Facebook “Friends,” Judges and Disqualification

As Wikipedia notes, judicial disqualification “refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official”.   

This post is about a case in which a criminal defendant sought to disqualify the judge who had been assigned to his case.  Domville v. State, __ So.3d __, 2012 WL 3826764 (Florida Court of Appeals 2012).

The defendant is Pierre Domville, and I do not know what he is charged with.  But the case is pending in Broward County, Florida and Domville, as noted above, moved to disqualify the judge assigned to the case.  Domville v. State, supra.  As the opinion explains, the

motion was supported by an affidavit averring that the prosecutor handling the case and the trial judge are Facebook `friends.’ This relationship caused Domville to believe that the judge could not `be fair and impartial.’

Domville explained that he was a Facebook user and that his `friends’ consisted `only of [his] closest friends and associates, persons whom [he] could not perceive with anything but favor, loyalty and partiality.’ The affidavit attributed adverse rulings to the judge's Facebook relationship with the prosecutor. 

Domville v. State, supra. 

The trial judge “denied the motion as `legally insufficient’”, so Domville appealed.  Domville v. State, supra.  Under Florida Rules of Judicial Administration Rule 2.330(d), the grounds for disqualifying a Florida county or circuit court judge are

(1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or

(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

Florida Rules of Judicial Administration Rule 2.330(d).

Under Rule 2.330(f), the judge against whom a “motion to disqualify . . . is directed” must determine the “legal sufficiency of the motion”, but is not to decide the “truth of the facts alleged” in the motion.  If the judge finds the motion is legally sufficient, he/she must enter an order granting disqualification; if the judge finds the motion is legally insufficient, he/she is to enter an order denying the motion to disqualify him/her. Florida Rules of Judicial Administration Rule 2.330(f).

The Court of Appeals began its analysis of Domville’s effort to disqualify the judge in his case under the above standard by noting that in “determining the legal sufficiency of a motion to disqualify” a judge, it “reviews the motion's allegations under a de novo standard.”  Domville v. State, supra.  As Wikipedia notes, de novo review means that the Court of Appeals approaches the matter as if it

were considering the question for the first time. Legal decisions of a lower court on questions of law are reviewed using this standard. . . . It allows the appeals court to substitute its own judgment about whether the lower court correctly applied the law.

Domville v. State, supra. 

The Court of Appeals explained that a

motion is legally sufficient if `”the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.’” Brofman v. Fla. Hearing Care Ctr., Inc., 703 So.2d 1191 (Florida Court of Appeals 1997). 

A mere `subjective fear[ ] of bias will not be legally sufficient; rather, the fear must be objectively reasonable. Fischer v. Knuck, 497 So.2d 240 (Florida Supreme Court 1986).

Domville v. State, supra. 

The court noted that, in analyzing Domville’s motion, it found an opinion from the

Judicial Ethics Advisory Committee [“JEAC”] instructive. See Fla. JEAC Op.2009–20 (Nov. 17, 2009). There, the Committee concluded that the Florida Code of Judicial Conduct precludes a judge from both adding lawyers who appear before the judge as `friends’ on a social networking site and allowing such lawyers to add the judge as their `friend.’

The Committee determined that a judge's listing of a lawyer as a `friend’ on the judge's social networking page -- `[t]o the extent that such identification is available for any other person to view’ -- would violate Florida Code of Judicial Conduct Canon 2B (`A judge shall not ... convey or permit others to convey the impression that they are in a special position to influence the judge.’)

Domville v. State, supra. 

In the opinion noted above, the JEAC found that  

three elements are necessary in order to fall within the prohibition of Canon 2B:

1. The judge must establish the social networking page.

2. The site must afford the judge the right to accept or reject contacts or `friends’ on the judge's page, or denominate the judge as a `friend’ on another member's page.

3. The identity of the `friends’ or contacts selected by the judge, and the judge's having denominated himself or herself as a `friend’ on another's page must then be communicated to others.

Fla. JEAC Op.2009–20 (Nov. 17, 2009). 

In the opinion, the JEAC also noted that the third element is “typically” fulfilled

because each of a judge's `friends’ may see on the judge's page who the judge's other `friends’ are. Similarly, all `friends’ of another user may see that the judge is also a `friend’ of that user. 

It is this selection and communication process . . . that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.

Fla. JEAC Op.2009–20 (Nov. 17, 2009). 

The JEAC found that “when a judge lists a lawyer who appears before him as a `friend’ on his social networking page this `reasonably conveys to others the impression that these lawyer `”friends”’ are in a special position to influence the judge.” Domville v. State, supra (quoting Fla. JEAC Op.2009–20).  

 It also found that the issue is not

whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a `friend on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

Fla. JEAC Op.2009–20.

The Court of Appeals explained that,

as the [JEAC] recognized, a judge's activity on a social networking site may undermine confidence in the judge's neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality.

Domville v. State, supra. 

 It also noted that the Commentary to Florida Code of Judicial Conduct Canon 2A “necessarily limits a judge's personal freedom” because it requires that a judge “`avoid all impropriety and the appearance of impropriety.’” Domville v. State, supra.  Under Canon 2A, a judge “must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”  Commentary to Florida Code of Judicial Conduct Canon 2A.

The Court of Appeals therefore found that

[b]ecause Domville has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial, we quash the order denying disqualification of the trial judge and remand to the circuit court for further proceedings consistent with this opinion.

Domville v. State, supra. 

(For a short New York Times article on prohibiting judges from “friending” lawyers, in which one expert says the JEAC was being “hypersensitive”, possibly due to a “generational gap”, check out this link.)