuit Court Judge James Shake said he could be characterized as a Facebook “stalker,” looking but rarely commenting.
“You have to be careful if you post something on social media,” he said. “I wouldn’t want something to be construed as me favoring an attorney that came before me.”
"Just Don't do it"
Stevens has long had an active presence on Facebook, but his most recent postings have caused a firestorm.
The postings came after a WDRB story last month reporting that Wine had asked the state Supreme Court to determine whether the judge was abusing his power by dismissing a jury because he felt it lacked enough black people.
He wrote that Wine went to the Kentucky Supreme Court to “protect the right to impanel all-white juries” and that “is not what we need to be in 2015. Do not sit silently. Stand up. Speak up.”
On Nov. 12, Stevens wrote, “History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming his entitlement to an all-white jury panel. No matter the outcome, (Wine) will live in infamy.”
Stevens also posted an “open letter” to defense attorneys asking why they were staying silent on the issue.
And Stevens has asked the public to put pressure on Wine over his decision to go to the Supreme Court, requesting local activists and officials to come to court and support.
The Jefferson Commonwealth’s Attorney’s office has asked Minton to remove Stevens from all his criminal cases, saying his Facebook posts show he can’t be impartial and could bias potential jurors.
Wolnitzek, chairman of the Judicial Conduct Commission, said the commission does not comment on whether they are investigating a judge or not.
But the commission has almost certainly been made aware of Stevens’ Facebook posts, several attorneys told WDRB.
In 2009, the Kentucky Supreme Court made it mandatory for lawyers to report the misconduct of other attorneys and judges in what is known as the “squeal rule.”
And the commission can act on its own from any media they have seen.
Wine, who has copies of all of Stevens’ posts, would not say if he reported the judge to the judicial conduct commission, saying the process is secret.
Stevens did not return an email seeking comment on his Facebook posts. A secretary in his office said he doesn’t do interviews.
Ostermiller, who speaks at legal ethics seminars several times each year, said he always has the same advice about posting on social media.
“Just don’t do it,” Ostermiller said. “I tell (attorneys and judges) any time you mix personal and professional together, it’s dangerous.”
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