Miami-Dade Circuit Judge Beatrice Butchko’s Facebook account is the subject of a pending dispute in Florida’s Third Circuit Court of Appeal. Judge Butchko is friends on the social media site with local lawyer Israel Reyes, which appellants argue should disqualify her from hearing any cases involving Reyes or his firm.
Florida was an early leader in setting out ethics guidelines for judges on social media, with a 2009 opinion that barred judges from adding lawyers who may appear before them as “friends” on any social networking site. Had Judge Butchko recently added Mr. Reyes as a friend, it would seem a clear violation of the ethics guideline.
But there is a twist in this case: Mr. Reyes was formerly a colleague on the state bench with Judge Butchko, and it was in that capacity that they connected on Facebook. Only when Mr. Reyes left the bench did the potential for him to appear before Judge Butchko ever become a possibility. And the ethics opinion is silent about removing friends from social media–as opposed to adding new ones.
Mr. Reyes is representing a non-party in the case before Judge Butchko, but the proper defendant in the case finds the entire disqualification motion absurd:
“No reasonably prudent Miami lawyer has a well-founded fear of not receiving a fair and impartial trial simply because two judges who sat on the bench in Miami-Dade County are ‘friends’ on Facebook,” wrote Shutts & Bowen attorneys Patrick Brugger and Frank Zacherl of Miami, who did not respond to a request for comment by deadline.
Judge Butchko could presumably resolve the issue quickly by dropping Mr. Reyes as a Facebook friend, so as to avoid any perception of partiality. Nothing would prevent her from maintaining a real friendship within professional limits. And that might be the best kind of friendship after all.
Three federal judges in Canada have been cleared of wrongdoing after they attended sponsored social events at an international tax conference in Spain. The Canadian Judicial Council concluded that concerns that the judges’ attendance compromised their impartiality were “unfounded.”
The judges themselves were more sanguine about the signal their attendance might have sent. Judge R.S. Bocock, for example, recused himself from a pending case involving one of the sponsors, even though he was unaware of the conflict at the time he attended the sponsored event. Bocock stated,
“I have reflected on this entire matter….The potential for a conflict of interest in this matter seems remote; however, through inadvertence, the portrayal of a potential conflict, where all the facts are at first unknown, is possible,” said Bocock, in a letter sent to the complainant.
“As such, there are consequences, costs, and reputational risks to the judge, the judiciary and the administration of justice as a whole. Prudence and best practice would suggest that, in future, refraining from attending such off site sponsored conference receptions is a better and wiser choice. I certainly intend to follow this prudent conduct in the future.”
Judges often have to straddle a line on social occasions so as to not appear to favoring a particular party or law firm. The appearance of impartiality is so important that most judges choose to avoid more social events than they rightfully should. But there is no easy solution. Justice Abe Fortas reportedly said that “Judging is a lonely job in which a man is, or near as may be, an island entire.” The phrasing is a bit stiff, but there is plainly some truth to the observation.
One by one, eight state trial judges have recused themselves from presiding over a criminal case against a former New Mexico state senator. Phil Griego was indicted in June on 22 counts, including perjury and embezzlement. Among other things, Griego is alleged to have spent funds from his re-election account after resigning from the state senate in March 2015.
None of the eight judges identified a specific reason for recusing themselves from the case, with each indicating only “good cause” for the recusal. The Santa Fe New Mexican reports:
Former state Supreme Court Justice Patricio Serna said one factor in the decision by so many Santa Fe judges to recuse themselves from Griego’s case might have been their role lobbying legislators for court funding.
If the need to obtain court funds from the legislature compromises judges to this extent, interdependence can become a danger to the administration of justice.
When Justice Steven Taylor recently retired from the Oklahoma Supreme Court, Governor Mary Fallin tapped 35-year-old Patrick Wyrick to fill his seat. Seats on the court are geographically distributed, and Wyrick was among three finalists from the state’s Second Judicial District whose names were submitted to the Governor for final consideration. The final nominees were chosen by the state’s Judicial Nomination Commission (JNC).
But now Justice Wyrick’s appointment is being challenged by the Oklahoma Chapter of the ACLU, on the grounds that he does not actually reside in the Second Judicial District. In preliminary arguments last week, Wyrick’s lawyer dismissed the challenge, asserting that the JNC’s selection of the three finalists is effectively unreviewable. The ACLU countered that no state entity, including the JNC, has all-powerful status.
The decision is now before the state supreme court itself, leaving the eight remaining justices to decide the fate of a potential colleague. The ACLU has further requested that any sitting justice who recommended Wyrick for a judicial position be recused from considering the case.
Certainly a fascinating example of court interdependence that bears watching.
U.S. Senator Jeff Flake (R-AZ) has introduced a bill (one of four currently in Congress) to split the Ninth Circuit Court of Appeals into two circuit courts. Apparently in response to reports that Ninth Circuit judges opposed the bill, Senator Flake asked the Ninth Circuit Executive for clarification on the court’s ability to rule fairly if the legislation were adopted and subsequently challenged. This week, Cathy Catterson, the Circuit Executive of the Ninth Circuit Court of Appeals, responded with an unqualified yes.
Given that bills to split the Ninth Circuit have been introduced many times since 1941, and have never gained serious traction, it is hard to see this as anything more than political posturing. But the regular recurrence of the proposal again illustrates the deep interdependence of the federal courts. Indeed, circuit reorganization is literally an existential issue, affecting active judgeships, resources, case assignments, precedent, and internal court dynamics. The judges naturally have an interest in the outcome, but they lack any direct say in it.
So let’s play out the hypothetical. Could the Ninth Circuit judges rule on the reorganization of their own court? And what would that look like? Continue reading “Could the Ninth Circuit rule on its own split?”