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June 2013 - Face Off

by Richard W. Millar, Jr.

I confess to being a relatively moderate aficionado of social media. I think I am on something called Plaxo because, if I recall correctly, a few years back a friend sent me what passed for an electronic invitation. Since then, I receive very occasional reminders of one thing or another from the Plaxo mothership to which I give either scant or no attention.
I am also on LinkedIn, though I don’t remember how that started. That site is certainly more active, and I am frequently receiving invitations, several from people I know, but also an inordinate number from people that I not only do not know, but would never have any conceivable reason or occasion to know. I have not even been able to find out how to post a picture on LinkedIn, and I sought help from my oldest and very tech-savvy college student grandson, but he was of no help, implying, not terribly subtly, that LinkedIn was way too uncool to devote his seemingly otherwise unlimited computer resources to.
Also, primarily because I was curious to see what all the fuss is about, and because the ABA posted meeting information on it, I joined Twitter. The only thing that I have found Twitter good for, depending upon your definition of “good,” is that I now receive almost weekly emails from the company inquiring why I am not using it. I have also attracted a small number of followers, although I have no idea what they think they are following, as I have never posted anything nor am I likely to. If they are waiting for something brilliant, they are truly leading lives of quiet desperation.
And then there is Facebook. I actually enjoy Facebook. It is always fun to follow the grandchildren’s experiences, see their pictures, and count the liquor bottles in the background.
Other than a fleeting middle-of-the-night thought of “friending” a judge I didn’t like in order to create a disqualification while still preserving a 170.6, I never thought of Facebook as an offensive weapon. In that respect, I was hopelessly naïve.
James and Emily Lacy, formerly, or perhaps still, husband and wife, are engaged—a particularly inapt term in this instance—in divorce proceedings in the Ocmulgee Circuit. For those of you not conversant with Ocmulgee (which incidentally includes my spellcheck program), that circuit is somewhere in Georgia. Somehow their proceedings involved three separate judges with three separate orders, all of which ended up consolidated before the Georgia court of appeal. As near as I can tell, the father was the aggrieved party in each of the rulings, and one of the orders which he appealed was a denial of his motion to recuse all of the superior court judges in the Ocmulgee Circuit which would include, I suspect, more than just the judges who had made various adverse rulings. (In the wingspan of my career, if there is ever a motion where its doom is sealed before the ink on it has dried, it is a motion to disqualify an entire bench, but I digress.) It probably did not help that Mr. Lacy’s “briefs [were] rife with discourteous and disparaging comments regarding the Ocmulgee Circuit judiciary in general and Judge Parrott and Chief Judge Prior in particular.”
This, in turn, caused the court to observe that: “[W]e take the opportunity to comment that the father’s failure to present his arguments in compliance with this Court’s rules has done nothing to advance his cause and has hindered our resolution of these appeals.”
In the appeal, Mr. Lacy, who never moved to have Judge Parrott recused (why pick on one when you are after the entire bench), argued that the judge was obligated to recuse himself because he had personal bias in favor of Mrs. Lacy. The source of Mr. Lacy’s evidence: Facebook! 
Mrs. Lacy, it is averred, posted the following comment on Mr. Lacy’s Facebook page: “[J]udge [P]arrott and my dad ha[d] a meeting the week before our case and guess what you lost your kids.” 
The court of appeal went with the wife on that issue, unconvincingly stating that: “We cannot say that an indefinite reference to a meeting between the judge and someone not a party to the case necessarily ‘support[s] the inescapable conclusion that a reasonable person would consider [Judge Parrott] to [have] harbor[ed] a bias that affect[ed] his ability to be impartial.’”
In another appeal, the court of appeal affirmed a different judge’s order enjoining both parties from posting matters about each other or their lawsuit on Facebook or other networking sites.
According to reports, Mr. Lacy posted on Mrs. Lacy’s page a statement to the effect that she and her family can’t keep on buying everything, and Mrs. Lacy allegedly topped her “the fix is in” post with another stating that Mr. Lacy would never be able to prove how much she drank or how much cocaine she did because her rehab records were sealed.
It is this kind of challenge that makes me glad I am not a judge. On the one side, you have a father railing against every judge in the county and on the other side, you have the wife boasting on worldwide social media that the fix was in and that her cocaine use records were sealed. No great choices there.
The court of appeal, while observing that it had never come across a judgment restricting behavior on social network sites, noted the usual no disparagement orders common in divorce cases and found no error in the trial court’s restriction.
Perhaps Facebook should add a “dislike” button.

   
Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach. He can be reached at millar@mhblaw.net.

 
Orange County Bar Association | P.O. Box 6130 | Newport Beach, CA 92658 | 949.440.6700 | info@ocbar.org
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