Judge Must Recuse After Initiating Facebook Friend Request to Litigant–Chace v. Loisel
We’ve blogged about several cases where courts said Facebook friendships between litigants and judges do not necessarily warrant recusal. (See “Judges’ Facebook Friendships Insufficient for Recusal .. Again”.) This case presents a slight twist on the facts.Chace was one of the parties in a marriage dissolution proceeding. Prior to entry of judgment, the presiding judge sent a “friend” request to Chace. After consulting with counsel, Chase declined the request, after which the trial court entered a judgment not particularly favorable to Chace. Following entry of judgment, Chase filed a complaint against the judge, alleging that the unfavorable ruling was retaliatory because she declined the judge’s friend request. Interestingly, Chace came across other cases where the trial judge had similar ex parte social media communications with litigants. Her motion was denied.
On appeal, the court says that disqualification is required where there is a “well-founded” fear that the party will not receive a fair hearing. While subjective believe of bias is insufficient, disqualification is appropriate where there are facts sufficient for a reasonable person to form an impression of bias. Here, the ex parte friend request satisfies this standard:
The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the ‘friend’ request.
The court discusses Domville, a Florida case dealing with Facebook friendships between judges and lawyers. In Domville, the Florida appeals court said disqualification was required. (The Florida Supreme Court denied review.) The court here expresses “serious reservations” about the court’s rationale in Domville, noting as did our blog post that a “Facebook friendship does not necessarily signify the existence of a close friendship.” Domville’s logic would require disqualification where there’s an acquaintance relationship, and this would be untenable “particularly in smaller counties, where everyone in the legal community knows each other.” The court says that requiring disqualification where there’s a Facebook relationship between lawyers and judges:
does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.
Although the court criticizes the rationale in Domville, the court concludes that if disqualification is appropriate where there’s a Facebook relationship between a judge and a lawyer, it’s even more appropriate where a judge extends an invitation of Facebook friendship to a party. Thus, disqualification was required here.
The court also notes that the trial judge’s Facebook friend request is prohibited by the Code of Judicial Conduct. See Canon 2 (“A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities”).
It’s nice to see the court back off from the draconian rationale in Domville. The acquaintance analogy is apt, and given the well-accepted norm of socialization between judges and lawyers, requiring disqualification merely on the basis of a Facebook friendship makes no sense. For what it’s worth, the initiation of a friendship between a judge and a lawyer during a pending case may warrant different treatment than an existing friendship.
Coming back to this case, what in the heck was this judge thinking? On the bright side, the record does not contain any facts indicating improper motive (e.g., harassment). Still, there is no ethical universe in which the initiation of a friend request by a judge to a litigant would be appropriate. Judges should know better, and although I’m firmly of the view that social media settings are not so complicated that the judiciary can’t figure out the rules of the road. Unfortunately, situations like this give some pause.
Add this to the growing body of case law that recognizes the inconsequential nature of Facebook friendships. Here, the court notes that one of several phrases can describe Facebook friendships, including “acquaintance .. and virtual stranger”. In Quigley Corp. v. Karkus the court expressly ascribed no significance to a “friends” reference, noting that “‘friendships’ on Facebook may be as fleeting as the flick of a delete button.”
Eric’s Comment: If the judge waits to make the friend request until after entering judgment, the friend request would be bizarre and possibly out-of-context but not improper (assuming there are no further proceedings likely in front of the same judge). I can’t conceive of any proper motivation behind the friend request that made it so urgent that the request couldn’t wait.
Case citation: Chace v. Loisel, 2014 WL 258620 (Fl. Ct. App. Jan 24, 2014) [pdf]
[image credit: Shutterstock/virinaflora: "best friends"]