Judges’ Facebook Friendships Insufficient for Recusal .. Again
[Post by Venkat Balasubramani]
I recently blogged about a trio of cases involving attempts to unseat jury verdicts based on social media relationships between the jurors and witnesses or parties. (“No New Trials When Jurors Haven’t Adequately Disclosed Facebook Friendships.”) Parties have taken the same approach with judges and Facebook friendships, but have not had much luck either.
Clore v. Clore, 2013 WL 3242821 (Ala. Civ. App. June 28, 2013): this was a divorce proceeding where the trial court entered an order dividing the marital property and awarding some rehabilitative alimony to the ex-wife. She sought a new trial, alleging among other things, that the trial judge’s Facebook friendship with the parties’ daughter tainted the proceedings.
The trial judge denied the motion, stating in part:
[Facebook] is a social networking site where the word ‘friend’ is used [in a way] that doesn’t have anything to do with the way before this Facebook.com ever existed-the way we used the word ‘friend’…
[J]ust because a person is connected to me on here in this manner doesn’t have anything to do with a personal relationship. I don’t have a personal relationship with this friend. We all live in a small town. I have heard both of you all’s names. I heard [the daughter’s] name before we came in here today.
The appeals court is equally unsympathetic, saying that the wife offered nothing beyond the “bare status of the parties’ daughter as a friend of the judge.” The court also faults the wife for not raising the issue earlier in the proceedings.
Lacy v. Lacy, 320 Ga. App. 739 (Ga. Ct. App. Mar. 25, 2013): this was a factually and procedurally complicated divorce proceeding. The father (ex-husband) had a variety of qualms about the judges. For example, he filed a motion to recuse all superior court judges in the particular circuit on the grounds that the chief judge was related to the mother and the chief judge’s son was a witness in the case (because he had submitted a character affidavit on behalf of the mother). One of several judges who heard different parts of the case issued a ruling denying the father’s emergency change-in-custody motion, enjoining the father from contact with children, and ordering the father to pay the mother’s attorney’s fees. The father did not bring a motion to recuse, but argued that a Facebook comment purportedly left by the mother reflected bias that required recusal. Allegedly, the mother left a comment that boasted:
[J]udge [P]arrott and my dad ha[d] a meeting the week before our case and guess what you lost your kids.
The court rejects this as evidence of facts that required recusal, saying that even if this was competent evidence that such a meeting took place, the mother’s father was not a party to the case, and the Facebook comment does not show that the judge “gleaned any personal knowledge of the facts involved . . . from [the meeting].” The court also adds that although the mother’s comment indicated that the result of the case had been pre-judged, the court says that neither her nor the father’s perception is dispositive.
While these cases treat Facebook friendships, and in the second case even contacts, as largely irrelevant to the recusal question, this can be contrasted with a case from Florida where a judge was disqualified over a Facebook friendship with the prosecutor. (See Florida Judge Disqualified Over Facebook Friendship With Prosecutor -– Domville v. Florida.) In that case, the appeals court said that it was not a fact of the friendship itself, it was the fact that the public display of friendship conveyed an impression that the lawyer was in a position to influence the judge.
By that standard, the social media interactions in Lacy v. Lacy certainly conveyed the impression that the person who was friends with the judge was in a position to (improperly) influence the case outside the courtroom. Indeed, the litigant’s own (purported) statement said as much. Perhaps the court didn’t take the statement at face value or thought that it really wasn’t a comment left by the mother. Perhaps the differing results can be explained on the basis that Domville was a criminal case. Another possible explanation is that Florida had an ethics advisory opinion that directly addressed the issue.
Judge’s Facebook Friendship With Victim’s Parent Does not Taint Proceeding — Youkers v. Texas
Is Recusal Required When a Judge is Facebook “Friends” With a Prosecutor? Question Certified to Florida Supreme Court — Domville v. State
Florida Judge Disqualified Over Facebook Friendship With Prosecutor.
Is the Florida Bar Taking Facebook Friendship Too Seriously?
San Diego County Bar Tackles Lawyer Friend Requests and the Ex Parte Rule
South Dakota S.Ct Recognizes the Obvious: a Happy Birthday Message on Facebook Doesn’t Mean Much — Onnen v. Sioux Falls Independent School Dist.
Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts
Engaging Facebook Friends Doesn’t Violate Non-Solicitation Clause–Invidia v. DiFonzo
[image credit: Shutterstock/virinaflora: “best friends“]