New Mexico high court urges judges to be discreet on social media
Illustration by Steven P. Hughes
For most of its 37-page opinion in State v. Thomas, issued June 20, the New Mexico Supreme Court explained its finding that the convictions of Truett Thomas for murder and kidnapping violated the confrontation clause. The supreme court reversed the convictions and remanded the case for a new trial only on the murder charge because there was insufficient evidence to support the kidnapping conviction.
It wasn’t until page 31 of the opinion that the justices turned to an issue that might have been a more important factor in the case, if not for the confrontation clause violation.
During the trial, Judge Samuel L. Winder of the District Court of Bernalillo County, which encompasses Albuquerque, posted the following statement on a Facebook page created for his unsuccessful re-election campaign: “I am on the third day of presiding over my ‘first’ first-degree murder trial as a judge.” While this was a seemingly innocuous post, Winder later posted the following message after trial but before sentencing: “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.”
On appeal, “defendant argues that social media postings by the district court judge demonstrate judicial bias,” wrote Chief Justice Charles W. Daniels in his opinion for a unanimous court (with one abstention). “During the pendency of the trial, the district court judge posted to his election campaign Facebook page discussions of his role in the case and his opinion of its outcome. Although we need not decide this issue because we reverse on confrontation grounds, we take this opportunity to discuss our concerns over the use of social media by members of our judiciary.”
Judges “should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens,” stated Daniels, citing Rule 21-102 of the New Mexico Code of Judicial Conduct. “Judges must avoid not only actual impropriety but also its appearance, and judges must ‘act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary.’ These limitations apply with equal force to virtual actions and online comments and must be kept in mind if and when a judge decides to participate in electronic social media.”
A NOTE OF CAUTION
Daniels emphasized that the court was sounding a note of caution to judges. “While we make no bright-line ban prohibiting judicial use of social media,” the opinion states, “we caution that ‘friending,’ online postings and other activity can easily be misconstrued and create an appearance of impropriety. Online comments are public comments, and a connection via an online social network is a visible relationship, regardless of the strength of the personal connection.”
The New Mexico Supreme Court’s opinion echoes the view expressed by the ABA Standing Committee on Ethics and Professional Responsibility in Formal Ethics Opinion 462, issued Feb. 21, 2013. “A judge may participate in electronic social networking,” states the committee in Opinion 462, “but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity or impartiality, or create an appearance of impropriety.”
The court also offered a few thoughts on how social media created to support judicial election campaigns should be used. “We recognize the utility of an online presence in judicial election campaigns, but we agree with the American Bar Association in recommending that these campaign sites be established and maintained by campaign committees, not by the judicial candidate personally,” states the court’s opinion. Moreover, the opinion states, judges should consider “any statement posted online to be a public statement and take care to limit such actions accordingly.”
Ethics expert Peter A. Joy says it is significant that the New Mexico Supreme Court said as much as it did about the trial judge’s use of social media since the case already was decided on other grounds. “The portion of the decision dealing with the judge’s social media activities goes far beyond what the judge did, and that is unusual,” says Joy, a professor at Washington University School of Law in St. Louis. “Usually, a court does not go beyond the facts in the case it is deciding. In this case, it goes far beyond the allegations about this judge’s use of social media, and the court basically uses its discussion, which is just dicta in the case, to give a mini-ethics lesson about judges using social media.”
Only part of Winder’s Facebook posting was problematic, says John G. Browning, a shareholder at Passman & Jones in Dallas, whose article “Why Can’t We Be Friends? Judges’ Use of Social Media” was published in the University of Miami Law Review in 2014. “As far as what the judge posted is concerned, he was fine when he limited himself to making just a factual comment, as with his post on the third day of trial or the first sentence of his follow-up post,” Browning says. “It’s the second part of his post, the comment about ‘justice being served,’ that is troubling. That could indicate to a reasonable person some partiality or bias on the part of the court. This is particularly concerning when that same judge may have to preside over post-trial motions.”
Keith Swisher, an ethics counsel in Phoenix, takes issue with the New Mexico Supreme Court’s conclusion that judicial campaign sites be established and maintained by campaign committees, rather than the candidate. “To be sure, that is good advice and will help the judge avoid disqualification and other ethical risks, but it is hard to read the current ethical codes as requiring that approach which might, in any event, collide with the First Amendment,” says Swisher. “Although judicial candidates are generally not permitted to solicit campaign contributions personally—or even to link to a site soliciting campaign contributions—it is a bit of a stretch to suggest that candidates cannot otherwise maintain their own pages to promote their candidacy.”
TECHNICAL DIFFICULTIES
How judges use social media is cause for concern, agree many ethics authorities. “In recent months, judges have been disciplined for misusing social media,” Browning says. For example, an ex-judge in Mississippi was improperly endorsing political candidates on Facebook; a Minnesota judge frequently went on Facebook to comment on the cases, counsel and litigants appearing before him; and a Kentucky judge vented on Facebook about what he perceived to be racial injustice occurring in his court, Browning says.
What is surprising, Joy says, “is that not all judges have gotten the message yet: Using social media is just like talking to the press. It seems that some judges, just like some regular citizens, hang up whatever good sense they have when they use social media.”
The problem is partly one of a lack of technological know-how, says Browning. “Unfortunately, many judges are not as knowledgeable or comfortable with technology as we’d like them to be, which can lead to mistakes,” he says. “And more judges need to be aware that their conduct on social media is just as subject to canons of judicial ethics and the Code of Judicial Conduct as their more traditional activities and forms of communication.”
Another factor is the pressure of judicial election campaigns, Swisher says. “The judges feel a need to campaign to the public and occasionally post about their cases or seek to connect with parties or lawyers. Judges have been disciplined or disqualified for their Facebook friends, their Facebook posts, or their ex parte communications with parties or lawyers over social media.”
Swisher says that the states, with a few exceptions, are fairly consistent in their approach to social media. “The approach has moved to acceptance, with warnings and limitations,” he says. “Unlike other social media users, judges are properly subject to unique restrictions and disqualification issues relating to the content of their postings and their online connections. These restrictions are justified, in part, to assure parties of judges’ impartiality—both in actuality and in appearance.”
As for Winder, he now practices law in Albuquerque after losing his bid for re-election. After the supreme court issued its opinion, Winder told the Santa Fe Reporter that judges perhaps should consider staying away from social media. “No one questioned my impartiality during the trial or after. We’ve all learned from this new medium, and judges should never make any comments on Facebook.”
This article originally appeared in the September 2016 issue of the ABA Journal with this headline: “Don’t Get Too Friendly: New Mexico Supreme Court urges judges to be discreet when using social media.”
