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Judges' Use of Social Media Before SCOTUS in Cert. Petition

By William Peacock, Esq. | Last updated on

If a judge follows you on Twitter, must he recuse himself from any future cases where you are a party or an attorney? Surely reading tweets doesn't amount to an appearance of bias.

What about a LinkedIn connection? It is, after all, the "professional" social network.

Or what about Facebook? Of all the social networks, it is the most informal. Friendship gives you access to photos, wall postings, and other non-public information. If a judge is Facebook friends with a litigant, or an attorney, does that mandate recusal?

We've discussed the issue before, and have seen it pop up in state cases, but this petition for certiorari, set for consideration on April 25, asks the U.S. Supreme Court to set a nationwide standard for social media and the appearance of impropriety. It's a tall order for a Court that still uses ivory paper instead of email.

Convoluted Case

The facts of this case are pretty unremarkable. Barbara McDermott owned property as a joint tenant with her late mother. Her mother had previously given a consideration-free purchase option on one of the properties to a real estate investor and property manager in North Dakota, Kevin Pifer. The dispute was whether the gratuitous option survived the death of the grantor, and whether the earlier option or the later joint tenancy controlled. The North Dakota courts ruled in Pifer's favor.

It's a convoluted, confusing, and fact-ridden dispute, as well as a matter of state law. And if this case was all about property law, we'd forgive you if your eyes were glazing over. But this case got way more interesting when it reached the North Dakota Supreme Court.

A Biased Court?

On the first go-round to the state's highest court, Justice Daniel Crothers was listed as "disqualified." One year later, when the case made its second trip to the court, Justice Crothers penned the majority opinion, treating a gratuitous option identically to an option supported by consideration. The petition for certiorari alleges, "[u]pon information and belief, Justice Crothers was a partner at the Nilles Law Firm which previously served as Mr. Pifer's legal counsel."

That certainly appears fishy, and explains the initial disqualification. It also begs the question of why he didn't sit out the sequel. Pifer's reply brief argues that Justice Crothers may have sat out because of a toothache, or any other important business, but tooth pain doesn't usually lead to an opinion notating a judge as "disqualified."

Justice Crothers wasn't the only possibly biased justice, however. Justice Dale Sandstrom, who penned the first opinion and joined the second opinion, was, according to the petition, Facebook friends with the prevailing litigant, Mr. Pifer.

Appearance of Impropriety?

A possible prior attorney-client relationship or a present Facebook friendship: Which is worse? And does either demonstrate "impropriety [or] the appearance of impropriety?"

The case cited by the petition, Caperton v. A.T. Massey Coal Co., itself cites the ABA Annotated Model Code of Judicial Conduct [PDF], Canon 2 -- a standard which we've discussed many times in posts about judges and social media. The short version of the standard is this: If it looks bad enough to make a reasonable person think twice, the judge should probably step aside.

It's a vague and unsatisfying standard. As we noted before, "appearance of impropriety" is in the eye of the ticked-off litigant. An ABA Ethics opinion [PDF] on the matter basically tells judges to use common sense (such as not commenting on pending matters), which again, is far from a useful set of guidelines.

Where do you think the line should be drawn? Facebook? LinkedIn? Twitter? Any social media whatsoever? Feel free to tweet us your thoughts. We are, after all, not headed for the bench any time soon.

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