Be Careful What You Like On Facebook

There are those who claim that judges should not participate in social media, and others who see social media as an effective communication tool in our modern society. Some state ethics officials prohibit it and others don’t. But if you do use Facebook or Twitter, be cautious, as illustrated by this recent decision in Kentucky.  A Kentucky judge whose social media interactions raised questions about his impartiality was recently removed from presiding over a politically hot-button lawsuit challenging an investigation of mass teacher protests by Republican Gov. Matt Bevin’s administration.

The state’s chief justice, John D. Minton Jr., disqualified Franklin County Circuit Judge Phillip Shepherd from hearing the suit brought by Bevin’s political nemesis, Democratic Attorney General Andy Beshear. Bevin and Beshear are locked in a close race for governor this year.

Minton transferred the “teacher sickout” case to circuit Judge Thomas Wingate.

The lawsuit challenges the state Labor Cabinet’s authority when it demanded that several school districts turn over the names of teachers who called in sick during protests at the state Capitol during this year’s legislative session. In some districts, so many teachers called in sick that schools closed. Bevin has harshly criticized teachers for using sick days to protest, which has become a key issue in Beshear’s effort to oust the Republican incumbent.

Bevin’s legal team sought Shepherd’s removal from the case because the judge “liked” a Facebook post that showed a photo of a Democratic lawmaker with a Beshear campaign volunteer. The governor’s lawyers said that raised questions about the judge’s impartiality.

Shepherd has noted that he’s also “liked” posts that “celebrated Republicans promoting their cause (which includes the re-election of Gov. Bevin) at the State Fair, the visit of President Donald Trump to Louisville” and a reception honoring Bevin’s ticket. Shepherd has said his intent in “liking” such posts was to encourage people to “actively participate in our democracy.”

In his order Friday, Minton said he was convinced that Shepherd would have presided over the case in a “completely fair, neutral and unbiased manner.” But the chief justice noted that the standard for disqualification doesn’t require actual proof of bias.

“Rather, the standard simply requires a disqualification in circumstances where the judge’s impartiality might reasonably be questioned,” Minton wrote.

“Given that Judge Shepherd’s ‘like’ may reasonably be perceived as a public endorsement of a candidate’s campaign, that the candidate is a party in this case, and that this case involves a central issue in that candidate’s campaign, this is one such circumstance,” he added.


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