October 26, 2016
More than Just ‘Friends’: Facebook Friend Requests from Judges Constitute A Request to Engage in Improper Ex Parte Communication
Under a ruling recently passed by the Florida Fifth District Court of Appeal, judges must live up to a higher standard than most in respect to their interactions. A simple Facebook ‘friend’ request, while innocuous among members of the non-legal public, can merit a judge’s forced recusal from a case if sent from a judge to a party in a case.
In Chase v. Loisel, the court ruled to remove Judge Linda Schoonover from presiding over a divorce case during which she sent a friend request to one of the parties involved. Judge Schoonover sent the friend request to the wife in the husband-wife divorce proceeding; the wife declined to answer the friend request. The wife later filed a formal complaint that the judge “retaliated” against her for not accepting the request by giving her husband a “disproportionately excessive alimony award.” The court ruled that the judge must disqualify herself because the friend request was legally sufficient to create a well-founded fear that the wife would not receive a fair trial. By sending a Facebook friend request, Schoonover was soliciting the wife to participate in improper ex parte communication. The court ruled that the friend request would have caused the wife to have a “reasonable fear of offending” Schoonover for not accepting the request.
A simple Facebook ‘friend’ request, while innocuous among members of the non-legal public, can merit a judge’s forced recusal from a case if sent by the judge to a party in a case.
In the decision, the court distinguishes its reasoning from that in Domville v. State, a Florida Fourth District Court of Appeals case. In Domville, the court ruled that it was improper for a judge to engage in a Facebook ‘friendship’ with the prosecutor in a case over which the judge presided. The Chase court recognized that a Facebook ‘friendship’ does not correlate with close friendship in the real world, and that “requiring disqualification in such cases does not reflect the true nature of a Facebook friendship.”
The stark difference in consequences for a Facebook friend request among non-members of the legal profession versus judges is telling. Whereas in many workplaces it is common for employees to send and accept each other’s Facebook friend requests, judges are held to higher standards. Severe consequences exist for judges because of partiality concerns and evidentiary concerns, depending upon the intended recipient of the request. A request from a judge to a party in the case, asking the party to be ‘friends’ with him or her, implies an invitation towards partiality which should not be present. The Code of Judicial Conduct states that judges must be impartial. Furthermore, the quantity of personalized content on Facebook may cause a judge to be prejudiced against one or both parties in a case, if the judge accesses the content. In a divorce case, for example, if the judge views a picture of one of the parties on a date or acting raucously at a party outside of the evidence offered in the courtroom, this supplemental information may cause the judge to be prejudiced against a party.
Issues such as these will likely grow more prevalent as social-networking media grows in popularity. Judges and other members of the legal community will have to place appropriate boundaries on their conduct to separate their social networking from their legal responsibilities.