source: Caselaw Access Project

author: CANADY, C.J. LABARGA, J., concurring. PARIENTE, J., dissenting.

license: Public Domain

text:
    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
    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.

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 not receive a fair trial ... on account of the prejudice of the judge' as well as 'the facts and the reasons for the belief that any such bias or prejudice exists.' " Peterson v. State , 221 So.3d 571, 581 (Fla. 2017) (quoting § 38.10, Fla. Stat. (2014) ). The rule provides that "[t]he judge against whom an initial motion to disqualify ... is directed shall determine only the legal sufficiency of the motion and shall not pass on the truth of the facts alleged." Pasha v. State , 225 So.3d 688, 703 (Fla. 2017) (quoting Fla. R. Jud. Admin. 2.330(f) ). "The disqualification [statute and] rules are designed to keep the courts free from bias and prejudice." Tableau Fine Art Group, Inc. v. Jacoboni , 853 So.2d 299, 301 (Fla. 2003). "[T]he disqualification statute and rules are [also] designed to ensure confidence in the judicial system, 'as well as to prevent the disqualification process from being abused for the purposes of judge-shopping, delay, or some other reason not related to providing for the fairness and impartiality of the proceeding.' " Id. (quoting Livingston v. State , 441 So.2d 1083, 1086 (Fla. 1983) ).

"The standard of review of a trial judge's determination on a motion to disqualify is de novo." Parker v. State , 3 So.3d 974, 982 (Fla. 2009). "A motion to disqualify will be dismissed as legally insufficient if it fails to establish a well-grounded fear on the part of the movant that he will not receive a fair hearing." Braddy v. State , 111 So.3d 810, 833 (Fla. 2012) (quoting Correll v. State , 698 So.2d 522, 524 (Fla. 1997) ). "Whether the motion is legally sufficient is a question of law." Mansfield v. State , 911 So.2d 1160, 1170 (Fla. 2005). The standard for determining the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, "would place a reasonably prudent person in fear of not receiving a fair and impartial trial." MacKenzie , 565 So.2d at 1335 (quoting Livingston , 441 So.2d at 1087 ). "A mere 'subjective fear[ ]' of bias [or prejudice] will not be legally sufficient; rather, the fear must be objectively reasonable." Arbelaez v. State , 898 So.2d 25, 41 (Fla. 2005) (first alteration in original) (quoting Fischer v. Knuck , 497 So.2d 240, 242 (Fla. 1986) ).

B. Traditional "Friendship"

In the traditional sense, a "friend" is a person attached to another person by feelings of affection or esteem. See, e.g. , Webster's Third New International Dictionary 911 (1993 ed.) (defining the term "friend" as "one that seeks the society or welfare of another whom he holds in affection, respect, or esteem"); The American Heritage Dictionary 703 (5th ed. 2011) (defining the term "friend" as "[a] person whom one knows, likes, and trusts"); Shorter Oxford English Dictionary 1035 (6th ed. 2007) (defining the term "friend" as "[a] person joined by affection and intimacy to another").

But "friendship" in the traditional sense of the word does not necessarily signify a close relationship. It is commonly understood that friendship exists on a broad spectrum: some friendships are close and others are not. See, e.g. , Black's Law Dictionary 667 (6th ed. 1990) (defining the term "friend" as "[v]arying in degree from greatest intimacy to acquaintance more or less casual"); Black's Law Dictionary 600 (5th ed. 1979) (same); Black's Law Dictionary 795 (4th ed. 1951) (same); see also Clark v. Campbell , 82 N.H. 281, 133 A. 166, 170 (1926) ("Friendship is a word of broad and varied application."). Thus the mere existence of a friendship, in and of itself, does not inherently reveal the degree or intensity of the friendship.

It follows that the mere existence of a friendship between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are friends of an indeterminate nature. It is for this reason that Florida courts-including this Court-have long recognized the 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. See, e.g. , MacKenzie , 565 So.2d at 1338 ("There are countless factors which may cause some members of the community to think that a judge would be biased in favor of a litigant or counsel for a litigant, e.g., friendship, member of the same church or religious congregation, neighbors, former classmates or fraternity brothers. However, such allegations have been found legally insufficient when asserted in a motion for disqualification."); Ervin v. Collins , 85 So.2d 833, 833-34 (Fla. 1956) (allegations of friendship between three supreme court justices and the governor, who was a party, were "not sufficient to constitute a legal basis for disqualification"); Ball v. Yates , 158 Fla. 521, 29 So.2d 729, 735 (1946) (allegation of friendship between a supreme court justice and an attorney previously employed by the prevailing party was "in fact and in law ... inadequate and insufficient in substance" for disqualification); see also Smith , 729 So.2d at 946 ;

Adkins v. Winkler , 592 So.2d 357, 360-61 (Fla. 1st DCA 1992) ; Raybon v. Burnette , 135 So.2d 228, 230-31 (Fla. 2d DCA 1961).

With this legal framework in mind, we now turn to address the Facebook "friendship" issue.

C. Facebook "Friendship"

Facebook was officially "launched on February 4, 2004." Facebook, Inc. v. DLA Piper LLP (US) , 134 A.D.3d 610, 23 N.Y.S.3d 173, 175 (2015). Facebook is a social media and social networking service with approximately "1.79 billion active users." Packingham v. North Carolina , --- U.S. ----, 137 S.Ct. 1730, 1735, 198 L.Ed.2d 273 (2017). Facebook "permits registered users to do a host of things, among them: posting and reading comments, events, news, and, in general, communicating with ... others." United States v. Jordan , 678 F. App'x 759, 761 n.1 (10th Cir. 2017) ; see, e.g. , Elonis v. United States , --- U.S. ----, 135 S.Ct. 2001, 2004-07, 192 L.Ed.2d 1 (2015).

Facebook provides users with several means of communicating with one another. Users can send private messages to one or more users. Users can also communicate by posting information to their Facebook "wall," which is part of each user's Profile Page. A Facebook "wall post" can include written comments, photographs, digital images, videos, and content from other websites.

Shaw v. Young , 199 So.3d 1180, 1188 n.6 (La. Ct. App. 2016) (quoting Ehling v. Monmouth-Ocean Hosp. Serv. Corp. , 961 F.Supp.2d 659, 662 (D.N.J. 2013) ).

"Facebook users [primarily] create online profiles to share information about themselves with other Facebook users." Sublet v. State , 442 Md. 632, 113 A.3d 695, 698 n.5 (2015). "To create a profile, a person must go to www.facebook.com, enter his or her full name, birth date, and e-mail address, and register a password. Facebook then sends a confirmation link to the registered e-mail, which the person must click on to complete registration." Smith v. State , 136 So.3d 424, 432 (Miss. 2014). "Thereafter, the profile may be accessed on any computer or mobile device by logging into Facebook's website using the same e-mail address and password combination." State v. Buhl , 321 Conn. 688, 138 A.3d 868, 874 n.2 (2016). "Once registered, a Facebook user can ... customize her profile by adding personal information, photographs, or other content. A user can [also] establish connections with other Facebook users by 'friending' them; the connected users are thus called 'friends.' " Facebook, Inc. v. Power Ventures, Inc. , 844 F.3d 1058, 1063 (9th Cir. 2016) ; see Ehling , 961 F.Supp.2d at 662 ("A Facebook user can connect with other users by adding them as 'Facebook friends.' ").

