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District judge challenged over Facebook postings

FOR THE RECORD: This story incorrectly reported that comments about a horse slaughter case had been removed from the campaign Facebook page of the judge hearing the case. As the story accurately reported, the comments were not made by the judge or his re-election staff, but by people interested in the case.

Copyright © 2014 Albuquerque Journal

Can a New Mexico judge presiding over a controversial case have a Facebook page in which members of the public weigh in with comments on the litigation? Are the comments harmless or are they the equivalent of an ex parte communication for which the judge should remove himself for the sake of appearance?

We could be on the verge of finding out.

Judge Matthew Wilson

WILSON: Was asked to recuse himself

When newly appointed District Judge Matthew Wilson of Santa Fe was criticized last month for content on his campaign Facebook page – not for anything he had written, but for comments left by others – it called attention to the sometimes uneasy mix of social media and the judiciary.

Because of the posted comments, the judge was asked to recuse himself and to void his rulings in the controversial horse slaughterhouse case even before he had granted the government-requested injunction to stop the Roswell-area plant from opening.

The judge asked for briefing on the issue, which is due next month, and said he would consider a hearing on recusal.

In New Mexico, as in the rest of the country, judges’ engagement in social media, be it Twitter, Facebook, LinkedIn or other, is getting more attention.

Courts appear to be relying on opinions interpreting the existing Code of Judicial Conduct rather than attempting a bright line rule.

Different states say different things with regard to whom a judge may “friend,” says Randall Roybal, director of the New Mexico Judicial Standards Commission, the Supreme Court’s disciplinary arm.

“Some things are clear – for example, a judge cannot have ex parte contact regardless of the platform,” he said, referring to any communication where only one party in a dispute participates.

New Mexico does not have a rule or opinion addressing social media, as the recusal motion in the horse slaughter case pointed out. But Bruce Garber, who heads the New Mexico Judicial Ethics Committee, says that the absence of a rule does not mean social media isn’t covered by the Code of Judicial Conduct.

“I don’t think there’s something that says, ‘Don’t put silly stuff on your Facebook page,’ ” he said. “Certainly we’re aware of the peril of any judge who publishes something. … The philosophy behind the Supreme Court rules is, ‘Be careful, because it may come back,’ whether it’s a statement to the press” or a Facebook posting.

It’s impossible, Garber said, for a rule to describe every troublesome site or every potentially dicey situation for a judge.

Roybal said the commission is mindful of the issue, though it has come up directly just once.

A cautionary letter was issued to a judge in 2012, according to the commission’s 2013 annual report published recently online.

The judge, unnamed in the report, “allegedly made comments on a social media site concerning a case over which he was presiding and which was ongoing, including comments about the jury’s verdict. The commission cautioned the judge to refrain from making public or non-public statements on pending or impending proceedings.” The commission imposed but suspended on conditions a mentorship on the issue.

The facts in the report correspond to a post by then 2nd District Judge Sam Winder on his campaign website in 2012. Winder posted, and later took down, a comment that “justice was served” when a jury convicted the defendant in a murder trial over which Winder presided, and thanked readers for their prayers. Sentencing was still pending at the time.

Winder lost the general election to then-Metropolitan Court Judge Benjamin Chavez.

‘Like,’ don’t ‘friend’

In the horse slaughter case in state court, the attorney for Valley Meat Co. attached an email from Jake Arnold, a spokesman for the Rio Arriba County sheriff and a Democratic party activist, opining that the posts on Judge Matthew Wilson’s website failed to pass the “smell test” and created a “suspicion of impropriety,” and a 2011 formal opinion by the California Judges Association on social networking.

The opinion said that, in the context of social networking, “The responsibility to avoid the appearance of bias goes further than simply not making such comments oneself. … A judge is obligated to delete, hide from public view or otherwise repudiate demeaning or offensive comments made by others” on the judge’s site.

Leaving them, the opinion suggests, could create the impression that the judge has adopted the comments.

The opinion gave a qualified heads-up to the idea of judges joining an online networking community and to include lawyers who may appear before the court.

But it said a judge may not include lawyers who have cases pending before that court.

In Wilson’s case, the posts were removed from his Facebook page, but the recusal motion said it was too late.

Wilson declined comment through his campaign director Brian Morris. Morris said he administers the website for Wilson and for other judicial candidates who face a partisan election under New Mexico’s hybrid judge selection process, and that it is considered a business/political Facebook page as opposed to a personal one. People can “like” the page but cannot “friend” the judge.

“Anyone can post on it,” Morris said. “I don’t know who they are. The real distinction is he didn’t say anything. Other people put their opinions (about the case).”

Appointed to the seat in October, Wilson is expected to draw opposition in the Democratic primary for the seat.

Increased confidence

Other jurisdictions have taken varied approaches.

New York’s highest court said in 2008 that judges could use social networking sites but should exercise discretion and, in 2013, it counseled that the mere status of being a Facebook “friend” with someone is not enough to require recusal.

Ohio found that a judge might be a network “friend” with an attorney who appears before him or her but cautioned that the judge must comply with the Code of Judicial Conduct.

Massachusetts said “friending” of an attorney creates the impression of special influence and therefore under the judicial code is not allowed for any attorney who might appear before that judge.

The ubiquity of social media prompted the American Bar Association last year to offer its take on judges making the plunge into social networking.

“As with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any contact that would undermine the judge’s independence, integrity or impartiality, or create an appearance of impropriety,” it said.

Cynthia Gray of the American Judicature Society’s Center on Judicial Ethics reported that social networking has become “an apparently indispensable tool in election campaigns,” citing a 2012 survey that found judges who run for election are more likely to use such sites than those who do not.

Gray, who is a consultant for the New Mexico Judicial Standards, wrote that judges’ confidence that they can use social media without ethical breaches is also increasing, though their reservations have prompted many to seek advisory opinions.