Florida Supreme Court reviews appellate ruling over judicial social media use

Court reviews judge's decision to not recuse herself over Facebook friendship


MIAMI-DADE, Fla. – Are your Facebook friends your real-life friends? Every personal profile user can have a maximum of 5,000 connections. Are all of those connections characterized by loyalty? Those are some of the questions that the Florida Supreme Court will be looking at in a hotly contested case. 

North Miami attorney Reuven Herssein's fight over Miami-Dade Judge Beatrice Butchko's Facebook friendship with Coral Gables attorney Israel Reyes, a former Miami-Dade judge, is now before the Florida Supreme Court.

The conflict started with a 2015 contractual dispute between Herssein and his former client, the United Services Automobile Association. Herssein is representing his firm. Butchko was presiding over the case when Reyes was representing a USAA employee.

When Herssein cried foul earlier this year, he relied on an 8-year-old Florida Supreme Court committee's ethics opinion.

"Listing lawyers who may appear before the judge as friends on a judge’s social networking page reasonably conveys to others the impression that these lawyer friends are in a special position to influence the judge," the committee wrote in the Nov. 17, 2009 opinion.

The case shed light on the potential ethical issues arising around the world over the impact of judges' interactions on new media. In the United States, each state has different guidelines. Florida law is still unsettled and is at the heart of the appellate battle.

Attorneys face differences by district. The 1st and the 2nd districts haven't ruled on the issue. The 3rd District ruled Facebook friendships are irrelevant when measuring closeness. The Fourth District considers Facebook friendships relevant and the 5th District could go either way. 

Miami-Dade County Circuit Judge Beatrice Butchko
Miami-Dade County Circuit Judge Beatrice Butchko

In 2012, the 4th District, which has jurisdiction over Broward, Palm Beach, Martin, St. Lucie, Okeechobee and Indian River counties, based the Domville v. State opinion on the committee's 2009 opinion.

"Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality," the judges wrote

Herssein cited the 4th District's opinion when he argued Butchko should have recused herself the minute Reyes walked in, because they were Facebook friends and this could create an appearance of impartiality. 

Israel U. Reyes
Israel U. Reyes

Trouble is that in 2014, the 5th District, which has jurisdiction over the Lake, Marion, Sumter, Citrus and Hernando counties, and the 9th, the 7th and 18th circuits, defined the Facebook term "friend" as a "term of art."

"A Facebook friendship does not necessarily signify the existence of a close relationship ... particularly in smaller counties, where everyone in the legal community knows each other," the judges wrote

Earlier this year, the 3rd District, which has jurisdiction over cases in Miami-Dade and Monroe counties, also disagreed with the 4th District and the 2009 Supreme Court opinion, because both ignored the current use of data mining and networking algorithms. 

Reuven T. Herssein
Reuven T. Herssein

Aside from revolutionizing marketing and security systems, applied mathematics has also changed the way social media users build personal and professional networks. LinkedIn's "people you may know" feature, or Facebook's suggested friends option have changed users' behavior. 

The court decided the advances have allowed for connections that probably have "nothing to do with close or intimate friendships of the sort that would require recusal."

Herssein challenged the 3rd District's ruling, because it conflicts with the principle that judges should be held to a higher standard. This is the foundation for the Florida Supreme Court's code of conduct, the ethics opinions, and the 2014 decision of the 4th District.

The Florida Supreme Court justices took up the case on Monday and are reviewing the 3rd District's August decision.

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