A Facebook user's "friend" list appears on his profile page. See Strunk v. State , 44 N.E.3d 1, 5 (Ind. Ct. App. 2015) ; Commonwealth v. K.S.F. , No. 2497 EDA 2011, 2013 WL 11266159, at *1 n.3 (Pa. Super. Ct. Apr. 12, 2013). In order to "select" a Facebook "friend," a user must either (1) send a Facebook "friend" request to another user to accept or (2) accept a Facebook "friend" request sent by another user; a Facebook "friendship" is officially established by the acceptance of a previously sent "friend" request. See Fla. JEAC Op. 2009-20 (Nov. 17, 2009).

In general, "Facebook users may opt to make all or part of their Facebook information private ...." Sluss , 381 S.W.3d at 227 n.12. But even if a Facebook user generally opts to make the user's profile private, others may still be able to view the user's list of Facebook "friends" on the user's profile page. See Chaney v. Fayette County Pub. Sch. Dist. , 977 F.Supp.2d 1308, 1315 (N.D. Ga. 2013) ; State v. Eleck , 130 Conn.App. 632, 23 A.3d 818, 820 n.1 (2011). Moreover, even if the Facebook user specifically opts to make the user's Facebook "friend" list private, the user may still appear as a Facebook "friend" on another's profile page. See United States v. Meregildo , 883 F.Supp.2d 523, 525-26 (S.D.N.Y. 2012) ; State v. Gaps , 316 P.3d 172, 2014 WL 113465, at *2 (Kan. Ct. App. 2014). In this way, it could be said that a Facebook user publicly "communicates" the existence of the user's Facebook "friendships" to others. See Fla. JEAC Op. 2009-20 (Nov. 17, 2009).

We now come to the crux of the matter: what is the nature of Facebook "friendship?" "The word 'friend' on Facebook is a term of art." Chace , 170 So.3d at 803. In its most basic sense, a Facebook "friend" is a person digitally connected to another person by virtue of their Facebook "friendship." See, e.g. , Power Ventures , 844 F.3d at 1063 ; Ehling , 961 F.Supp.2d at 662.

A Facebook "friend" may or may not be a "friend" in the traditional sense of the word. But Facebook "friendship" is not-as a categorical matter-the functional equivalent of traditional "friendship." The establishment of a Facebook "friendship" does not objectively signal the existence of the affection and esteem involved in a traditional "friendship." Today it is commonly understood that Facebook "friendship" exists on an even broader spectrum than traditional "friendship." Traditional "friendship" varies in degree from greatest intimacy to casual acquaintance; Facebook "friendship" varies in degree from greatest intimacy to "virtual stranger" or "complete stranger." Chace , 170 So.3d at 803 ; see, e.g. , United States v. Tsarnaev , 157 F.Supp.3d 57, 67 n.16 (D. Mass. 2016) ("Over a billion people use Facebook and connect with other users as 'friends.' Some may be friends in the traditional sense, but others are no more than acquaintances or contacts or in some cases may even be complete strangers."); In re Air Crash Near Clarence Ctr., N.Y. , No. 09-CV-769S, 2013 WL 6073635, at *5 (W.D.N.Y. Nov. 18, 2013) (noting that "one can be [Facebook] 'friends' with people known to them, with strangers, with celebrities, with animals, and even with inanimate objects").

So it is regularly the case that Facebook "friendships" are more casual and less permanent than traditional friendships. See, e.g. , Williams v. Scribd, Inc. , No. 09CV1836-LAB WMC, 2010 WL 10090006, at *6 (S.D. Cal. June 23, 2010) ("[It is] no secret that the 'friend' label means less in cyberspace than it does in the neighborhood, or in the workplace, or on the schoolyard, or anywhere else that humans interact as real people."); Quigley Corp. v. Karkus , No. 09-1725, 2009 WL 1383280, at *5 n.3 (E.D. Pa. May 15, 2009) ("Indeed, 'friendships' on Facebook may be as fleeting as the flick of a delete button."); Herssein , 229 So.3d at 411 (" '[S]ome people have thousands of Facebook "friends." ' ... Facebook members often cannot recall every person they have accepted as 'friends' or who have accepted them as 'friends.' ... [M]any Facebook 'friends' are selected based upon Facebook's data-mining technology [suggestions] rather than personal interactions." (quoting Sluss , 381 S.W.3d at 222 ) ); State v. Smith , No. M2014-00059-CCA-R3-CD, 2015 WL 100452, at *8 (Tenn. Crim. App. Jan. 7, 2015) ("Facebook 'friendships' frequently exist between those who are indifferent to one another.").

It is therefore undeniable that the mere existence of a Facebook "friendship," in and of itself, does not inherently reveal the degree or intensity of the relationship between the Facebook "friends." Since the creation of a Facebook "friendship" in itself does not signal the existence of a traditional "friendship," it certainly cannot signal the existence of a close or intimate relationship. See McGaha v. Commonwealth , 414 S.W.3d 1, 6 (Ky. 2013) ("It is now common knowledge that merely being friends on Facebook does not, per se , establish a close relationship ...."); Sluss , 381 S.W.3d at 222 (" '[F]riendships' on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community ...."); Kirby v. Wash. State Dep't of Emp't Sec. , No. 70738-8-I, 2014 WL 7339610, at *1 (Wash. Ct. App. Dec. 22, 2014) ("The words 'post,' 'friend,' and 'friending' used in [the Facebook] context merely refer to individuals communicating with those listed on a social networking website and do[ ] not, necessarily, imply any more significant relationship between those individuals.").

In short, the mere fact that a Facebook "friendship" exists provides no significant information about the nature of any relationship between the Facebook "friends." Therefore, the mere existence of a Facebook "friendship" between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook "friends" with a relationship of an indeterminate nature.

As we now explain, our holding is in line with the majority of state judicial discipline bodies and judicial ethics advisory committees-which we refer to collectively as state ethics committees-that have considered whether Facebook "friendship" between a judge and an attorney appearing before the judge creates the appearance of impropriety under their respective states' judicial codes of conduct.

D. State Ethics Committees

The clear majority position is that mere Facebook "friendship" between a judge and an attorney appearing before the judge, without more, does not create the appearance of impropriety under the applicable code of judicial conduct. See, e.g. , Ariz. JEAC Op. 14-01, at 4 (Aug. 5, 2014); Ky. Jud. Ethics Comm. Op. JE-119, at 2-3 (Jan. 20, 2010); Md. Jud. Ethics Comm. Op. 2012-07, at 5 (June 12, 2012); Mo. Ret., Removal, & Discipline Comm'n Op. 186, at 1 (Apr. 24, 2015); N.M. Jud. Conduct Adv. Comm. Op. Concerning Soc. Media, at 13-14 (Feb. 15, 2016); N.Y. JEAC Op. 13-39 (May 28, 2013); Ohio Bd. of Comm'rs on Grievances & Discipline Op. 2010-7, at 1-2, 8-9 (Dec. 3, 2010); Utah JEAC Op. 12-01, at 4-7 (Aug. 31, 2012). In other words, the majority position is that the mere existence of a Facebook "friendship" between a judge and an attorney appearing before the judge, without more, does not reasonably convey or permit others to convey the impression that they are in a special position to influence the judge in violation of the applicable code of judicial conduct.

The minority position is that Facebook "friendship" between a judge and an attorney appearing before the judge, standing alone, creates the appearance of impropriety because it reasonably conveys or permits others to convey the impression that they are in a special position to influence the judge in violation of the applicable code of judicial conduct. See, e.g. , Cal.

