Can Judges and Lawyers Be Facebook “Friends”? It Depends Where You Are.

An attorney can be friends with a judge IRL (in real life). Now they can be Facebook friends too–at least in the Third District.

The Third District Court of Appeal, recognizing the evolving influence and role of social media in our society, has held that a judge should not be disqualified from a case for merely being Facebook “friends” with counsel for a party.

In Law Offices of Herssein and Herssein, P.A., v. United Services Automobile Association, 3D17-1421 (Fla. 3d DCA Aug. 23, 2017), the petitioners filed a writ of prohibition, seeking to disqualify the trial court judge because a potential witness and a potential defendant was listed on the judge’s personal Facebook page as a “friend.”

This issue has nearly a decade of history in Florida law.  In 2009, a Judicial Ethics Advisory Committee Opinion said that a judge may not add lawyers who may appear before him as “friends” on social networking sites, and vice versa.  In 2012, the Fourth District relied on the JEAC Opinion and granted a writ of prohibition, disqualifying a judge because he was Facebook “friends” with the prosecutor, Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Then, in 2014, the Fifth District granted a writ of prohibition because the trial judge “reached out” to a party in a dissolution case while litigation was pending and tried to “friend” her on Facebook.”  Chace v. Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014).  While clearly what the trial court did was wrong, and factually different than the issue in Domville, the Chace court went on to express “serious reservations about the court’s rationale in Domville.”  The Fifth District said that “there is no difference between a Facebook ‘friend’ and any other friendship a judge might have,” and that “Domville’s logic would require disqualification in cases involving an acquaintance of a judge.”  The Fifth District also noted that “A Facebook friendship does not necessarily signify the existence of a close relationship.”

This is the legal landscape in which the Third District decided Herssein.  Preliminarily, the court recognized that merely being “friends” in the conventional sense has been historically insufficient to warrant disqualification of a judge.  It then latched onto the Fifth District’s statement regarding the closeness of Facebook “friends,” applying this rationale for three reasons:

  • “Some people have thousands of Facebook ‘friends,'”
  • “Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends,'” and
  • “many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology rather than personal interactions.”

The Fifth District noted that Domville had been decided many years prior, in a quickly-evolving technological landscape–stated simply, times have changed.  It certified conflict with Domville, and denied the petition, holding that merely being Facebook “friends” with someone no longer demonstrates closeness of a relationship.

So where does that leave us practicing attorneys?

  • In the Third District, whether you are Facebook “friends” with a judge is irrelevant to whether your actual relationship is sufficiently close to warrant disqualification.  See Herssein.
  • In the Fourth District, being Facebook “friends” with a judge is sufficient on its own to warrant a disqualification.  See Domville.
  • The Fifth District’s dicta suggests it would side with the Third District, but it has issued nothing precedential upon which to rely.  See Chace.
  • Neither the First nor Second Districts have spoken on the issue.

Voluntary Dismissal Leads to (almost) Writ of Prohibition

The Third District recently confirmed that a trial court loses jurisdiction over the substance of a case once a plaintiff voluntarily dismisses under Rule 1.420(a)(1), and that with only one rare exception a Court cannot set aside such a dismissal. U.S. Bank N.A. v. Rivera, Case No. 3D15-1415 (Fla. 3d Dist. April
27, 2016) [.pdf].

The case has a complicated procedural history: The Bank initiated foreclosure in 2009, and served the defendants by publication, obtaining a default judgment. In 2011, the Bank sought to vacate and set aside that judgment, citing “irregularities in the actions taken by its former counsel,” and the Riveras, too, sought to relief from the judgment pursuant to Fla. R. Civ. P. 1.540. Id. at 2. In 2013, the trial court finally entered the Bank’s 1.540 motion to vacate the judgment, and shortly thereafter, the Bank voluntarily dismissed the foreclosure action. Id. at 3.

The Riveras, however, did not stop litigating. They moved to set aside the voluntary dismissal for fraud on the court, attempted to engage in discovery to uncover the fraud, and sought sanctions against the Bank for failing to comply with the discovery. The Bank eventually sought the instant writ of prohibition to stop the trial court from continuing to exercise jurisdiction over the dismissed case.

