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Judge’s decision to ‘friend’ litigant prompts review of ethical use of social media

By: Michaela Paukner, [email protected]//October 30, 2019//

Judge’s decision to ‘friend’ litigant prompts review of ethical use of social media

By: Michaela Paukner, [email protected]//October 30, 2019//

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Judge Tammy Kemp hugs former Dallas police officer Amber Guyger
Judge Tammy Kemp hugs former Dallas police officer Amber Guyger after Guyger was sentenced to prison on Oct. 3.

In a courtroom video seen by millions of people around the world, Judge Tammy Kemp hugs former Dallas police officer Amber Guyger and hands her a bible. The white former officer had just been sentenced to 10 years in prison for murdering her black neighbor. Kemp’s hug prompted outrage on social media and a complaint from the Freedom From Religion Foundation. The foundation has asked the Texas State Commission on Judicial Conduct to investigate Kemp’s actions, saying they “overstepped judicial authority.”

With the rise of social media, dozens of states are grappling with how services like Facebook fit with the Code of Judicial Ethics.

A case now before the Wisconsin Supreme Court will give the justices a chance to adopt a new rule or clarify existing rules about judges’ use of social media. It marks the first time Wisconsin’s courts are discussing social media and whether or not such services provide an opening to judicial bias.

The appeal in Miller v. Carroll mainly concerns whether Baron County Judge J. M. Bitney’s decision to become Facebook “friends” with a litigant in a case before him should lead to judicial disqualification because of the appearance of impartiality and ex parte communications. When the case went up for appeal, the appellate judges overturned Bitney’s initial ruling in favor of the litigant.

“We caution that judges should recognize that online interactions, like real-world interactions, must be treated with a degree of care,” wrote appellate Judge Mark Seidl.

Daniel Blinka, professor at Marquette University Law School, said communication between judges and other parties has become much more complex in the age of social media.

“These problems have always been around,” said Daniel Blinka, professor at Marquette University Law School. “They were just easier to navigate.”

Blinka said avoiding ex parte communication was much easier in the 1990s and earlier, when judges and involved parties would usually only speak in person. A judge could respectfully decline to comment during chance in-person encounters, and in chambers, require an attorney to wait to have a conversation until other interested parties were present. Now, judges must consider how a decision to communicate, or not communicate, with someone online can be perceived.

“It’s not just being impartial,” said Blinka. “It’s avoiding the appearance of impartiality.”

Appearances Matter

Avoiding the appearance of impartiality isn’t as simple as deleting a Facebook friend request for someone involve in a case. Blinka said whoever is turned down might perceive the rejection itself as a sign of bias and that, in turn, could lead to troubles in the courtroom. On the other hand, if judges accept a request, they could unintentionally see information or opinions that could influence their ruling, even if they weren’t aware the requester was a litigant or attorney, Blinka said.

Dane County Circuit Court Judge Everett Mitchell said although he hasn’t encountered friend requests from litigants, he’s still mindful of what he’s posting, sharing and liking on social media.

“It’s difficult to define what’s appropriate and what’s not,” said Mitchell. “I treat it as any other contact.”

Wisconsin’s Judicial Code of Conduct forbids ex parte communications concerning a pending or impending action or proceeding — allowing exceptions only for scheduling, administrative matters or emergencies that don’t deal with substantive subjects, and instances when there is a reasonable belief that no party will gain an advantage from the communication. Under the code, judges are expected to notify all other parties of the communication and give them a chance to respond.

Other states have revised their own codes of conduct and issued advisory opinions about social media. The National Center for State Courts’ Center for Judicial Ethics cites the California Supreme Court code change in its September 2019 ethics update, stating, “A judge must exercise caution when engaging in any type of electronic communication, including communication by text or email, or when participating in online social networking sites or otherwise posting material on the Internet, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.”

In February 2013, the American Bar Association issued its own formal opinion about judges’ use of social media, saying “a judge’s social contacts, however made and in whatever context, including ESM (electronic social media), are governed by the requirement that judges must at all times act in a manner ‘that promotes public confidence in the independence, integrity, and impartiality of the judiciary,’ and must ‘avoid impropriety and the appearance of impropriety.’ This requires that the judge be sensitive to the appearance of relationships with others.”

Wisconsin’s Options

Even with the questions social media can present judges in the courtroom, both Blinka and Mitchell believe such services offer an important and powerful way of connecting with the public.

Mitchell said he used social media in his first campaign for a seat on the bench. He said he didn’t have the money to do expensive mailers and said his race could have gone much differently without social media.

“If we take away social media, we’re limited to people with money,” said Mitchell. “We greatly limit people and their voices.”

Blinka agrees.

“I don’t think the court wants to ban judges from social media,” said Blinka. “That would be unconstitutional, and I can’t imagine they’d do that.”

In the Miller v. Carroll appeal, Wisconsin’s high court will most likely give advice on how judges can best use social media and make a recommendation on whether new rules should be written. In the meantime, Wisconsin judges will have to use caution as they navigate the muddled ethics of online communication.

“We have to contend with the fact that social media is not going away,” said Mitchell. “We can use it as a way to convey ideas. We need to have access to people, and it allows us to still have contact with people. We are in communities and have a role to play but still need to be fair and impartial.”

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