Judges Ass'n Jud. Ethics Comm. Op. 66, at 1, 10-11 (Nov. 23, 2010); Conn. Jud. Ethics Comm. Op. 2013-06 (Mar. 22, 2013); Fla. JEAC Op. 2009-20 (Nov. 17, 2009); Mass. Jud. Ethics Comm. Op. 2011-6 (Dec. 28, 2011); Okla. Jud. Ethics Adv. Pan. 2011-3 (July 6, 2011).

Florida's JEAC was one of the first to advise that judges were prohibited from adding attorneys who appear before them as "friends" on their Facebook page or from allowing attorneys who appear before them to add them as "friends" on the attorneys' 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. Fla. JEAC Op. 2009-20 (Nov. 17, 2009). The JEAC has since reaffirmed its support of the minority position and extended the reasoning of the minority position to other social media and social networking services including LinkedIn and Twitter. See Fla. JEAC Op. 2013-14 (July 30, 2013) (extending the reasoning of the minority position to Twitter); Fla. JEAC Op. 2012-12 (May 9, 2012) (extending the reasoning of the minority position to LinkedIn); Fla. JEAC Op. 2010-06 (Mar. 26, 2010) (reaffirming its support of the minority position).

The overarching concern of the JEAC is that a reasonably prudent person would fear that he or she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook "friends" of an indeterminate nature. For the reasons we have explained, we conclude that concern is unwarranted. The correct approach is that taken by the majority position, which recognizes the reality that Facebook "friendship," standing alone, does not reasonably convey to others the impression of an inherently close or intimate relationship that might warrant disqualification.

In its 2009 Opinion, the JEAC relied on the "selection and communication process" of Facebook "friendship" in support of its conclusion that Facebook "friendship" between a judge and an attorney appearing before the judge reasonably "convey[s] or permit[s] others to convey the impression that they are in a special position to influence the judge." Fla. JEAC Op. 2009-20 (Nov. 17, 2009) (quoting Fla. Code Jud. Conduct, Canon 2B). But by focusing on the public nature of Facebook "friendship," the JEAC missed the intrinsic nature of Facebook "friendship." It is commonly understood that traditional "friendship" involves a "selection and communication process," albeit one less formalized than the Facebook process. People traditionally "select" their friends by choosing to associate with them to the exclusion of others. And people traditionally "communicate" the existence of their friendships by choosing to spend time with their friends in public, introducing their friends to others, or interacting with them in other ways that have a public dimension. Nevertheless, this Court has consistently recognized 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. See, e.g. , MacKenzie , 565 So.2d at 1338 ; Ervin , 85 So.2d at 833-34 ; Ball , 29 So.2d at 735. If traditional "friendship," without more, does not reasonably convey or permit others to convey the impression that they are in a special position to influence the judge, then surely Facebook "friendship"-which exists on an even broader spectrum than traditional "friendship" and is regularly more casual and less permanent than traditional "friendship"-does not reasonably convey such an impression. The JEAC's position simply cannot be reconciled with this Court's longstanding treatment of disqualification motions based on mere allegations of traditional "friendship."

CONCLUSION

In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook "friendships"-which regularly involve strangers-should be singled out and subjected to a per se rule of disqualification.

We approve Herssein and disapprove Domville .

It is so ordered.

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.

I concur with the majority opinion. However, I write to strongly urge judges not to participate in Facebook. For newly elected or appointed judges who have existing Facebook accounts, I encourage deactivation of those accounts. As explained by the majority, "friendship" on Facebook, without more, does not create a legally sufficient basis for disqualification. Rather, the unique facts and circumstances of each case, in addition to the base fact of "friendship," are what will determine whether disqualification is required.

Nevertheless, as noted by the dissent, participation in Facebook by members of the judiciary "is fraught with risk that could undermine confidence in the judge's ability to be a neutral arbiter." Dissenting op. at 900. This is deeply concerning because judges are to decide cases solely upon the facts presented to them and the law. The public and the parties expect nothing less. Therefore, judges must avoid situations that could suggest or imply that a ruling is based upon anything else. Facebook "friendships" fall across a broad spectrum, from virtual stranger to close, personal friend. Because the relationships between judges and attorneys can fall anywhere on that spectrum, judges who elect to maintain Facebook "friendships" with attorneys who have any potential to appear before them are, quite simply, inviting problems. The Honorable Catherine Shaffer, a superior court judge in Washington State and current president of the American Judges Association, aptly states that while judges must decide for themselves whether to participate in social media "with a careful eye to the ethical requirements of their own jurisdiction," she "steer[s] clear" of it because "misperception is all too easy." Are Facebook Friends Really Friends? National Center for State Courts (Aug. 29, 2018), available at https://content.govdelivery.com/accounts/USNCSC/bulletins/209842b.

I recognize that in this day and age, Facebook may be the primary means some judges use to stay in touch with family members, actual friends, or people with whom they have reconnected after many years. If this is the case, then at the very least, judges should carefully review their Facebook accounts and limit their "friendships" to cover only such individuals. However, I agree with Judge Shaffer that the safest course of action is to not participate in Facebook at all.

PARIENTE, J., dissenting.

I dissent. I would adopt the view of the Fourth District Court of Appeal in Domville v. State , 103 So.3d 184 (Fla. 4th DCA 2012), that having a lawyer as a Facebook "friend" not only "may undermine confidence in the judge's neutrality" but in this case warranted the judge's recusal based on a "well-founded fear of not receiving a fair and impartial trial." Id. at 186. Even more pointedly, as Judge Gross explained in his concurring specially opinion in granting the motion for certification in Domville :

Judges do not have the unfettered social freedom of teenagers. Central to the public's confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Unlike face to face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in a given case. The existence of a judge's Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge. As we recognized in the panel opinion, a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.

Domville , 125 So.3d at 179 (emphasis supplied) (Gross, J., concurring specially). I wholeheartedly agree.

While Facebook and other social media sites have become more sophisticated, recent history has shown that a judge's involvement with social media is fraught with risk that could undermine confidence in the judge's ability to be a neutral arbiter. For these reasons, I would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook "friends" appears before them. This rule does little to limit the judge's personal liberty, while advancing the integrity of the judicial branch as the one branch of government that is above politics.

Regardless of the appropriate parameters for a future amendment to the Code of Judicial Conduct relating to use of Facebook and other social media, it is clear that the judge in this case should have recused herself because, at the time of the recusal motion, the only binding opinion was the Fourth District's in Domville . Domville expressly required judges to recuse themselves from cases where they were Facebook friends with the lawyer, 103 So.3d at 185, and the trial judge was required to follow that opinion. See Pardo v. State , 596 So.2d 665, 666 (Fla. 1992).

More importantly and most respectfully, in my view, any attempt to equate Facebook "friendship" with traditional friendship ultimately fails. The fact that both are called "friendship" does not mean they are comparable or can be evaluated in the same manner. Further, obtaining the information required to establish a good faith basis to file a motion for recusal would require discovery that is both impractical and potentially invasive of both the judge's and attorney's privacy.

The premise of the majority opinion is that Facebook friendships and traditional friendships are analogous. But, equating friendships in the real world with friendships in cyberspace is a false equivalency. The existence of a Facebook "friendship" may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it. For example, as the majority explains, once a person becomes "friends" with another Facebook user, that person gains access to all of the personal information on the user's profile page-including photographs, status updates, likes, dislikes, work information, school history, digital images, videos, content from other websites, and a host of other information-even when the user opts to make all of his or her information private to the general public. Majority op. at 894-96; see also Daniel Smith, When Everyone is the Judge's Pal: Facebook Friendship and the Appearance of Impropriety Standard , 3 Case W. Res. J. L. Tech. & Internet 183, 200-06 (2011). Additionally, the ease of access to the "friend's" information allows Facebook "friends" to be privy to considerably more information, including potentially personal information, on an almost daily basis.

