According to Oxford Reference, it was Walter Reuther who coined the phrase:
"If it looks like a duck, walks like a duck and quacks like a duck, then it just may be a duck."
Similarly, at some point, someone said "Sometimes a cigar is just a cigar." Many attribute to Freud, but there are doubters and even critics. The point of the phrase is explained to focus on analysis and consideration: "the importance of considering both the conscious and the unconscious aims of an action."
This blog is often about workers' compensation, and there are those who strive to hold me to that. But, it is often about the challenges of judging and the many issues that can accompany the task. For some reason, the news has recently been a verdant ground of judicial ethics stories. See Arrested and Charged (January 2024) and Asleep at the Switch (January 2024).
This weeks brings to focus two intersecting thoughts about judicial behavior stemming from accusations against a judge in the great state of Nevada. The American Bar Association (a private, voluntary organization to which some lawyers belong) notes Judge's hot tub social media post makes waves with judicial conduct commission; she quotes Cardi B in response.
At the outset, most judges would be well served to avoid the perils of social media. See Lyric Choices (July 2023). There is bad behavior, poor appearances, then there is the stupidity of recording your behavior and advertising it voluntarily to the whole world. See, in the world of judging, behavior still matters. But the appearance is as relevant, and much harder.
Judge Erika Ballou is reportedly charged with two events. The first involves her posting pictures of herself with two friends in a hot tub. The second involves her social media post about attendance at a concert. Neither of those seems so troublesome on the face of things. But, the Code of Judicial Conduct itself is not so much about the surface as it is the substance.
In 2022, the judge took a selfie showing the judge and some public defenders together in the hot tub. The caption was descriptive and classless, but let's skip over that. Click on the link to ABA is "know you must." The problem with the hot tub shot is likely tied to the troublesome caption, but as much to the fact that the judge is a former public defender and is posing with public defenders. The implication is that she is intimate friends with these two, who are on one side of the disputes that she adjudicates. That creates two potential Canon One problems (Rule 1.2 in Nevada).
"A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary"
Does the picture of a judge with two public defenders in a hot tub with a risque caption "promote public confidence in the independence, integrity," of the judiciary? But, it certainly creates a Canon One problem (Rule 1.2 in Nevada):
"and shall avoid impropriety and the appearance of impropriety."
Cambridge Dictionary says impropriety means
"behavior that is dishonest, socially unacceptable, or unsuitable for a particular situation."
Ok, classless picture caption? check. Appearing in social setting, most relaxed social setting, with two members of an office that regularly appear in court before you? check. Problem? check.
Before this little picadillo, back in 2021, the judge complained on Instagram about the tardiness of a musical act. Not a problem. Complaining about the fact the judge had a busy schedule the next day? Still not a problem. Creating a hashtag for the post to suggest that the judge's reaction will therefore be to make expeditious and rote (likely inappropriately blanket) decisions in difficult cases? Priceless Inappropriate. (#VacateTheShitOuttaOutofCustodyCases).
The reader will easily see a similar problem here with the "public confidence." Some might additionally see a Rule 2.2 problem: "A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially." When a judge announces ahead of time how she or he might rule, might someone feel that there is a lack of "fair(ness) and impartiality?"
Might a judge be perceived as having a Rule 2.3 problem, deciding cases "without bias or prejudice?" Might one see an issue of Rule 2.5: "A judge shall perform judicial and administrative duties competently and diligently." Some might question the competence of a judge that prejudged and decides to just "#vacatetheshit" as somewhat less than diligent or competent.
In the judge's defense, she became a judge only three years ago, 2021. Certainly, there may be a learning curve for any new job. Perhaps there is an inclination for a bit of leeway, some latitude? But, one might note that the Code is fairly simple reading and these examples are not really close calls, objectively or subjectively.
On the side of punishment, an "aggravating factor" perhaps, the judge had a previous run-in with the Code of Judicial Conduct for her racially charged statements against the police (the ones that make the arrests, for which the prosecutors prosecute, and for which her hot tub buddies defend). The judge allegedly made disparaging remarks about "the cops," in a generalized and disrespectful manner. The news is not clear, but it appears she was not punished or counseled for that previous inappropriateness. Perhaps, the failure of consequence in one instance led to or facilitated the hot tub debacle?
For now, it appears, the judge is not responding publicly (the ABA Journal notes its contacts were not responded to). But, perhaps she will respond on Instagram with some additional wit and wisdom? Perhaps she can counter the reality of the situations, and the existence of any actual bias, doubts about confidence, and partiality. Her words may be powerful in explaining how the Instagram post and the hot tub photo are not, objectively, troublesome.
But, the Code is much broader than actuality and reality. To be blunt, it is the "Appearance":
"and shall avoid impropriety and the appearance of impropriety."
Despite any actuality, practicality, or demonstrability, the judge faces serious issues with appearance(s). And the fact that many news outlets find this newsworthy and salacious perhaps somewhat contributes to the probable perception of an "appearance." In all, across the world wide web, it may be fair to say that Judge Ballou has brought untoward, unfortunate, and inappropriate attention to herself, the bench, and Nevada. According to News8, she is pleased that she is getting more social media attention: "I started speakin’ my mind and tripled my views.”
But let's face it folks, anyone that wants to be can become Instagram famous. It does not take skill, intellect, or cleverness. Any fool willing to debase themselves can easily go viral. But, is viral for viral's sake worthwhile? Is debased for the sake of popularity appropriate?
This set of charges may be critical. Judge Ballou may look back on this with different feelings in retrospect. As to the potentials, some might suggest merit in Cardi B's thought: "Yeah, it's not a threat / It's a warnin'."
"If it looks like a duck problem, walks like a duck problem and quacks like a duck problem, then it just may be a duck problem." This will be intriguing to watch evolve.
