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Opinion

Opinion CJE Opinion No. 2021-01

Date: 03/18/2021
Organization: Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Table of Contents

Duty to Report Perceived Judicial Misconduct

You have sought guidance from the Committee on Judicial Ethics (CJE) regarding what actions you must take upon observing that a sitting Massachusetts judge's Facebook activity appears to violate the Massachusetts Code of Judicial Conduct (Code).  For the reasons explained below, we advise that you are required to report the observed conduct in accordance with Rule 2.15(A).

1.  Background.[1]  Around the time of the 2020 presidential election, while engaging with your personal Facebook profile and various suggested links and prompts that it generated, you viewed the personal Facebook profile of a person you recognized as a sitting Massachusetts judge.  You are not Facebook “friends” with this judge, but were able to view the judge's profile, an indication that it is publicly accessible.  You observed that this profile identified the judge by name and included a photograph of the judge but did not refer to the judge's judicial status.  You described the judge's Facebook profile as containing posts regarding the 2020 presidential election, posts regarding media coverage and bias, links to articles about politics, internet memes regarding politics, expressions of political opinions, and exchanges about politics with those who commented on the judge's Facebook profile or posts.

Having observed what you believed to be a violation of the Code, you contacted the Chair of the CJE, who preliminarily advised that you should report your observations to the Chief Justice of the court on which the judge sits.  You have informed us that you followed this advice and supplied that Chief Justice with screenshots of some of the posts and messages.  You subsequently contacted the CJE, inquiring whether the Code obligates you to take any additional action in response to the judge's Facebook profile.  At the CJE's request, you supplied the screenshots for the CJE to review.

The screenshots show a number of posts and messages on the judge’s Facebook profile between September 9, 2020, and November 14, 2020.  They include:

  • Expressions of support for one of the major party candidates for president;
  • References and links to negative coverage of the opposing major party's candidate;
  • Statements that the opposing party's candidate and his family are “corrupt”;
  • Posts ridiculing and demeaning two female politicians of the opposing party;
  • Derogatory comments about immigrant parents who were separated from their children at the southern border;
  • Complaints about media bias in election reporting; and
  • Ten days after the election, a statement that the election was a “mess” along with a link to commentary by a media personality claiming that the election was fundamentally unfair, compromised by alleged voting irregularities, and manipulated for the political benefit of the opposing party.

2.  Discussion.  As we have explained on several occasions, while judges in Massachusetts are not prohibited from using social media, a judge who uses social media must proceed with caution to avoid running afoul of the judge’s obligations under the Code.  See CJE Opinion No. 2016-01, modified by CJE Opinion No. 2018-03 (Facebook); CJE Opinion No. 2016-08 (LinkedIn); CJE Opinion No. 2016-09 (Twitter).  These obligations include “the obligations to uphold and promote the independence, integrity, and impartiality of the judiciary; promote public confidence in the judiciary; avoid both impropriety and the appearance of impropriety in one's professional and personal life; maintain the dignity of judicial office; avoid abuse of the prestige of the judicial office; refrain from political activity; and conduct all personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.” CJE Opinion No. 2016-09.  When engaging with social media, a judge remains bound by these obligations whether or not the judge's judicial status is disclosed.  As we have stated previously, “[i]t is reasonable to assume that a judge's Facebook friends will be aware of the judge's judicial office, and the Code governs a judge's personal as well as professional life.”  CJE Opinion No. 2016-01.  Additionally, each judge who uses social media must “be aware that posts a judge-user considers neutral may nonetheless lead a reasonable person to question the judge’s impartiality.” CJE Opinion No. 2016-09.       

In this instance, you were concerned that the judge's use of Facebook was inconsistent with the dictates of the Code. The question before us is what the Code requires you to do in response to your observations.  

“Taking action to address known misconduct is part of a judge's duties.” Rule 2.15, Comment [1]. “Ignoring or denying known misconduct among one's judicial colleagues . . . undermines a judge's responsibility to participate in efforts to ensure public respect for the justice system.”  Id. The actions a judge must take in response vary with both the degree of the judge's knowledge of the misconduct and the nature of the misconduct. 

Rule 2.15(A) addresses circumstances in which a judge has “knowledge[2] that another judge has committed a violation of [the] Code that raises a substantial question regarding the judge's honesty, integrity, trustworthiness, or fitness as a judge in other respects . . . .”  In such circumstances, the observing judge must “inform the Chief Justice of the Supreme Judicial Court, the Chief Justice of the court on which the [other] judge sits, and if the [other] judge is a Trial Court judge, the Chief Justice of the Trial Court” of the misconduct.  Rule 2.15(A).  Mandatory reporting pursuant to Rule 2.15(A) is reserved for “those offenses that an independent judiciary must vigorously endeavor to prevent.”  Rule 2.15, Comment [1]. 

Rule 2.15(C) addresses circumstances in which a judge has “knowledge of or receiv[ed] credible information indicating a substantial likelihood that another judge has otherwise violated [the] Code . . . .” Reasonably understood, Rule 2.15(C) is also triggered when a judge has actual knowledge that another judge has violated the Code, but that violation does not raise a substantial question regarding the judge's honesty, integrity, trustworthiness, or fitness as a judge in other respects.  In such circumstances, the observing judge must “take appropriate action.”  Rule 2.15(C).  “Appropriate action” may include but is not limited to “communicating directly with the [other] judge, reporting to the first justice or regional administrative justice of the court where the violation occurred or where that judge often sits, reporting to the Chief Justice of that judge's court, and/or calling the judicial hotline maintained by Lawyers Concerned for Lawyers.”  Rule 2.15, Comment [2].