Social media communication is quickly replacing other modes of casual communication. See Smith, supra , at 200-06. Moreover, information conveyed on social media can range from the frivolous-gossip and what someone ate for dinner-to the meaningful-updates on family, friends, or even world events.

Facebook also gives the public a new way to scrutinize public figures. Politicians, for instance, have become painfully aware of the downsides of maintaining an Internet persona. Numerous candidates have been forced to deal with unbecoming photographs coming to the public's attention through either their own Facebook use or postings by other users. One candidate even found himself apologizing for his college-aged son's unremarkable underage drinking.

Id. at 188-89 (footnotes omitted).

Instead of attempting to compare social media communication and friendship to traditional communication and friendship when determining the appropriate social media policy for the judiciary, this Court should consider the elusive and public nature of Facebook "friendship," as both the Fourth District and the Florida Judicial Ethics Advisory Committee (JEAC) did. See Domville , 103 So.3d at 185-86 ; Fla. JEAC Op. 2010-06 (Mar. 26, 2010); Fla. JEAC Op. 2009-20 (Nov. 17, 2009). As those opinions correctly concluded, when those differences are taken into account, it is clear that judges' Facebook "friendships" with attorneys who appear in their courtrooms can easily cause an appearance of impropriety.

Florida's Code of Judicial Conduct requires that judges "avoid impropriety and the appearance of impropriety in all of the judge's activities." Fla. Code of Jud. Con. Canon 2. Additionally, Canon 2B states: "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge ." Fla. Code Jud. Conduct, Canon 2B (emphasis supplied). The commentary to Canon 2A explains:

A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

As the JEAC concluded:

The Committee notes, in coming to this conclusion, that social networking sites are broadly available for viewing on the internet. Thus, it is clear that many persons viewing the site will not be judges and will not be familiar with the Code, its recusal provisions, and other requirements which seek to assure the judge's impartiality. However, the test for Canon 2B is not whether the judge intends to convey the impression that another person is in a position to influence the judge, but rather whether the message conveyed to others, as viewed by the recipient, conveys the impression that someone is in a special position to influence the judge. Viewed in this way, the Committee concludes that identifying lawyers who may appear before a judge as "friends" on a social networking site, if that relationship is disclosed to anyone other than the judge by virtue of the information being available for viewing on the internet, violates Canon 2(B).

Fla. JEAC Op. 2009-20 (Nov. 17, 2009).

This dissent should not be viewed as an attack on the responsible use of social media. I emphasize, as did the JEAC, that the selection and rejection function is what causes the potential for the appearance of impropriety, after the judge has established the social networking profile that affords the judge the ability to accept or reject "friends." As the JEAC explained,

With regard to a social networking site, in order to fall within the prohibition of Canon 2B, the Committee believes that three elements must be present. First, the judge must establish the social networking page. Second, the site must afford the judge the right to accept or reject contacts or "friends" on the judge's page, or denominate the judge as a "friend" on another member's page. Third, the identity of the "friends" or contacts selected by the judge, and the judge's having denominated himself or herself as a "friend" on another's page, must then be communicated to others. Typically, this third element is fulfilled because each of a judge's "friends" may see on the judge's page who the judge's other "friends" are. Similarly, all "friends" of another user may see that the judge is also a "friend" of that user. It is this selection and communication process, the Committee believes, that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.

Id.

Clearly, social media plays an important role in today's society. For example, this Court and The Florida Bar as well as many other groups have public Facebook pages that are useful to disseminate information and enhance the role of judges, lawyers, and the judiciary in the public domain. Significantly, individuals may only "follow" these pages, but cannot become Facebook "friends" with either organization. This allows the general public to be privy to any and all information posted on the page without the appearance of impropriety that accompanies self-selection. Judges could, likewise, create pages that follow this model.

As a practical matter, it is unrealistic to require discovery into the extent of social media "friendship" as a prerequisite to recusal before a valid motion may be filed. An individual judge's social media, whether it is Facebook, LinkedIn, Instagram, or any other site, is fraught with concerns for the average litigant because it is difficult and intrusive for a litigant to determine with whom the judge has connected, with whom the judge has declined to connect, and what type of communication the judge engages in on these platforms.

If the Court is declining to follow the JEAC advisory opinions, then I urge that it at least adopt parameters for judges to follow when engaging with social media, similar to those adopted in California. And even if the majority does allow judges to continue to use social media, then it should institute a rule similar to that espoused by Connecticut, which concluded that when new judicial officials wish to return to electronic social media following investiture, the judicial official must

terminate permanently the existing account and start anew. If this course of action cannot be accomplished, the Judicial Official should edit his/her profile page upon reactivation to ensure that it is in compliance with the conditions of this opinion in every respect. This includes, but is not limited to, removing inappropriate contacts, photos, links, comments, petitions, "friending," and "Check In" postings. A Judicial Official should monitor closely new developments with respect to the [electronic social media] and keep abreast of applications instituted by the site managers. The Judicial Official also should monitor his/her participation with respect to maintaining appropriate dignity as well as insuring the precedence of the judicial office.

See Conn. Jud. Ethics Comm. Op. 2013-06 (Mar. 22, 2013).

Judges in Florida are non-partisan and held to the strictest compliance with the Code of Judicial Conduct to avoid even the appearance of impropriety. Judges, unlike the general public and even other elected officials, accept the responsibility when they take the oath of office and don their black robes that many prior activities may have to be limited for the purpose of maintaining the integrity of our justice system. One of these activities should include the use of social media to communicate, either actively or passively, with attorneys who appear before them. Because public trust in the impartiality and fairness of the judicial system is of the utmost importance, this Court should err on the side of caution.

CONCLUSION

The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge's courtroom should not be permitted. Under this rule, the opposing litigant would not be required to delve into how close the Facebook friendship may be, the judge avoids any appearance of impropriety, and Florida's courts are spared from any unnecessary questions regarding the integrity of our judiciary. Regardless, in this case, the judge was required to recuse herself because of binding precedent. Thus, I would quash the Third District Court of Appeal's decision in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass'n , 229 So.3d 408 (Fla. 3d DCA 2017), and approve the Fourth District's decision in Domville .

Accordingly, I dissent.

LEWIS and QUINCE, JJ., concur.

      The Petitioners have presented certain other issues that we decline to address.

      Of course, this general rule of law does not suggest that a friendship between a judge and an attorney of a determinate nature cannot constitute a close or intimate relationship that warrants disqualification. Nor does it foreclose the possibility that a friendship between a judge and an attorney of an indeterminate nature may, in conjunction with some additional factor, constitute legally sufficient grounds for disqualification.

      Canon 2B of the Florida Code of Judicial Conduct provides that a judge shall not "convey or permit others to convey the impression that they are in a special position to influence the judge."

      When a person assumes the significant responsibility of serving as a member of the judiciary, they must "accept restrictions on [their] conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly." Fla. Code Jud. Conduct, Canon 2A cmt. The dissent is absolutely correct that "public trust in the impartiality and fairness of the judicial system is of the utmost importance." Dissenting op. at 904.

      Judge Shaffer also expressed the belief that "it is extraordinarily difficult to prevent improper ex parte contacts." Are Facebook Friends Really Friends? National Center for State Courts (Aug. 29, 2018), available at https://content.govdelivery.com/accounts/USNCSC/bulletins/209842b.

