Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association, 111518 FLSC, SC17-1848

Docket Nº:SC17-1848
Opinion Judge:CANADY, C.J.
Party Name:LAW OFFICES OF HERSSEIN AND HERSSEIN, P.A., etc., et al., Petitioners, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent.
Attorney:Reuven T. Herssein of Herssein Law Group, North Miami, Florida; and Maury L. Udell of Beighley, Myrick, Udell & Lynne, P.A., Miami, Florida, for Petitioners Suzanne Youmans Labrit, Frank A. Zacherl, and Amy M. Wessel of Shutts & Bowen, LLP, Tampa, Florida, for Respondent Christina Paylan, St. Pet...
Judge Panel:POLSTON, LABARGA, and LAWSON, JJ., concur. LABARGA, J., concurs with an opinion PARIENTE, J., dissents with an opinion, in which LEWIS and QUINCE, JJ., concur. LABARGA, J., concurring. PARIENTE, J., dissenting. LEWIS and QUINCE, JJ., concur.
Case Date:November 15, 2018
Court:Supreme Court of Florida
 
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LAW OFFICES OF HERSSEIN AND HERSSEIN, P.A., etc., et al., Petitioners,

v.

UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent.

No. SC17-1848

Supreme Court of Florida

November 15, 2018

NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO FILE A REHEARING/CLARIFICATION MOTION AND, IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions Third District - Case No. 3D17-1421(Miami-Dade County)

Reuven T. Herssein of Herssein Law Group, North Miami, Florida; and Maury L. Udell of Beighley, Myrick, Udell & Lynne, P.A., Miami, Florida, for Petitioners

Suzanne Youmans Labrit, Frank A. Zacherl, and Amy M. Wessel of Shutts & Bowen, LLP, Tampa, Florida, for Respondent

Christina Paylan, St. Pete Beach, Florida, for Amicus Curiae Christina Paylan, M.D.

CANADY, C.J.

In this case, we consider an issue regarding the legal sufficiency of a motion to disqualify a trial court judge on the basis of a Facebook "friendship." This Court granted jurisdiction to review the decision of the Third District Court of Appeal in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass'n, 229 So.3d 408 (Fla. 3d DCA 2017), which held that the existence of a Facebook "friendship" was not a sufficient basis for disqualification and which expressly and directly conflicts with the decision of the Fourth District Court of Appeal in Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We hold that an allegation that a trial judge is a Facebook "friend" with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. We therefore approve the decision of the Third District in Herssein and disapprove the decision of the Fourth District in Domville on the conflict issue.[1]

BACKGROUND

In the case on review, the Law Offices of Herssein and Herssein, P.A., and attorney Reuven Herssein "filed a motion to disqualify the trial judge." Herssein, 229 So.3d at 409. After the trial judge denied the disqualification motion as legally insufficient, the Herssein Firm and attorney Herssein "petition[ed the Third District] for a writ of prohibition to disqualify the trial court judge." Id. On review of the petition, the Third District explained the basis for the motion to disqualify that is relevant here: The motion [to disqualify] is based in part on the fact that [Israel] Reyes[-an attorney appearing before the trial judge on behalf of a potential witness and potential party in the pending litigation-]is listed as a "friend" on the trial judge's personal Facebook page. In support of the motion, Iris J. Herssein and Reuven Herssein, president and vice president of the Herssein Firm, signed affidavits in which they swore, "[b]ecause [the trial judge] is Facebook friends with Reyes, [the executive's] personal attorney, I have a well-grounded fear of not receiving a fair and impartial trial. Further, based on [the trial judge] being Facebook friends with Reyes, I . . . believe that Reyes, [the executive's] lawyer has influenced [the trial judge]."

Id. (some alterations in original).

The Third District expressly acknowledged that "Petitioners raise[d] three grounds" for disqualification on review. Id. But the Third District "wr[ote] only to address the petitioners' argument that the trial court judge should be disqualified because the judge is a Facebook 'friend' with a lawyer representing a potential witness and potential party in the pending litigation." Id. The Third District framed the issue as "whether a reasonably prudent person would fear that he or she could not get a fair and impartial trial because the judge is a Facebook friend with a lawyer who represents a potential witness and party to the lawsuit." Id.