Without having seen the screenshots, we preliminarily advised you to “take appropriate action” pursuant to Rule 2.15(C) by reporting the matter to the Chief Justice of the judge's court; however, having now seen the screenshots, we conclude that the matter should be reported pursuant to Rule 2.15(A).   

The application of Rule 2.15(A) turns on three inquiries: (1) whether you have actual knowledge of the conduct in question or such knowledge may be inferred from circumstances; (2) whether the conduct in question constitutes a violation of the Code; and (3) whether such violation raises a substantial question regarding the judge's honesty, integrity, trustworthiness, or fitness as a judge.  On the facts presented, we answer each of these inquiries in the affirmative.

First, you have the requisite knowledge for the purposes of Rule 2.15(A) that the judge engaged in the conduct in question.  The Facebook profile identified the judge by name and included a profile photograph of a person whom you recognized as the judge.  The conduct in question includes numerous posts and communications that were personal in tone and demonstrated familiarity between the owner of the Facebook profile and others who commented on the posts.  From the substance of the Facebook profile, we conclude that you possess the requisite knowledge under Rule 2.15(A) that it was the judge who posted the materials in question to the Facebook profile or, if the materials were posted by someone other than the judge, that the judge permitted the materials to remain on the judge's Facebook profile. 

Second, the content on the judge's Facebook profile violates several provisions of the Code that require judges to avoid conduct in their personal and professional lives that creates an appearance of bias.  See, e.g., Rule 1.2 (promoting confidence in the judiciary), Rule 2.4 (external influences on judicial conduct), Rule 3.1 (extrajudicial activities in general), Rule 4.1 (political and campaign activities).  In particular, Rule 4.1 imposes restrictions on a judge's political activity and prohibits a judge from “engaging in any display in support of or opposition to a political candidate” or organization.  Rule 4.1(A); Rule 4.1, Comments [1] & [2].  See also CJE Opinion No. 2016-10 (judge’s participation in Women’s March on Washington prohibited due to unmistakable political overtones, timing of event, and organizers’ desire to “send a message” to newly inaugurated president).

Third, the violations raise a substantial question regarding the judge's fitness as a judge because, by publicly posting and/or tolerating the presence of the materials in question, the judge failed to act in a manner that upholds the public's confidence in the impartiality of the judiciary and maintains the dignity of judicial office.  Independence, fairness, and impartiality are cornerstones of and indispensable to our system of justice.  Code, Preamble, Comments [1] & [2].  In order to preserve these principles, the Code places restrictions upon judges that may be viewed as burdensome if applied to other citizens.  Rule 1.2, Comment [2]; see also CJE Opinion No. 2016-09.  In both their professional and personal lives, judges are bound to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary . . . .”  Rule 1.2; see also Rule 2.4(B) & (C) (a judge “shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment,” and “shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge”); Rule 3.1, Comment [2] (“when engaging in any extrajudicial activity, a judge must consider the obligations of judicial office and avoid activities that are reasonably likely to interfere with those obligations”); Rule 4.1, Comment [1] (“public confidence in the judiciary is eroded if judges are perceived to be subject to political influence or give the impression of favoring the interests of a political organization or candidate”).  A judge violates this obligation by engaging in “discriminatory actions and expressions of bias or prejudice . . . , even outside the judge's official or judicial actions, [as these] are likely to appear to a reasonable person to call into question the judge's independence, integrity, or impartiality.”  Rule 3.1, Comment [3].  The Code provides several examples of offending conduct, including jokes or other remarks that demean individuals based upon characteristics such as their race, color, sex, gender identity or expression, ethnicity, citizenship or immigration status, or political affiliation.  Id.  A judge also violates this obligation by engaging in any public display of support of or opposition to a political candidate.  Rule 4.1, Comment [2].  And as we have previously advised, when a judge engages with social media, “[a judge] must avoid posts that individually or as a pattern would lead a reasonable person to conclude [the judge has] a predisposition or bias that calls [the judge’s] impartiality into question.”  CJE Opinion No. 2016-09

The Facebook posts at issue here expressed favor for a specific political candidate and for specific political viewpoints; denigrated and demeaned opposing political figures and viewpoints; contained content that gave the appearance of bias based on gender, ethnicity, and immigration status; and promoted a claim that the election had been manipulated for the political benefit of the opposing party.  The judge's conduct in posting such materials, regardless of the particular political viewpoints expressed, calls into question the judge’s impartiality and “undermines public confidence in the judiciary,” Rule 1.2, Comment [3], and therefore raises a substantial question regarding the judge's fitness as a judge.

3. Conclusion. You have the requisite knowledge that a sitting Massachusetts judge has acted in a manner that is inconsistent with the requirements of the Code of Judicial Conduct and that raises a substantial question regarding the judge's impartiality and, hence, the judge's fitness as a judge.  Therefore, we advise that you should report the judge's conduct in accordance with Rule 2.15(A).  As you have already contacted the Chief Justice of the judge's court in accordance with our preliminary advice, we now conclude that you have a duty to make an additional report to the Chief Justice of the Supreme Judicial Court and, if the judge is a Trial Court judge, the Chief Justice of the Trial Court.   

[1] This opinion relies on facts and materials you have provided to the Committee on Judicial Ethics.  We have not undertaken an independent investigation of this information.  If material facts have been omitted or misrepresented, this opinion is without force and effect.

[2] “Knowledge” is a defined term that means “actual knowledge of the fact in question.”  Code, Terminology Section.  “A person's knowledge may be inferred from circumstances.”  Id. 

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