      Following its opinion in Domville , the Fourth District certified the following question of great public importance:
      Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook "friend," would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant's motion for disqualification should be granted?
      Domville v. State , 125 So.3d 178, 179 (Fla. 4th DCA 2013). However, this Court declined review. State v. Domville , 110 So.3d 441 (Fla. 2013).

      "Following" does not involve or require acceptance by the person; it only allows you to see what that person decides to post on his or her public "Wall." If you choose to follow someone, that person's public posts will be automatically delivered to your daily feed. Conversely the person being followed will not see what the followers post (unless he or she follows them back), and the followers will not be able to access anything else that the person keeps on his or her private page. See Follow , Facebook Help Ctr., https://www.facebook.com/help/382751108453953/?ref=u2u (last visited Aug. 30, 2018).

      The California Judicial Ethics Committee considers the following factors in determining whether the attorney is in a special position to influence the judge and cast doubt on the judge's ability to be impartial:
      1) The nature of the social networking site The more personal the nature of the page, the greater the likelihood that including an attorney would create the appearance that the judge would be in a special position to influence the judge, or cast doubt on the judge's ability to act impartially.
      2) The number of "friends" on the page The greater the number of "friends" on the judge's page the less likely it is one could reasonably perceive that any individual participant is in a position to influence the judge.
      3) The judge's practice in determining whom to include As with the number of people on the page, the more inclusive the page the less likely it is to create the impression that any individual member is in a special position to influence the judge.
      4) How regularly the attorney appears before the judge If the likelihood that the attorney will actually appear before the judge is low, the more likely it is that the interaction would be permissible. On the other hand, if the attorney appears frequently before the judge the interaction is less likely to be permissible.
      See Cal. Jud. Ethics Comm. Op. 66, at 8 (Nov. 23, 2010).


author: PER CURIAM. PARIENTE, J., dissenting. LEWIS, J., dissenting. QUINCE, J., dissenting.

text:
    David P. TROTTI, Petitioner, v. Rick SCOTT, Governor, et al., Respondents.
    No. SC18-1217
    Supreme Court of Florida.
    November 26, 2018
    Philip J. Padovano and Joseph T. Eagleton of Brannock & Humphries, P.A., Tampa, Florida; Robert J. Slama of Robert J. Slama, P.A., Jacksonville, Florida; and David P. Trotti of David P. Trotti, P.A., Jacksonville, Florida, for Petitioner
    Daniel E. Nordby, General Counsel, Meredith L. Sasso, Chief Deputy General Counsel, John MacIver, Nicholas A. Primrose, and Alexis Lambert, Deputy General Counsel, Executive Office of the Governor, Tallahassee, Florida; and Bradley R. McVay, General Counsel, Ashley E. Davis, Deputy General Counsel, and Jesse Dyer, Assistant General Counsel, Florida Department of State, Tallahassee, Florida, for Respondents
   PER CURIAM.

We originally accepted jurisdiction to review Scott v. Trotti , 43 Fla. L. Weekly D1691, --- So.3d ----, 2018 WL 3580761 (Fla. 1st DCA July 26, 2018), pursuant to article V, section 3(b)(3) of the Florida Constitution. After further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, and LAWSON, JJ., concur.

PARIENTE, J., dissents with an opinion.

LEWIS, J., dissents with an opinion.

QUINCE, J., dissents with an opinion, in which PARIENTE, J., concurs.

PARIENTE, J., dissenting.

I fully concur with Justice Quince's dissenting opinion, which proposes a reasonable solution to this constitutional conundrum that would prevent judges who favor merit retention in lieu of election from manipulating the system, ensure that judicial vacancies do not exist for an extended period of time, and is consistent with this Court's precedent in Spector v. Glisson , 305 So.2d 777 (Fla. 1974). See dissenting op. at 910-11 (Quince, J.). We should not condone this practice of judges announcing their resignation before the beginning of an election qualifying period but not resigning until days before the end of their term, which has occurred since 2016, regardless of whether they prefer merit selection over election. This Court should seize the opportunity to end this practice by holding, as Justice Quince explains, that the vacancy in this case should be filled by election. Thus, I disagree with the majority's decision to discharge.

In my view, the solution set forth in Justice Quince's dissent ensures that trial court vacancies are filled, wherever possible, by election. See dissenting op. at 913-14 (Quince, J.). This solution is consistent with my previous opinion in Pincket v. Detzner , No. 16-768, 2016 WL 3127704 (Fla. June 3, 2016), where I explained:

Although individual judges may prefer the merit selection system for all judges rather than contested elections, no individual judge should be able to circumvent the intent of the provisions of the Florida Constitution that state the election of county and circuit judges "shall be preserved." See art. V, §§ 10(b)(1) & (2), Fla. Const. In fact, after the 1998 revision to the Florida Constitution, which allowed any county to opt out of election in favor of merit retention, not one county opted for this preference. Id.
As this Court stated in Spector , "if the elective process is available, and if it is not expressly precluded by the applicable language, it should be utilized to fill any available office by vote of the people at the earliest possible date. Thus the elective process retains that primacy which has historically been accorded to it consistent with the retention of all powers in the people, either directly or through their elected representatives in their Legislature." 305 So.2d at 782.
Clearly there is a problem with the current constitutional provision as interpreted when the decision of whether a judicial vacancy is to be filled by general election or gubernatorial appointment rests solely with the actions of the retiring judge, rather than with the clear directive of the Constitution. As Judge Padovano expounded in his dissent in Trotti:
Finally, I fear that the precedent the court has set here, although well intended, will be abused by those who would manipulate the election process to suit their own political or philosophical objectives. Suppose, for example, that two judges in the same judicial circuit are retiring at the end of their respective terms in office. One of them likes the governor very much and the other strongly opposes the governor. The first judge could bestow the power of an appointment on the governor simply by resigning before the qualifying period but with an effective date the day before the last day of his or her term. In contrast, the second judge could block a gubernatorial appointment simply by notifying members of the local bar that he or she does not intend to stand for re-election. Both judges would have chosen not to seek another term in office, yet one of them would have made the choice appear as though it were resignation before the end of the term.
Trotti [v. Detzner] , 147 So.3d [641,] at 648 [ (Fla 1st DCA 2014) ] (Padovano, J., dissenting).
The personal preferences of individual judges, however well-motivated their intentions, should not be the basis for determining whether a vacancy exists that can either be filled by election or appointment.

Id. at *2 (Pariente, J., concurring in result).

Justice Quince's solution is also consistent with Spector , in which the Court held that the elective process, if available, should be used to fill a vacancy. 305 So.2d at 782. Thus, for the reasons stated by Justice Quince, I would retain jurisdiction, quash the First District Court of Appeal's decision, "and hold that David P. Trotti, who properly qualified for election as circuit judge for the Fourth Judicial Circuit, Group 6, and was elected by virtue of the fact that no other candidate qualified for the seat, is entitled to take the seat that should be filled by election." Dissenting op. at 911 (Quince, J.).

Lastly, although I agree with Justice Quince and would retain jurisdiction to resolve this important constitutional issue, I disagree with the tenor of my colleague's dissent and believe the attack on our fellow justices is unnecessarily harsh and unjustified. See generally dissenting op. (Lewis, J.). This is hardly a situation where, by discharging jurisdiction, the majority "neglects its duty and turns a blind eye to [a] sham." Dissenting op. at 907 (Lewis, J.). Rather, the majority's decision to discharge-which occurs at times after a case has been fully briefed and oral argument heard-simply leaves in place the First District's decision, which concluded that, based on precedent, the judicial vacancy should be filled by appointment rather than election. Scott v. Trotti , 43 Fla. L. Weekly D1691, --- So.3d ----, ----, 2018 WL 3580761, *3 (Fla. 1st DCA July 26, 2018).