At the outset, the Third District cited authority from this Court and the First District Court of Appeal supporting the longstanding general principle of law that an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. Id. at 409-10 (citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1338 (Fla. 1990); Smith v. Santa Rosa Island Auth., 729 So.2d 944, 946 (Fla. 1st DCA 1998)).

The Third District acknowledged that "this authority does not foreclose the possibility that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification." Id. at 410. The Third District noted that the Fourth District in Domville "held that recusal was required when a judge was a Facebook 'friend' with the prosecutor" based on "a 2009 Judicial Ethics Advisory Committee Opinion." Id. (citing Fla. JEAC Op. 2009-20 (Nov. 17, 2009)). The Florida Judicial Ethics Advisory Committee ("JEAC") advised in its 2009 opinion that judges were prohibited from adding lawyers who appear before them as "friends" on their Facebook pages or from allowing lawyers who appear before them to add them as "friends" on the lawyers' Facebook pages based on the JEAC's conclusion that "a judge's selection of Facebook 'friends' necessarily 'conveys or permits others to convey the impression that they are in a special position to influence the judge'" in violation of Canon 2B of the Florida Code of Judicial Conduct. Id. at 412 (quoting Fla. JEAC Op. 2009-20 (Nov. 17, 2009)). In support of its conclusion, the JEAC zeroed in on the "selection and communication process" of Facebook "friendship." Id. at 410 (quoting Fla. JEAC Op. 2009-20 (Nov. 17, 2009)). The JEAC reaffirmed its advice in 2010. Id. (citing Fla. JEAC Op. 2010-06 (Mar. 26, 2010)).

The Third District went on to explain that the Fifth District in Chace v. Loisel, 170 So.3d 802 (Fla. 5th DCA 2014), subsequently "signaled disagreement" with Domville. Herssein, 229 So.3d at 410. Chace expressed "serious reservations about the court's rationale in Domville" in part because "[a] Facebook friendship does not necessarily signify the existence of a close relationship." Id. (quoting Chace, 170 So.3d at 803-04).

The Third District agreed with Chace on this point for three reasons. Id. at 411. "First, as the Kentucky Supreme Court noted, 'some people have thousands of Facebook "friends." '" Id. (quoting Sluss v. Commonwealth, 381 S.W.3d 215, 222 (Ky. 2012)). "Second, Facebook members often cannot recall every person they have accepted as 'friends' or who have accepted them as 'friends.'" Id. And "[t]hird, many Facebook 'friends' are selected based upon Facebook's data-mining technology [suggestions] rather than personal interactions." Id. Thus the Third District concluded that "a 'friend' on a social networking website is not necessarily a friend in the traditional sense of the word[-i.e., a person attached to another person by feelings of affection or personal regard]." Id. at 412. The Third District further concluded that "[a]n assumption that all Facebook 'friends' rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking." Id.

The Third District ultimately "h[eld] that the mere fact that a judge is a Facebook 'friend' with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook 'friend.'" Id. Accordingly, the Third District denied the petition for writ of prohibition. Id. The Third District acknowledged that its holding was "in conflict" with Domville but did not certify conflict. Id.

ANALYSIS

The conflict issue presents a pure question of law that is subject to de novo review. See Daniels v. State, 121 So.3d 409, 413 (Fla. 2013). In considering this question of law, we first discuss the general standard governing disqualification and review the case law addressing the specific issue of judicial disqualifications based on a friendship relationship. We then apply the established principles of law to the context of Facebook "friendships." Finally, we explain that our conclusion that Facebook "friendship," standing alone, is insufficient to warrant disqualification is consistent with the majority view in the other states.

A. Legal Standard for Disqualification

"A motion to disqualify is governed substantively by section 38.10, Florida Statutes . . . and procedurally by Florida Rule of Judicial Administration 2.330." Gregory v. State, 118 So.3d 770, 778 (Fla. 2013) (quoting Gore v. State, 964 So.2d 1257, 1268 (Fla. 2007)). "The statute requires that the moving party file an affidavit in good faith 'stating fear that he or she will...

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