What is a Writ of Prohibition?

A writ of prohibition is not an appeal in the traditional sense. Rather, it is an action, on the original jurisdiction of the district court of appeal, “to prevent courts from acting when there is no jurisdiction to act.” Sutton v. State, 975 So. 2d 1073, 1076 (Fla. 2008); see also Fla. R. App. P. 9.030(b)(3). Here, seeking a writ of prohibition was the appropriate remedy, because the party contended that the trial court was continuing to act even though it lacked jurisdiction to do so.

Citing to the Florida Supreme Court’s decision in Pino v. Bank of New York, 121 So. 3d 23 (Fla. 2013), the Court ruled that the Rivera’s attempts to secure a dismissal with prejudice were not authorized by Rule 1.540. Specifically, the Court explained that “a trial court has neither the authority under rule 1.540 nor the inherent authority to grant relief from a voluntary dismissal where fraud on the court is alleged but no affirmative relief has been granted to the dismissing plaintiff.” Id. at 4-5.

Interestingly, the appellate court stopped just shy of actually issuing the writ of prohibition. When initiating a writ of prohibition, the rules require that the petitioner name the judge or lower tribunal as a “formal party to the petition” in the body of the petition, but not add the judge’s name to the caption. Fla. R. App. P. 9.100(e). The opinion ruled in favor of the petitioner, but the court stated that it would “withhold issuance of this court’s writ confident that the court below will refrain from further action in this matter.” In other words, the Court did not want to embarrass the trial judge, but ordered him or her to stop taking action in the case.

Magistrates, Reconsideration, and Writs, Oh My!

Every once in a while a case comes along that is just a treasure trove of procedural goodness. It’s even nicer when you happen to know the prevailing party, and know the rules as applied helped the good guys. The case is Seigler v. Bell, Case No. 5D14-642 (Fla. 5th DCA Sept. 19, 2014)[.pdf]. The underlying dispute is a complicated child custody battle between a Mother and Grandmother. While there is no need to go into the nitty gritty of the underlying facts of the dispute, the decision today provides great insight into several issues of broad application: (a) The role of magistrates in proceedings before a trial court, (b) the important differences between rehearing and reconsideration at the trial court level, and (c) jurisdiction over writs of certiorari and mandamus. Let’s unpack each in turn.

Magistrates and Finality

The opinion lays out in detail the legal and procedural effect of an issue being heard by a magistrate. Most importantly:

While a magistrate’s report is more than a mere recommendation, it is not a final judgment, as magistrates lack the authority to enter final judgments….Even when no exceptions are filed, the trial court is “duty bound to examine and consider the evidence for itself and to make a judicial determination as to whether[,] under the law and facts[,] the court is justified in entering the judgment recommended” by the magistrate…. Merely “approving” the magistrate’s report is not sufficient to effect an appealable final judgment.

Slip. Op. at 7-8, citations omitted. In this case, both parties did file exceptions, and the trial court ruled on them, but the effect of that ruling was not a final judgment. The trial court rejected one party’s exceptions and accepted some of the other party’s exceptions, but the resulting order on the recommendation merely stated “the Report … is hereby modified….” Because the trial court “modified” the magistrate’s report but did not enter judgment, the order modifying the report (“the Modification Order”) was not a final order.

Rehearing v. Reconsideration

Whether the Modification Order was a final order is important in this case, because it is determinative of the next issue the appellate court decided — whether the Grandmother’s “Motion for Rehearing or Reconsideration” (the “Reconsideration Motion”) was timely and authorized. The Mother’s Petition sought review of the trial court’s order granting the Motion for Rehearing or Reconsideration. The Reconsideration Motion was filed 12 days after the trial court entered its order modifying the magistrate’s report and recommendation. If the Modification Order had been a final judgment, then it would be subject to a Rule 1.530 motion for rehearing. But then the Reconsideration Order would have been untimely, because at the time Rule 1.530 required that a motion for rehearing be served no later than 10 days after entry of judgment. (The rule was since amended to allow 15 days for service of a motion for rehearing).