Despite the harsh tone, Justice Lewis, in fact, agrees that the judicial vacancy in this case should be filled by appointment. See dissenting op. at 908 (Lewis, J.) ("[T]he Governor properly filled the seat through appointment because the vacancy occurred prior to the qualifying period."). Thus, the difference between the First District's decision and Justice Lewis's dissent is the effective date of resignation. While the solution proposed by Justice Lewis would obviously deter judges from announcing their intention to resign but not actually resigning until months later-as it would force the judge to resign at the time that the resignation is accepted by the governor-it would also create the potential for an extended vacancy.

For the reasons stated, I disagree with the majority's decision to discharge jurisdiction and fully concur in Justice Quince's well-reasoned dissent. I also disagree with Justice Lewis's dissent, both in its unnecessarily harsh tone in criticizing the majority's decision to discharge and his proposed solution for the factual scenario presented.

LEWIS, J., dissenting.

Travesty, n, (1674): "a debased, distorted, or grossly inferior imitation < a ~ of justice>." Merriam-Webster's Collegiate Dictionary 1257 (10th ed. 1999). This accurately describes the circumstances in this case, which allow judges to make a mockery of our Florida Constitution with impunity. The issue is whether a judge can prospectively resign during an election year to manufacture a vacancy that will be filled by gubernatorial appointment instead of a regularly scheduled election. Rather than addressing this direct affront to our constitutional system of checks and balances, the Court neglects its duty and turns a blind eye to this sham. To understand this grave disregard for the rule of law, it is necessary to set out the details not included in the Court's three-sentence discharge opinion.

Vacancies in circuit and county court judicial offices "occur upon the ... resignation of the incumbent." Art. X, § 3, Fla. Const. When vacancies occur in circuit and county courts (collectively trial courts), the Constitution provides that a governor must make appointments to fill the seats. Art. V, § 11(b), Fla. Const. Importantly, however, the people of Florida have specifically enshrined their right to elect circuit and county court judges (collectively trial court judges). Art. V, § 10(b)(1)-(2), Fla. Const. Moreover, voters unanimously rejected the replacement of trial court elections with a system of appointment and merit retention. Accordingly, there is a tension between the relevant constitutional provisions with regard to vacancies that occur during an election year in judicial seats scheduled to be filled by election. Advisory Op. to the Governor re Appointment or Election of Judges (Appointment or Election I ), 824 So.2d 132, 136 (Fla. 2002).

The Constitution is silent as to whether election or appointment applies to these seats. Advisory Op. to the Governor re Sheriff & Judicial Vacancies Due to Resignations (Sheriff & Judicial Vacancies ), 928 So.2d 1218, 1220-21 (Fla. 2006). Through various advisory opinions, we rectified this discord by drawing a firm line at the qualifying period as the moment when appointment gives way to election for the purpose of filling vacancies. Appointment or Election I , 824 So.2d at 136 ; see, e.g. , Advisory Op. to the Governor re Judicial Vacancy Due to Resignation (Vacancy Due to Resignation ), 42 So.3d 795, 797 (Fla. 2010) ; Advisory Op. to the Governor re Appointment or Election of Judges (Appointment or Election II ), 983 So.2d 526, 528-29 (Fla. 2008) ; Sheriff & Judicial Vacancies , 928 So.2d at 1220. Pursuant to precedent, the Court does not look at when the actual vacancy will occur; rather, it merely determines if the constitutional vacancy occurred prior to the qualifying period. See Appointment or Election II , 983 So.2d at 529-30 ; Sheriff & Judicial Vacancies , 928 So.2d at 1220-21. Vacancies occurring prior to the qualifying period are filled by appointment. Vacancy Due to Resignation , 42 So.3d at 797. A constitutional vacancy occurs upon submission of the resignation to the governor and his or her acceptance thereof. E.g. , In re Advisory Op. to the Governor (1992 Advisory Opinion ), 600 So.2d 460, 462 (Fla. 1992).

This procedure is not perfect, Sheriff & Judicial Vacancies , 928 So.2d at 1220-21, and it would be preferable for the people to respond with a constitutional amendment to clarify their preferences in these circumstances, see Pincket , 2016 WL 3127704, at *2 (Pariente, J., concurring in result). Yet it is our system, and it strikes a reasonable balance between a governor's power to appoint and the people's right to elect. For the third straight election cycle, however, trial court judges are manipulating this constitutional process by resigning prior to the qualifying period-more than eight months before the end of their terms-while unilaterally setting their retirement effective date far in the future and a matter of days before they are required to leave office. This practice is clever albeit disgraceful because, despite the voter's clear preference for electing trial court judges, this Court has made clear that it will watch indifferently as judges employ this end around to the plain constitutional language.

Under the Court's precedent, specifically Sheriff & Judicial Vacancies , the answer to the election or appointment question here is quite simple: the Governor properly filled the seat through appointment because the vacancy occurred prior to the qualifying period. See 928 So.2d at 1220-21. However, that conclusion is not dispositive on the issue of when the resignation becomes effective. Since the establishment of this Court in 1846, there is not a single opinion that stands for the proposition that trial court judges, or any other public officers, can unilaterally determine the manner of selecting their successors by tendering a delayed resignation to take effect almost a year in the future. Rather, this Court has specifically noted that the "Constitution still does not define or fix the effective date of a resignation." Brantley , 400 So.2d at 447. Regardless, in Brantley , the Court established that it has the power to qualify or limit a public official's right to relinquish office if necessary to protect the public. Id. Given the repetitive nature of this problem and the clear harm that it causes to the public every two years, we should discharge our constitutional obligation and put an end to this shameful practice. In line with the Court's precedent, it is obvious that the qualifying period should act as the cutoff for when a resignation becomes effective along with determining which manner of filling the vacancy applies. See Appointment or Election II , 983 So.2d at 529-30 ; Sheriff & Judicial Vacancies , 928 So.2d at 1220-21. If the qualifying period cutoff is to mean anything, then the Court must enforce that date as the cutoff for all purposes.

Tellingly, the Constitution does not draw the distinction that we lawyers have created between actual and constitutional vacancies. The Constitution says that a vacancy occurs "upon the ... resignation of the incumbent." Art. X, § 3, Fla. Const. Through the years, we have interpreted that language to mean that prospective resignations create present constitutional vacancies. E.g. , Spector v. Glisson , 305 So.2d 777, 780 (Fla. 1974). Yet outside of these insulated and occasionally academic courthouse walls, a vacancy in office cannot occur at two separate points in time. A vacant office is an unoccupied office. See Black's Law Dictionary , Vacancy (10th ed. 2014) ("[A vacancy is t]he quality, state, or condition of being unoccupied, esp. in reference to an office."). So, absent additional constitutional guidance to allow this type of gamesmanship, the resignation must create the vacancy now or create the vacancy later; but it cannot create two vacancies for the purpose of thwarting an election. Therefore, it is our jurisprudential wordplay, rather than the plain language of the Constitution, which has enabled this practice to proceed unabated.

