Judge Faces Disciplinary Action for ... Having a Life?

Apparently, what happens in Vegas doesn’t stay there if you’re a judge – at least one with social media and a life. Clark County, Nevada, Judge Erika Ballou just got hit with a complaint filed by the Nevada Commission on Judicial Discipline.

You’d think that with such a formal reprimand, Judge Ballou must have done or said something pretty wild. After all, judges are no saints, and there have been many cases of the black-robed arbiters engaging in some serious misdeeds.

But it’s not clear whether Judge Ballou has crossed a line, or whether the Commission is simply being overly sensitive. Let’s take a look at the action by the judge and the accusations levied against her, and perhaps you can decide for yourself if the situation really warrants getting canceled in court.

Gram-atical Issues

The complaint focused primarily on Judge Ballou’s social media usage, in particular, two unrelated incidents of posting from occasions in her personal life. First, the Commission called the judge out for her post on Instagram one night in 2021: "Life is STILL beautiful, despite the fact that Billie Eilish doesn’t START for thirty minutes and I have a 8:30 [sic] calendar tomorrow."

Ballou’s sin? It’s not necessarily clear. Going to a music festival on a weeknight? Posting about having work the next morning? Hanging with abogados and Avocados?

The complaint also suggested that her tags were inappropriate: “#WhereInTheWorldIsCarmenSanDiego” and “VacateTheShitOuttaCustodyCase.” Your guess is as good as ours on what’s wrong with the first one.

For the second, the complaint pointed out that the hashtag undermined confidence in the judiciary. It accused Ballou of violating a Nevada rule that says: “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.”

Before she was a judge, Erika Ballou had served over 15 years as a public defender, was awarded a National Criminal Defense College Scholarship by Nevada Attorneys for Criminal Justice, and served on Nevada courts’ Jury Services Committee working to develop improvements that could enhance jury service processes. Is it really any wonder that she might have made some good friends within the public defenders that she keeps to this day?

The strong lean in a judge’s resume toward one side (here, defendant-friendly) is common enough. Judges will inevitably be experienced and affiliated more with one side of the adversarial process than the other, just as it’s inevitable that their reasoning in decisions will be shaped by these experiences, try as they might to maintain the requisite impartiality.

Ballou Gets in Hot Water

Separately, the complaint took issue with a social media post by Ballou the next year. In 2022, she posted on Facebook a photo of herself in a hot tub with public defenders Shana Brouwers and Robson Hauser and a caption stating “Robson is surrounded by great tits.” The complaint said that with this post, Ballou violated the Nevada rule that says that “[a] judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”

The accusation is by no means a slam-dunk. It certainly doesn’t seem clear that by spending time with her friends—who happen to be public defenders, not coincidentally, as a judge who was a former public defender—that their office is in a “position to influence the judge.” It’s not exactly like they were trying to pull an Elle Woods, and Ballou’s comment is one that a reasonable person would interpret as meant in jest.

"Extrajudicial Activities"

The Nevada rules allow judges to engage in “extrajudicial activities,” with caveats. The complaint accuses Ballou of violating the rule that states: “However, when engaging in extrajudicial activities, a judge shall not . . . participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” The complaint says that in both scenarios—the 2021 Instagram post from the concert and the 2022  Facebook post of the hot tub—Ballou violated this rule.

What’s an “extrajudicial activity”? If it sounds a lot like the word “extracurricular activity” you may remember from high school, that’s a pretty good comparison. Think back to when you were a student. There were certain rules for extracurricular activities, many of which overlapped with rules that governed “curricular” activities (those within the classroom). You’d get a detention for dropping an F-bomb at a teacher both in class and at marching band practice. Maybe you had a little more leeway in extracurriculars; maybe you couldn’t use cellphones in the classroom, but you could during dress rehearsal.

With judges, judicial activities and extrajudicial activities work similarly. Judges have all kinds of rules governing what they can and can’t do on the job, both during court and in chambers. There’s a reason that judges (most, anyway) are so solemn (and maybe a little boring) during a trial. For example, in order to preserve impartiality (and the appearance of it), judges must treat all parties equally, giving the same respect and fairness to all participants, regardless of their background or position. Judges cannot communicate with one party without the other present to ensure fairness. Judges typically wear formal attire to uphold the dignity of the court. Judges cannot accept gifts or favors that could be seen as influencing their decisions.

An "extrajudicial activity" generally refers to any activity that takes place outside the formal judicial process. The term can encompass a broad range of actions, but it is often used in legal contexts to describe activities that are related to the law but are not directly part of court proceedings.

Examples of extrajudicial activities provided by various state’s rules include: lecturing, speaking, or teaching at a law school; consulting for a legislature or appearing at a hearing; and being a board member of a non-profit related to the law. On the other hand, a judge generally isn’t supposed to practice law or be an arbitrator or mediator. Judges are even allowed to accept compensation for their extrajudicial activities, to a certain extent (again, it can’t appear to “undermine the judge’s independence, integrity, or impartiality”).

But what Judge Ballou was doing can’t really, by any stretch of the definition, be considered “extrajudicial activities.” Whether the “activity” refers to hanging out in a hot tub with public defenders and going to a concert on a work night, or refers to posting about those things on social media, the activity in question is entirely outside the definition of “extrajudicial.” Even if you could argue that these posts aren’t entirely confined to Ballou’s personal life, since she mentions work and her role as a judge, that is not enough to constitute “extrajudicial activity” by Nevada’s own definitions.

A Lot of Hulla-Ballou

Some state rules limit judges' activity on social media to avoid compromising their impartiality. Alternatively, states will have precedent in the form of disciplinary hearings that shape such rules. But Nevada’s code of judicial conduct does not outline the standard of social media usage specifically. The state does have a Model Code of Conduct for Court Professionals, but it explicitly does not apply to justices.

All in all, it’s really not clear whether Judge Ballou’s conduct crosses any hard lines. Rather, it seems perhaps that “cancel culture” has made its way into the gatekeepers of the judiciary. The judge has made her Instagram page private now, so she seems to be taking the right precautions for now. As to the consequences for her past posts, we can only wish her luck that the Commissioners share her sense of humor.

Related Resources

• SCOTUS' New Ethics Code: Not Really New, Not Really a Code. But It's Something. (FindLaw's Federal Courts)
• What Are Legal Ethics and Professional Responsibility? (FindLaw's Learn About the Law)
• Lawyers Behaving Badly 2022 (FindLaw's Don't Judge Me Podcast)