We previously discussed the bizarre case of Faulkner County Circuit Judge Mike Maggio who was identified as an anonymous commenter known as “geauxjudge” in a an an interesting controversy in Arkansas where Maggio was was outed from online sites. Maggio previously apologized and withdrew from a race for the appellate court. The controversy raised the question of whether such comments should be a subject for ethical discipline and whether judges should have the right to comment anonymously on such sites. Now Maggio has been permanently removed from the bench for his discussion of a confidential adoption of a child by actress Charlize Theron. He agreed with the Arkansas Judicial Discipline and Disability Commission about the lifetime ban. However, the Arkansas Supreme Court rejected the recommendation because it included Maggio being suspended with pay until the end of the year when his term expires.

The Supreme Court ruled that “We deem any further suspension with pay to be inappropriate. Therefore, we order the removal of Judge Maggio from judicial office, effective as the date of this opinion. By this order, Judge Maggio is henceforth prohibited from holding any judicial office in the state of Arkansas.”

In a footnote in the opinion below, the Court also noted that “There also was a sixth complaint lodged against Judge Maggio, based on rulings he made in a case styled Estate of Martha Bull v. Greenbrier Nursing and Rehabilitation Center, and also involving certain campaign contributions and campaign activities of the judge.” However, that matter was not addressed and is now closed.

The most controversial comments appeared on a Louisiana State University message board called Tiger Droppings. In one comment, Geauxjudge made fun of the name of a University of Alabama football player who is black, Ha’Sean “Ha Ha” Clinton-Dix. He questioned the wisdom of parents giving such irregular names to their children: “I do agree about names may not be predictors of future success but in reality: How many doctors do you hear named Dr. Taneesha or Ha-Ha? How many bankers do [you] hear named Brylee? So stick with something close to normal. Or come sit in criminal court any day and see the ‘common names.'”

In another comment, Geauxjudge discussed how divorce is too quickly pursued in many cases and later regretted:

“I see it every day. A woman makes [an] emotional decision to divorce because the husband stepped out. When otherwise he was a good provider, father and husband . . . then a year or two later realizes uh oh I am worse off financially, emotionally and relationship wise but hey they showed that SOB. Too many times the women get their advice from other divorced women.”

In yet another comment, he observed that “Men have two needs. Feed me and f— me. Take care of both we will be good. Whichever one you don’t then the man will find. Women have need for security. So man take care of that and will be OK.”

In another comment he described a story about a woman having sex with a dog, as “just a small step” from having “TGGLBS” sex (an apparent reference transgender, gay, lesbian or bisexual sex).

There is obviously content in these postings that raise serious questions of prejudice. However, there is also the question of whether a judge, using anonymous identities, should be afforded the same right of expression of others, including obnoxious or juvenile couples. Maggio did not comment under his name or associate comments with his office in most of the comments. I have previously written about concerns that public employees are increasingly being disciplined for actions in their private lives or views or associations outside of work. We have previously seen teachers (here, here, England, here, here, here, here, here, here, here, here, here, here), here, here, students (here and here) and other public employees (here and here and here) fired for their private speech or conduct, including school employees fired for posing in magazines (here), appearing on television shows in bikinis (here), or having a prior career in the adult entertainment industry (here).

Judicial ethics rules make clear that judges are subject to scrutiny for public comments:

Rule 1.2. A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
Official Comment [2]: A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens, and must accept the restrictions imposed by the Code.

Thus, judges are put on notice of this added burden. Rule 3.1 is even broader in prohibiting any “extrajudicial activities . . . that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”

However, Mastio did not act in public by name in his assuming anonymous status. Indeed, the adoption of such a status could be viewed either as an evasion or a recognition of his unique responsibilities in terms of public disclosure.

Judges are clearly different in that they are expected to uphold the dignity and credibility of their courts in their public actions, including during non-work hours. However, Maggio never used his identity or this courts. His true identity was deduced by piecing together references and asides.

The most serious ethical concerns were raised in a discussion of how a “judge friend” handled the adoption of a son by actress and Oscar winner Charlize Theron and shared details. Since adoption proceedings are confidential, the comments raise major questions of judicial impropriety and disclosure violations.

In this discussion, Geauxjudge makes fun of Theron’s adoption of a black South African childen (Theron was born in South Africa) and gives details from the case. He discusses how she came to court with an entourage for the single-parent adoption and jokes that “I offered to be the baby daddy.” He also asks “Did she get herself a black baby?” and answers “Yep.”

In his apology, Maggio said that “During my life, I have prided myself in treating all fairly and with respect, both personally and professionally . . . My friends, family and colleagues know me and can appropriately attest to how I have treated others. I stand by their opinion and regret letting them down.”

This is not the first ethical controversy for Mastio. He was previously sanctioned for using campaign funds for personal expenses and was accused of using some type of badge to avoid a speeding ticket. He was first appointed by then Gov. Mike Huckabee. He is a former prosecutor. He is not a graduate of LSU however. He has an undergraduate degree from Millsaps College in Mississippi in 1983. He attended law school at University of Mississippi for three years but actually received his J.D. from University of Arkansas at Little Rock in 1989.

The adoption discussion clearly crosses the line where Maggio refers to inside knowledge. Moreover even his anonymous handle, Geauxjudge, refers to being a judge.

Putting aside the adoption disclosures (which necessarily trigger an ethics investigation), I am more interested in the other discussion involving public controversies. Should a judge be held accountable for such anonymous comments even if they are racist or homophobic? I am concerned about free speech implication of such discipline, particularly when someone has used the right of anonymity. I can see the right of individuals in using information to reveal his identity (and such views being weighed by voters). However, the involvement of the bar raises the question of whether it should set aside the majority of comments and only focus on the alleged disclosure of confidential information. I certainly do not like the inclusion of “judge” in the anonymous handle or the references to legal proceedings. However, this case could allow for some usual lines to be drawn between judicial ethics and free speech.

Here is the opinion: Maggio Opinion.

The decision comes on the heels of another cases that we previously discussed of a New Orleans prosecutor who anonymously posted material on a case on the Internet. Sal Perricone has now blamed his use of Ambien and heavy workload for the postings.

Source: ABA Journal