Facts: Husband and Wife are residents of Bradley County, Tennessee. In September 2015, Husband and Wife met with Lawyer to discuss the preparation of documents necessary to dissolve their marriage. Shortly thereafter, Husband, acting through Lawyer, filed a complaint for divorce nearby in Rhea County. With Husband’s filing was a sworn Answer executed by Wife where she waved venue so as to enable the Rhea County court to handle the matter, along with an agreed parenting plan and marital dissolution agreement.

Wife subsequently retained counsel. Wife’s attorney filed a motion to retract Wife’s agreement to the parenting plan, marital dissolution agreement, as well as her waiver of venue. Wife’s attorney requested that the case be transferred to Bradley County.

The trial court judge denied the request to transfer the case to Bradley County.

A few months later, Wife’s attorney filed a motion requesting that the trial court judge recuse himself on the grounds that the judge had engaged in personal and extrajudicial activities “that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” Specifically, the motion asserted that Wife had become aware through social media that the trial court judge was formerly an employee of Lawyer, the attorney for Husband, and that a close personal relationship has continued between the judge and Lawyer.

Wife discovered that the judge had an Instagram account. She requested to “follow” the judge’s account. The judge accepted her request. Wife then discovered two pictures of the judge and Lawyer drinking beer at a University of Tennessee football game in Nashville.

The trial judge denied Wife’s motion for recusal, explaining he was never a partner in Lawyer’s practice, they have no financial or business relationship, and the judge occasionally socializes with Lawyer and other members of the bar. The trial judge explained:

The 12th Judicial District has a long history of being a close knit bar with many members of the bench and bar maintaining friendships. This is evidenced by our annual bar dinner in many other instances. Even at one of our annual Judicial Conferences, there are numerous Bar/Bench joint social events. There is nothing ethically wrong with socializing with attorneys who practice before the Court. Camaraderie is encouraged and is healthy for the bar.

Wife appealed.

On Appeal: The Court of Appeals reversed the trial court.

The right to a fair trial before an impartial tribunal is a fundamental constitutional right. Preservation of the public’s confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial.

A judge is required to recuse himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. In other words, even when a judge subjectively believes that he or she can hear a case fairly and impartially, the judge still must recuse himself or herself when a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality. This objective standard is necessary because the appearance of bias is as injurious to the integrity of the judicial system as actual bias.

Lawyer argued that he is friends with all the judges in the 12th Judicial District, having practiced there for 34 years. Lawyer said if socializing between a judge and an attorney requires the recusal of the judge, then thousands of cases across Tennessee will be subject to scrutiny because of casual interaction between the judges and attorneys.

The Court determined that this case was different:

We agree with [Lawyer] that the mere existence of a friendship between a judge and an attorney is not sufficient, standing alone, to mandate recusal. However, this case is not simply about the friendship that exists between [Lawyer and the trial judge], but rather whether the depiction of that friendship on social media, as managed by [the trial judge] on his Instagram account, would lead a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, to find a reasonable basis for questioning the judge’s impartiality.
*     *     *     *     *
It is clear from the record in this case that [the trial judge] maintained a private account on Instagram which required him to approve all “follow” requests before the photographs posted by him on the account could be seen. It is also clear from the record that the photographs of the social interactions between [the trial judge and Lawyer], taken from [the trial judge’s] Instagram account and relied on in support of the motion seeking his recusal, depict a closeness to their friendship that undermined Wife’s confidence in [the trial judge’s] ability to remain independent and impartial, as stated by her in the affidavit filed in support of her motion. While we do not suggest that [the trial judge] is unable to put his personal friendship with [Lawyer] aside in order to fulfill his role as an impartial judge, we do conclude that the photographs [the trial judge] allowed Wife to view on his account, by accepting her “follow” request, would lead “a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge,” to “find a reasonable basis for questioning the judge’s impartiality.”

Accordingly, the trial court was reversed and the case remanded to be assigned to different judge.

K.O.’s Comment: One interesting thing about this case, other than the unusual outcome, is the Court’s explanation that “the second photograph is the kind of self-portrait taken with a cellular telephone commonly referred to as a ‘selfie.'” The Court then cites a Texas opinion to explain that “a ‘selfie’ is a photograph a person takes of himself . . . with a cell phone for posting on social media.” LOL.

Frazier v. Frazier (Tennessee Court of Appeals, Eastern Section, August 26, 2016).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.