In re Slaughter

• Decision Date: 30 September 2015
• Docket Number: No. 15–0001.,15–0001.
• Citation: 480 S.W.3d 842
• Parties: In re Honorable Michelle SLAUGHTER, Presiding Judge of the 405th Judicial District Court, Galveston County, Texas.
• Court: Texas Special Court of Review

480 S.W.3d 842

In re Honorable Michelle SLAUGHTER, Presiding Judge of the 405th Judicial District Court, Galveston County, Texas.

No. 15–0001.

Special Court of Review Appointed by the Supreme Court.

Sept. 30, 2015.

OPINION

PER CURIAM.

This Special Court of Review¹ is assigned to conduct a trial de novo of the State Commission on Judicial Conduct's Public Admonition and Order of Additional Education issued against Respondent, the Honorable Michelle Slaughter, Judge of the 405th Judicial District Court in Galveston, Galveston County, Texas, selected "by lot" and appointed by the Chief Justice of the Texas Supreme Court. See Tex. Gov't Code Ann. § 33.034 (West Supp.2014) (providing the procedure for appealing the Commission's sanctions). We note at the outset that the function of the Commission "is not to punish; instead, its purpose is to maintain the honor and dignity of the judiciary and to uphold the administration of justice for the benefit of the citizens of Texas." In re Lowery, 999 S.W.2d 639, 648 (Tex.Rev.Trib.1998, pet.denied).

Article V of the Texas Constitution states that any judge may be disciplined for:

willful or persistent violation of rules promulgated by the Supreme Court of Texas, incompetence in performing the duties of the office, willful violation of the Code of Judicial Conduct, or willful or persistent conduct that is clearly inconsistent with the proper performance of his [or her] duties or casts public discredit upon the judiciary or administration of justice.

Tex. Const. art. V, § 1–a (6)(A). The Texas Constitution further provides that after receipt of a written complaint and an investigation, the Commission may, among other things, issue a private or public admonition, warning, reprimand, or requirement that the judge obtain additional training or education. Tex. Const. art. V, § 1–a (6)(A), (8). Upon receipt of notification of any type of sanction, the judge may request a special court of review be appointed by the chief justice of the supreme court to review the action of the Commission. Tex. Gov't Code Ann. § 33.034(b) ; Tex. Rules Rem'l/Ret. Judg. R. 9(a) (West 2015). The Commission then files a charging document with the allegations of judicial misconduct against the judge. Tex. Gov't Code Ann. § 33.034(d). The special court of review holds a trial de novo and renders its decision by written opinion. Id. § 33.034(e), (h). As this review is governed to the extent practicable by the rules of law, evidence, and procedure that apply to the trial of a civil action, the Commission has the burden to prove the charges against a respondent by a preponderance of the evidence. See id. § 33.034(f) ; In re Hecht, 213 S.W.3d 547, 560 (Tex.Spec.Ct.Rev.2006) ; In re Canales, 113 S.W.3d 56, 66 (Tex.Rev.Trib.2003, pet.denied) ; In re Davis, 82 S.W.3d 140, 142 (Tex.Spec.Ct.Rev.2002).

In its Charging Document, the Commission charged the Respondent with misconduct for posting certain comments on her Facebook page about an ongoing trial in her court, as well as other matters unrelated to the trial that had occurred in her courtroom. In Charge I, the Commission alleged that:

Judge Slaughter's decision to use her "Judge Michelle Slaughter" Facebook page as the medium through which to comment publicly and enthusiastically about pending criminal cases was inconsistent with the proper performance of her duties as a judge. By engaging in this conduct, Judge Slaughter used the trappings of judicial office to boost her message and, thereby, cast reasonable doubt upon her impartiality and gave rise to a legitimate concern that she would not be fair or impartial in these or other cases.

Pursuant to this allegation, the Commission alleged that the Respondent willfully violated Canon 3(B)(10) of the Texas Code of Judicial Conduct, and that her willful or persistent conduct was clearly inconsistent with the proper performance of her duties in violation of Article V, Section 1–a(6)(A) of the Texas Constitution.

In Charge II, the Commission alleged that "Judge Slaughter's extrajudicial Facebook activities cast reasonable doubt upon her impartiality and interfered with the proper performance of her duties as a judge in that, as a direct result of her conduct, Judge Slaughter was ordered to be removed from presiding over a criminal case...." Her removal ultimately led to a subsequent judge granting a mistrial in the case. Under this charge, the Commission alleged that Respondent's conduct constituted willful violations of Canon 4(A) of the Texas Code of Judicial Conduct, and willful or persistent conduct that is clearly inconsistent with the proper performance of her duties in violation of the standards set forth in Article V, Section 1–a(6)(A) of the Texas Constitution.