Make no mistake, there is absolutely nothing in the Constitution, Florida Statutes, or the decisional law of this State that grants trial court judges the right to delay their resignation by eight months. We have consistently interpreted article X, section 3 to mean that trial court vacancies occur upon acceptance of a resignation by the governor. E.g. , 1992 Advisory Opinion , 600 So.2d at 462. Additionally, we have noted that the "Constitution still does not define or fix the effective date of a resignation." Brantley , 400 So.2d at 447. Without any additional guidance from the constitutional plain language, it is self-evident that both the constitutional and actual vacancies must occur simultaneously in these cases. The effect of these manufactured vacancies is to deprive the people of an election; therefore, it is an absolute travesty for this Court to allow these judges to remain in office for essentially the remainder of their term. The only way for the Court to rein in this practice is to set a firm date that coordinates the relevant constitutional provisions- article V, sections 10(b)(1) -(2) and 11(b)-with the dates between the actual and constitutional vacancies. Those dates should be one and the same. To hold otherwise, the Court must subscribe to the fantasy that a vacancy both occurs upon the resignation, but is also delayed until the officer decides to leave office. For at least the better part of three centuries, it has been part of western society's collective conscience that people cannot have their cake and eat it too. See Jonathan Swift, Polite Conversation 112 (George Saintsbury ed., Chiswick Press 1892) (1738). But the Court today rejects that common-sense rationale, subscribing instead to the legal fiction that constitutional and actual vacancy dates may be as far apart as any particular judge desires.

In my view, the Constitution prohibits judges from circumventing it, requiring them to protect and defend that bedrock document instead of frustrating its purpose. See art. II, § 5(b), Fla. Const. (requiring every state officer to swear to "support, protect, and defend the Constitution and Government of the United States and of the State of Florida"). Although our jurisprudence holds that the replacement to this seat must be appointed, nothing in the Constitution or this Court's precedent suggests in any way that outgoing judges can set the effective dates of their resignations eight months in the future and mere days before leaving office. This practice is a brazen attempt to accomplish that which is otherwise prohibited: judges cannot unilaterally dictate the constitutional process for filling vacancies in the seats that they are vacating. Here, however, that is precisely occurring, and it is accomplished through the use of a fake, false, and otherwise hollow resignation date by setting the occurrence of the actual vacancy a matter of days before the regularly scheduled end of the term. These judicial officers should not be permitted to retain the benefits of office while at the same time creating a constitutional vacancy that forecloses an election. If judges would like to resign early, then they should actually resign and leave office. By allowing these judges to remain on the bench, the Court effectively allows its own qualifying period cutoff to be rendered nugatory-subject to the whims of individual judges in election years. Cf. Appointment or Election II , 983 So.2d at 530 ("The determination of constitutional provisions should not vary based upon fluctuations of the individual 'election process' for a given year."). Moreover, as a practical matter, we are not only allowing judges to steal elections from their neighbors, but now we are giving them paychecks for the trouble.

The Governor argues that these prospective resignations are necessary for continuity on the bench and the administration of justice because a resignation effective immediately would leave the seat vacant for up to four months. See art. V, § 11(c), Fla. Const. However, the existence of an actual vacancy in a particular seat is a red herring in this discussion for several reasons. First, there are hundreds of senior judges across this State who are available for temporary assignment while a governor makes an appointment to a vacant trial court seat. See art. V, § 2(b), Fla. Const. (empowering the chief justice of this Court to assign senior judges to any court). Thus, any effect on the administration of justice can be easily ameliorated. Second, it is the judges manufacturing these vacancies, not the constitutional process, that creates any problem which actual vacancies may present. Unlike merit retention seats, where judges and justices can retire early in order to allow the appointment process to commence prior to the end of a term, there is no justification for trial court judges to retire early. The terms of trial court judges end on a set date, and their successors take office the following day, ensuring a smooth transition. However, because these judges have set out to manufacture vacancies, the offices will actually be vacant for a few days. Finally, the occurrence of the actual vacancy is not dispositive in this Court's analysis. We have consistently held for two decades that it is the qualifying period that controls regardless of whether a lengthy physical vacancy will result. E.g. , Appointment or Election I , 824 So.2d at 133, 136. Accordingly, there is no rationale to support these types of prospective resignations.

Certain jurists, including myself, may agree that merit retention is superior to elections as a method for selecting judges. However, under our constitutional system, the people chose to elect their trial court judges. It is a basic tenet of our constitutional system that this Court should respect that decision. As we must always remember,

Ours is a government of, by and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of that government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or we risk the unnecessary and unjustified muting of the public voice.

Boardman v. Esteva , 323 So.2d 259, 263 (Fla. 1975). Instead of treading carefully to effectuate the intent of the voters by applying its own precedent in a commonsense fashion, this Court now decides to stick its head in the sand.

Alas, here we are in bizarro world: where a vacancy both exists and does not yet exist; where we ignore the fact that an election could and should occur due to a legal fiction not found in our Constitution. As a society, we call upon judges to protect and uphold our Constitution. In my view, the people cannot be confident that these judges will properly enforce the text of a document that they so willingly scorned. Although we cannot prevent judges from sullying their robes as they walk out the door, we can at least ensure that they leave office immediately.

Accordingly, I dissent.

QUINCE, J., dissenting.

I respectfully dissent from the decision to discharge jurisdiction in this case. Instead, I would retain jurisdiction because the issues before this Court involve the authority of a state officer to take certain actions and the interpretation of the constitutional provisions relating to those actions. These issues are a matter of great public importance. Thus, I would address the issues and quash the decision of the First District Court of Appeal, and hold that David P. Trotti, who properly qualified for election as circuit judge for the Fourth Judicial Circuit, Group 6, and was elected by virtue of the fact that no other candidate qualified for the seat, is entitled to take the seat that should be filled by election.

We laid out the framework for adherence to judicial elections in Spector v. Glisson , 305 So.2d 777 (Fla. 1974), when we said:

We have historically since the earliest days of our statehood resolved as the public policy of this State that interpretations of the constitution, absent clear provision otherwise, should always be resolved in favor of retention in the people of the power and opportunity to select officials of the people's choice, and that vacancies in elective offices should be filled by the people at the earliest practical date.

Id. at 781. We further stated that when there was an intervening election, a judicial vacancy "should be filled by the intervening available elective machinery." Id. at 784. We reasoned that to do otherwise "would frustrate the plain requirements of our constitution." Id. We later concluded "that the constitution mandates an election when there is sufficient time to afford the electorate an opportunity to fill a judicial vacancy." Judicial Nominating Commission, Ninth Circuit v. Graham , (JNC, Ninth Circuit ), 424 So.2d 10, 10 (Fla. 1982). In JNC, Ninth Circuit , we explained our holding in Spector , stating:

[W]e held that if a judicial vacancy is known reasonably in advance of an intervening primary and general election, the vacancy must be filled by election. The holding in Glisson was predicated upon the fact that the constitutional provision was intended to have the election process select members of the judiciary if the electorate had adequate knowledge that a vacancy would occur and that candidates could qualify and run during the regularly scheduled primary and general election process.

JNC, Ninth Circuit , 424 So.2d at 11-12.

Balanced with this principle-that the constitution prefers elections to occur whenever practicable-is the principle that "[v]acancies in office are to be avoided whenever possible." In re Advisory Opinion to the Governor , 600 So.2d 460, 462 (Fla. 1992). We therefore encouraged judges to "submit their resignations, to be effective in the future, at a time that permits the process to proceed in an orderly manner and keep the position filled." Id. Accordingly, we held that Spector "applies to a situation where a sitting judge unequivocally resigns effective at a future date. When a letter of resignation to be effective at a later date is received and accepted by [the Governor], a vacancy in that office occurs and actuates the process to fill it." Id.

