Divorce Judge Must Recuse Himself After Posting Instagram Photos of Himself with Attorney
Tennessee case summary on a judge’s recusal in divorce.
In 2015, the husband and wife in this Tennessee case met with an attorney to discuss ending their marriage. After the meeting, the attorney, acting as the attorney for the husband, sent the husband a marital termination agreement. As they had discussed, the agreement called for the agreement to be filed in another county, not the one in which they resided.
The attorney filed the agreement, but the wife later obtained another attorney and sought to retract her answer. Without talking to her attorney, the wife also decided to do some online research about the judge. She found his Instagram account, and requested to “follow” the account. This request was immediately accepted, and she began browsing the pictures contained in the account. Among the pictures were ones of the judge and the husband’s attorney at a football game, where they were drinking beer near a concession stand. The wife made a screenshot of these pictures, and they were deleted a few hours later. She also discovered that the judge had formerly worked for the husband’s lawyer.
The wife informed her attorney, who made a motion asking the judge to recuse himself. After the motion was filed, the judge held a conference call with the attorneys when he stated that a similar motion had been made in a criminal case which he had denied. He also pointed out that in that case, he felt obliged to lodge a complaint against the lawyer.
The trial judge denied the motion, and the wife appealed to the Tennessee Court of Appeals. The appeals court first noted that there was no actual bias by the judge, and that the only issue was the appearance of bias. The appeals court also agreed that a mere friendship between a judge and a lawyer does not warrant recusal.
Instead, the appeals court focused on whether the depiction of that friendship on social media would lead a reasonable person to question the judge’s impartiality. It noted that the Tennessee Judicial Ethics Committee had issued an opinion discussing the issue of the extent to which judges may participate in social media. That opinion had stressed that judges must use caution, since it was likely that the accounts would be scrutinized by others.
In this case, the appeals court noted that the judge had affirmatively allowed the wife to “follow” his account, and that by allowing her to see the photos, a reasonable person might question his impartiality. Effectively, his action of accepting the request initiated a prohibited ex parte contact.
For these reasons, the Court of Appeals reversed the lower court, and ordered the recusal of the judge.
No. E2016-01476-COA-T10B-CV (Tenn. Ct. App. Aug. 26, 2016).
See original opinion for exact language. Legal citations omitted.
To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.