Finally, in Charge III, the Commission alleged that by engaging in the extrajudicial Facebook activity and by "disregarding her own admonition to jurors about the use of social media during the trial, Judge Slaughter failed to uphold her duty to promote and maintain public confidence in the integrity, impartiality, and independence of the judiciary." The Commission alleged the Respondent's conduct "became the focus of criticism due to the attendant media attention" and "cast public discredit upon the judiciary or administration of justice" in violation of the standards set forth in Article V, Section 1–a(6)(A) of the Texas Constitution.

The Respondent, in both her written responses to the Commission's allegations and her testimony at trial, asserted that her social media postings did not violate the Texas Code of Judicial Conduct of the Texas constitution. In the alternative, she asserted that if her conduct was found to be in violation of the Texas Code of Judicial Conduct, then the Code abridges her freedom of speech guaranteed by the First Amendment to the United States Constitution.

We conclude the Commission has failed to meet its burden of proving the Respondent violated the Canons of Judicial Conduct or Article V, Section 1–a(6)(A) of the Texas Constitution, we dismiss the Commission's public admonition, and find the Respondent not guilty of all charges.²

I. FACTS

The Respondent maintained a public Facebook page which displayed: (1) a photograph of the Respondent wearing her judicial robe; (2) featured a photograph of the Galveston County Courthouse; and (3) described the Respondent as a "public figure" and as "Judge of the 405th Judicial District Court." After her election to the bench, the Respondent was very active in posting comments about matters that were occurring in her court and in utilizing her Facebook page as a means to educate the public about her court.

On April 28, 2014, a high profile, criminal jury trial was scheduled to begin in the Respondent's court. The case involved a man charged with unlawful restraint of a child for allegedly keeping a nine-year-old boy in a six-foot by eight-foot wooden enclosure inside the family home. The case became known in the media as "the Boy in the Box" case.

A couple of days before the trial was set to begin, the Respondent posted the following on her Facebook page,

We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning.

The following day, in response to the above-described post, a person posted the following comment on the Respondent's Facebook page,

One of my favorite Clint Eastwood movies is 'Hang 'Em High,' jus sayin your honor ...

After the jury was seated in the case, the Respondent provided the jurors with oral instructions regarding their conduct during the trial. Specifically, the Respondent admonished the jury regarding their use of social media, including Facebook, and their prohibition of accessing any news stories related to the trial. The Respondent expressly told the jurors the following:

During the trial of the case, as I mentioned before, you cannot talk to anyone. So make sure that you don't talk to anyone. Again, this is by any means of communication. So no texting, e-mailing, talking person to person or on the phone or Facebook. Any of that is absolutely forbidden.

In addition, the Respondent provided written instructions to the jury that included the following admonition:

Do not make any investigation about the facts of this case.... All evidence must be presented in open court so that each side may question the witnesses and make proper objection. This avoids a trial based upon secret evidence. These rules apply to jurors the same as they apply to the parties and to me (the Respondent).

On April 28, 2014, the defendant in the criminal case elected to have the Respondent determine his punishment in the event of his conviction. The following day, the Respondent posted the following separate comments on her Facebook page:

Opening statements this morning at 9:30 am in the trial called by the press "the boy in a box" case.

After we finished Day 1 of the case called the "Boy in the Box" case, trustees from the jail came in and assembled the actual 6′ x 8′ "box" inside the courtroom!

This is the case currently in the 405th!

In the third post listed above, the Respondent included a link to a Reuters article entitled "Texas father on trial for putting son in box as punishment."

On the third day of trial, defense counsel in the criminal case filed a motion to recuse the Respondent and a motion for mistrial based on the Respondent's Facebook activities. A visiting judge assigned to hear the motion to recuse granted the motion and removed the Respondent from the case. The case was transferred to another court and that judge granted the defendant's motion for mistrial, causing the case to be retried. In the subsequent trial, the defendant was acquitted of the charges.

After the initial complaint was filed, the Commission examined all of the Respondent's Facebook postings and found other postings it believed improper. On February 5, 2014, the Respondent posted the following comment on her Facebook page regarding another matter pending in her court:

We have a jury

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