In our advisory capacity, we have consistently concluded that the conflict between the sections of the constitution "must be resolved by a construction which gives effect to the clear will of the voters that circuit and county judges be selected by election." Advisory Opinion to the Governor re Appointment or Election of Judges (Appointment or Election of Judges ), 824 So.2d 132, 136 (Fla. 2002). We opined, therefore, "that upon the qualification of a candidate or candidates for a circuit or county judgeship during the statutory qualification period, the election method of selection required by section 10 (b)(1) and (2) takes precedence over and forecloses the Governor's constitutional authority and obligation pursuant to section 11 (b) to fill a vacancy." Id. In so doing, we defined the election process as beginning "when a candidate or candidates have qualified for the circuit or county judgeship." Id. at 135 (citing ch. 2002-17, § 23, Laws of Fla.). We narrowed this ruling to apply only "where a candidate or candidates have already qualified during the statutory qualifications period, one of whom will fill the position by election." Id. at 136.

In other words,

We have interpreted the interplay between article V, section 11(b), and article V, section 10(b), by holding that when a vacancy occurs in the county or circuit courts before the qualifying period for the seat commences, the vacancy should be filled by appointment, but once the election process begins, such a vacancy should be filled by election. Advisory Opinion to Governor re Sheriff & Judicial Vacancies Due to Resignations, 928 So.2d 1218, 1220 (Fla. 2006) ( Sheriff & Judicial Vacancies ); Appointment or Election of Judges 2008, 983 So.2d at 528. In order to promote consistency in the process of filling judicial vacancies, we identified the beginning of the statutory qualifying period as a fixed point to mark the commencement of the election process. Appointment or Election of Judges 2008, 983 So.2d at 529.

Advisory Opinion to the Governor re Judicial Vacancy Due to Resignation , 42 So.3d 795, 797 (Fla. 2010).

As demonstrated, we have previously adopted and repeatedly reaffirmed a bright-line rule that vacancies that occur once the election process begins should be filled by election. Vacancies that occur before the election process begins or after it has completed are filled by gubernatorial appointment. See, e.g. , Advisory Opinion to the Governor re Judicial Vacancy Due to Resignation , 42 So.3d 795, 798 (Fla. 2010) (incumbent resigned after the election process had effectively ended). In so doing, this Court has left an extremely narrow window by which the "clear will of the voters" may be effected and has permitted gamesmanship within the judicial election process that the people surely do not condone. Paraphrasing a previous admonition of this Court, a judgeship is not an office that may be capriciously forsaken at will for personal benefit. See, e.g. , Advisory Opinion to the Governor re Judicial Vacancy Due to Resignation , 42 So.3d 795, 798 (Fla. 2010).

The question really becomes one of when the vacancy in office occurs. The term "vacant" is defined as "empty, unoccupied." Black's Law Dictionary , 1782 (10th ed. 2014). In the case before us, Judge Robert M. Foster tendered his resignation to Governor Scott on April 2, 2018, effective December 31, 2018, for his term expiring January 7, 2019. Judge Foster was ineligible to seek re-election. Governor Scott accepted Judge Foster's resignation on April 23, 2018, seven days before the beginning of the statutory qualifying period for election of circuit court judges. Thus, there would have been a natural vacancy-by expiration of his term-on January 7, 2019. However, having chosen to leave on December 31, 2018, the empty, unoccupied office-the vacancy-will occur on December 31, 2018. Both dates are after the general election that will be held on November 6, 2018. Thus, pursuant to Glisson the position must be filled by an election. An election, in fact, took place when one candidate qualified for the position without opposition.

This is not a case where an unreasonably long vacancy would occur because Judge Foster is not vacating his seat until seven days before his term ends and a new judge could fill his seat. Seven days after December 31 is not an unreasonable delay. Judge Foster and Governor Scott are merely using the legal fiction of a letter sent and acceptance of that letter before the qualifying period, a legal fiction created by this Court, to circumvent the will of the voters. Allowing this practice to continue undermines the credibility of the judicial branch by turning it into a mere political game of hot potato-elections can be avoided by a mere day.

The importance of an independent judicial branch has been oft-repeated.

Arthur Vanderbilt of the New Jersey Supreme Court said it best in 1937 when he said: "If citizens have respect for the work of their [c]ourts, their respect for law will survive the shortcomings of every other branch of government; but, if they lose their respect for the work of the courts, their respect for law and order will vanish with it."

Richard H. Levenstein and Judge Michelle Sisco, Crisis of Knowledge: The Importance of Educating the Public About the Role of Fair and Impartial Courts in Our System of Government , Fla. B. J., May 2016 at 35, 37. The gamesmanship on display here could serve to undermine the voters' respect for the courts. Accordingly, I would hold that, for the purposes of elected judges, a resignation letter accepted during an election year that indicates that the judicial officer will leave on a date after an intervening election, when there is still time for parties to properly qualify for an election, creates a vacancy on the date stated in the letter, not the arbitrary date it is accepted by the Governor. This ruling would reconcile our previous decisions while still permitting retiring or resigning judges flexibility to determine when they should step down. Surely when the people determined that they would prefer to elect certain judges, they did not intend for that desire to be circumvented by artificial vacancies.

Because I would find that Judge Foster's seat should be filled by election and not appointment, I respectfully dissent.

PARIENTE, J., concurs.

      In 2000, every Florida county and judicial circuit voted on this issue, art. V, § 10(b)(3), Fla. Const., and each voted against trial court merit retention, Pincket v. Detzner , No. SC16-768, 2016 WL 3127704, at *2 (Fla. June 3, 2016) (Pariente, J., concurring in result); see also Fla. Dep't of State, Div. of Elections, Official Results from 2000 General Election, https://results.elections.myflorida.com/Index.asp?ElectionDate=11/7/2000&DATMODE= (last visited Nov. 21, 2018).

      Although the Court repeatedly cites this point of law, it likely cannot completely withstand the scrutiny of review. In Smith v. Brantley , 400 So.2d 443 (Fla. 1981), this Court held that gubernatorial acceptance of a judicial resignation is not necessary to render it effective. Id. at 448-49. We specifically rejected the argument there that section 114.01(1)(d), Florida Statutes (1977)-which required gubernatorial acceptance-controlled over the plain language of the Constitution. Id.

      It should be noted that none of this applies to judicial vacancies occurring in merit retention. See Mandatory Retirement , 940 So.2d 1090, 1094 (Fla. 2006) ; art. V, § 10(a), Fla. Const.

      We distinguished that case from Pincket v. Harris , 765 So.2d 284 (Fla. 1st DCA 2000), because "in Pincket no person had qualified for the election at the time the vacancy occurred because the qualification period had not yet occurred." Appointment or Election of Judges , 824 So.2d at 136 n.9.

      We have previously stated, "Under our precedent, a judicial vacancy occurs when a letter of resignation is received and accepted by the Governor." Advisory Opinion to the Governor re Sheriff & Judicial Vacancies Due to Resignations , 928 So.2d 1218, 1220 (Fla. 2006) (citing In re Advisory Opinion to the Governor (Judicial Vacancies) , 600 So.2d 460, 461 (Fla. 1992). I conclude, however, that we have done so to reaffirm the constitutional preference for the election of judges whenever possible. See, e.g., Glisson , 305 So.2d at 784. To the extent the legal fiction we created may be used to circumvent the political process, I would clarify those holdings and place them back into the context in which they were made.