The Court held that since the Modification Order was not a final order, the trial court had the inherent power to reconsider its interlocutory order at any time. Op. at 9. The court explained:

Motions for rehearing and motions for reconsideration are two distinct motions and, though they are often confused, they do not overlap. Motions for “rehearing” pursuant to Florida Rule of Civil Procedure 1.530 apply only to final judgments and “those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.” Motions for “reconsideration” apply to nonfinal, interlocutory orders, and are based on a trial court’s “inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action . . . .” … Nomenclature does not control, and motions for either “rehearing” or “reconsideration” aimed at final judgments shall be treated as rule 1.530 motions for rehearing, while motions aimed at nonfinal orders shall
be treated as motions for reconsideration.

Op. at 9-10, citations omitted. The Court also emphasized that the trial court had the power to sua sponte reconsider its own interlocutory orders. Op. at 10.

Certiorari, Mandamus, and Appealable Non-Final Orders

Because the Court had the power to reconsider its interlocutory order, the next question it considered was whether the order granting reconsideration in the Grandmother’s favor (“the Reconsideration Order”) was an appealable order. The Court didn’t even look at whether the Reconsideration Order was a final order, because it left open further proceedings and still did not take on the tenor of a judgment of the Court.

The Court considered but rejected the argument that the Reconsideration Order could be classified as an appealable nonfinal order under Rule 9.130(a)(3)(C)(iii), which allows for immediate appeal of orders determining the right to child custody in family law matters. It is not clear whether the Mother made this argument, but the Court did the right thing in considering it in any event, because Rule 9.040(c) allows that “if a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.” Fla. R. App. P. 9.040(c). However, the Court concluded that the order does not determine the right to custody, but “merely indicates that more evidence will be considered before the trial court determines Mother’s motion to revoke the prior temporary custody order.” Op. at 10. It’s a decision to take more evidence, not a determination of custody, and therefore not an appealable interlocutory order.

The court also considered whether the Mother’s Petition entitled her to the relief requested, certiorari or mandamus relief. Both certioari and mandamus are extraordinary appellate remedies, because they allow the appellate court to step in and rule on the propriety of an interlocutory order. The Court dismissed the Petition for Writ of Certiorari for lack of jurisdiction and denied the Petition for Writ of Mandamus.

The Mother argued in favor of certiorari review because, based on her view that the Rehearing Motion was untimely, the trial court was without jurisdiction to entertain it. The Court set out the standard test for certiorari relief:

“To obtain relief by way of a writ of certiorari, a petitioner must establish: 1) a departure from the essential requirements of the law, 2) a resulting material injury for the remainder of the trial, and 3) the lack of an adequate remedy on appeal.”… The second and third prongs of this three-part standard of review are often combined into the concept of “irreparable harm,” and they are jurisdictional.

Applying this test — and its prior procedural analysis that the trial court had the power to reconsider the Modification Order and enter the Reconsideration Order — the Court found that the Reconsideration Order neither departed from the essential requirements of law or caused irreparable harm. The Court therefore held that it lacked jurisdiction to grant the requested certiorari relief.

The request for mandamus relief likely asked the Court to order the trial court to enter final judgment on the Modification Order. As the Court explained:

“Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law.” … “To state a cause of action for mandamus, a party must allege a clear legal right to performance of the act requested, an indisputable legal duty, and the lack of an adequate remedy at law.”

Op. at 11 (citations omitted). In this case, because the trial court had the power to reconsider its own interlocutory order, the Mother could not prove she was entitled to compel the trial court to enforce an established legal right to entry of judgment in her favor. The Court therefore denied the petition for writ of mandamus.

Kudos

Congratulations again to my friend Vicki Levin Eskin of Levy & Associates, P.A. for her appellate win! Vicki represents the Grandmother in this case pro bono, to boot (that means free, folks).

Full Disclosure: I assisted Vicki pro bono in responding to the appellate motion for rehearing or rehearing en banc filed by the other side. I am pleased to report that the court denied rehearing today, so the decision is now final.