Given today’s interconnected world, it is bound to happen that a judge might end up Facebook friends with a litigant. It might also happen that the judge hearing your case is friends with you or your opponent. With this increasingly common reality, there are calls for judges who happen to be “friends” with a litigant to recuse themselves from hearing the case. The fear is that judges might be engaging in ex parte communications with a single party to the case.
Ex parte communications involve a judge communicating with a litigant about the case outside of the presence of the other party to the case. This is unfair to the absent party and usually leads to calls for the judge to recuse him or herself from the case. Recusal happens when a judge decides to withdraw from hearing a case due to a conflict or perceived inability to preside impartially. Judges are usually able to make their own call as to whether they want to recuse themselves, subject to later review by a higher court. In Pennsylvania, appellate courts review a trial judge’s decision to remain on a case for an abuse of the judge’s discretion. This already deferential standard is further tempered by the default rule that judges are generally regarded as honorable, fair, and competent. Thus, it falls on the party requesting the judge’s recusal to prove that the judge cannot serve fairly. Absent strong evidence from the party requesting recusal, the judge typically does not need to recuse himself or herself.
Other than questioning impartiality or potential conflicts, judges themselves have little guidance on whether to recuse in a given case—the choice is usually up to their professional judgment. The code of judicial conduct serves as the main source for judicial conduct standards. But the only guidance these rules provide concerning the issue is that judges should avoid any “appearance of impropriety” or actions that might compromise their integrity or impartiality. These are intentionally vague and broad standards. The standards do, however, serve an important purpose. Maintaining an independent judiciary ensures that litigants get a fair shot at presenting their case for an impartial and disinterested review. Access to the judge via “friendship” with one litigant but not the other interferes with this valued independence and appearance of impropriety.
Arguably, the ambiguous and broad standard does fail to account for many modern technological developments. Judges are humans—as such, they would like to be able to interact with others on Facebook and other social media platforms. In many cases, the careful scrutiny and constant exercise of caution when they choose to post something on social media drives judges away from social media altogether. Many judges choose to avoid it for potential conflicts or the appearance of impropriety.
For those judges choosing not to forego the Facebook account, it is almost inevitable that the judge will end up with some Facebook friends that will appear in their courtroom. This phenomenon has received mixed reviews from appellate courts across the country for how to handle requests from litigants that the judge opt to recuse. Courts in Pennsylvania are generally dismissive of the idea that a Facebook friendship with one of the parties to litigation, without more, is enough to justify recusal. While there is no binding authority on the issue yet, it appears that the trend in Pennsylvania courts follows Florida’s approach.
The Florida Supreme Court recently addressed this issue in a divided opinion with the majority applying a conditional test for whether the “friend” designation on Facebook was actually indicative of a close relationship of the judge in question with one of the litigants. The court recognized that anyone on social media may have hundreds or even thousands of “friends” that they may not even know or talk to, and that judges are no different. Without any kind of close relationship to back up the “friend” designation, there is no harm to a judge’s impartial decision-making or any kind of conflict sufficient to justify removing the judge from the case. If the litigant seeking removal could prove that the judge actually had a close relationship with the litigant at issue, then that could be grounds for removal.
The dissent echoed certain other states’ positions that judges should refrain from engaging with social media altogether. They argue that any kind of ex-parte interaction or connection between a judge and litigant—especially a Facebook friend designation—creates the appearance of impropriety or unfairness that would justify the judge recusing himself or herself from the case. The safe bet is for judges to avoid social media altogether, but for those who do not, it appears as though Pennsylvania trends toward the more deferential approach for judges.
Without some type of close or actual relationship between the judge and the litigant in question, a “friend” designation on Facebook likely will not hurt the judge’s ability to serve impartially. While the caselaw on the recusal issue typically deals with Facebook, it is possible to make similar arguments for other social media platforms as well. Linkedin, Instagram, Snapchat, and Twitter, among others, may be the next areas to come under suspicion. If you suspect your opponent is favored by the judge presiding over your case due to a social media connection, it may be worth an inquiry into whether there exist grounds to move for recusal. This investigation could prove fruitless, however, if the Facebook or other social media relationship is inconsequential or superficial.
With contribution from Sarah Rothermel, J.D. Widener Law Commonwealth.