Just a little over a year ago, the American Bar Association (“the ABA”) issued a set of instructions regarding judges’ use of social networking sites. Now, the consequences of violating these rules have been brought to bear on one particular judge —and serve as a cautionary tale for the many other judges who have a social media presence.
Judge Linda D. Schoonover (“the Trial Judge”), a Seminole Circuit Judge for the 18th Judicial Circuit (“the Trial Court”), is at the center of a dispute concerning her questionable use of Facebook during a dissolution of marriage case. While presiding over the action Sandra Chace v. Robert Loisel, Jr., the Trial Judge sent Sandra Chase, the petitioner in the action who was seeking a divorce from her husband (“the Petitioner”), a Facebook “friend” request—a move that came before the Trial Judge’s entry of final judgment.
Upon the advice of her counsel, the Petitioner declined the request. Shortly thereafter, the Trial Judge entered a final judgment of dissolution, allegedly attributing most of the martial debt to the Petitioner and providing the Petitioner’s husband with a disproportionately excessive alimony award. The Petitioner subsequently learned of other cases involving similar ex parte social media communications that resulted in the judge’s disqualification, prompting the Petitioner to file a Motion to Disqualify the Trial Judge (“the Motion”) on the grounds that the Petitioner did not receive a partial trial.
A hearing was held on the Motion, and the Motion was denied as legally insufficient. As a result, the Petitioner filed a Petition for Writ of Prohibition with the Fifth District Court of Appeal (“the Fifth District” or “the Court”)—a legal document issued by the appeals court to a judge presiding over a suit in an inferior court when it is deemed that the inferior court is acting outside of the normal rules and procedures in the examination of a case. In this action, the Fifth District concluded that the Trial Court erred in denying the Petitioner’s Motion, arguing that the Trial Judge should have disqualified herself.
“It seems clear that a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook ‘friend’ request creates a reasonable fear of offending the solicitor… 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 Fifth District wrote in its opinion filed on January 24, 2014 (“the Opinion”).
The Fifth Circuit determined that in “friending” the Petitioner, the Trial Judge violated judicial rules governing communications with parties to an action, in the process violating the all-important standard of neutrality.
“The trial judge’s efforts to initiate ex parte communications with a litigant is [sic] prohibited by the Code of Judicial Conduct and have the ability to undermine the confidence in a judge’s neutrality. The appearance of partiality must be avoided. It is incumbent upon judges to place boundaries on their conduct in order to avoid situations such as the one presented in this case,” the Opinion states.
Ultimately, the Fifth Circuit quashed the order denying the Motion, and remanded the action to the Trial Court, mandating that the Trial Judge be removed from the action.
The Opinion is significant not only in terms of its implications for the parties in this action, but in terms of the broader implications that social media-related issues like this will have for an industry that has been slow to adapt to the digital age. Last year, Balestriere Fariello was among the first to report on the ABA’s opinion that it issued—titled Formal Opinion 462 (“Opinion 462”)—regarding protocol that judges should follow when accessing social media.
Opinion 462 explicitly warned judges to “avoid comments and interactions on social networking sites that may be interpreted as communications regarding pending matters”—a rule which may have seemed abstract at the time, but seems to have become increasingly relevant and important as circumstances such as those surrounding this action arise.