IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FOURTH DISTRICT PIERRE DOMVILLE, Petitioner,

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STATE OF FLORIDA, Respondent. ____________________________1
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NOTICE TO INVOKE DISCRETIONARY JURISDICTION NOTICE IS GIVEN that The State of Florida invokes the

discretionary jurisdiction of the Supreme Court of Florida to review the decision of this Court rendered ON MOTION FOR REHEARING AND MOTION FOR CERTIFICATION on January 16, 2013. The decision,

pursuant to Florida Rule of Appellate Procedure 9.030(a) (2) (A) (v), certified a question of great public importance to be answered by the Court. The Supreme Court's jurisdiction is invoked under

article V, section 3{b) (4) of the Florida Constitution. Respectfully submitted,

PAMELA JO BONDI

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JAN 242013
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CLERK DlSTRI[;T COURT OF APPEAL. FOURTH DISTRICT

A;tto,:rney General T lahassee, Florida

Senior Assist General Florida Bar N 1515 North Fl Suite 900 West Palm Beach, FL 33401 Telephone: (561) 837-5000 Facsimile: (561) 837-5108 CrimAppWPB@MyFloridaLegal.com

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Courisel for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that a "pdf" copy of the foregoing "Notice to Invoke Discretionary Jurisdiction" has been furnished bye-mail to: DANZLE G. LATTY, ESQUIRE, 746 N.E. 3d Avenue, Fort Lauderdale, FL 33304, ATTORNEY FOR PETITIONER, at Denzle .latty@dlattylawcom, this 23rd day of January, 2013.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Tenn 2012

PIERRE DOMVILLE, Petitioner,

v.
STATE OF FLORIDA,

Respondent. No.4DI2-556 [September 5, 2012]

.PER CURIAM.

In this case we consider a criminal defendant's effort to disqualify a judge whom the defendant alleges is a Facebook friend of the prosecutor assigned to his case. Finding that grounds for disqualification exist, we grant the petition for writ of prohibition. Petitioner Pierre Domville moved to disqualify the trial judge. The motion was supported by an affidavit averring that the prosecutor handling the case and the trial judge are Facebook "friends." This relationship caused Domville to believe that the judge could not "be fair and impartial." Domville explained that he was a Facebook user and that his "friends" consisted "only of [his] closest friends and associates, persons whom [he] could not perceive with anything but favor, loyalty and partiality." The affidavit attributed adverse rulings to the judge's Facebook relationship with the prosecutor. The trial judge denied the motion as "legally insufficient."
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In determining the legal sufficiency of a motion to disqualify the trial judge, this court reviews the motion's allegations under a de novo standard. See Peterson fl. Asklipious, 833 So. 2d 262, 263 (Fla. 4th DCA 2002). Florida Rule of Judicial Administration 2.330(f) requires a judge to grant disqualification if the motion to disqualify is "legally sufficient." A motion is legally sufficient if "'the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.'" Brofman fl. Fla. Hearing Care Ctr" Inc., 703 So. 2d 1191, 1192 (Fla. 4th DCA 1997) (quoting Hayslip fl. Douglas, 400 So. 2d 553, 556 (Fla. 4th DCA A mere "subjective fear[ ]" of

bias will not be legally sufficient; rather, the fear must be objectively reasonable. Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986). We find an opinion of the Judicial Ethics Advisory Committee to be instructive. See Fla. JEAC Op. 2009-20 (Nov. 17, 2009). There, the Committee concluded that the Florida Code of Judicial Conduct precludes a judge from both adding lawyers who appear before the judge as "friends" on a social networking site' and allowing lawyers to add the judge as their "friend." The Committee determined that a judge's listing of a lawyer as a "friend" on the judge's social networking page"[t]o the extent that such identification is available for any other person to view"-'would violate Florida Code of Judicial Conduct Canon 2B ("A judge shall not ... convey or permit others to convey the impression that they are in a special position to influence the judge."). See Fla. JEAC Op. 2009-20. The committee found that three elements are necesswy in order to fall within the prohibition of Canon 2B: 1. The judge must establish the social networking page. 2. 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. 3. 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. Id. The committee noted that: Typically, [the] third element.is (ulfilled because each of a judge's "friends may see on the judge's page who the judge's other "friends" are. "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 28, 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. Further, the Committee concluded that when a judge lists a lawyer who appears before him as a "friend" on his social networking page this "reasonably conveys to others the impression that these lawyer 'friends' are in a special position to influence the judge." Id. See also Fla. Code Jud. Conduct, Canon SA.
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The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a "friend" on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted. Fla. JEAC Op. 2009-20. Thus, as the Committee recognized, judge's activity on a social networking site may undermine confidence in the judge's neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality. The Commentary to Canon 2A. explains that being a judge necessarily limits a judge's personal freedom: A judge must avoid all impropriety and the appearance of impropriety. 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. Fla. Code Jud. Conduct, Canon 2A, cmt. Because Domville has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial, we quash the order denying disqualification of the trial judge and remand to the circuit court for further proceedings consistent with this opinion.. GROSS, GERBER and LEVINE, JJ., concur.

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Petition for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No. 09-11910 CF10A. Denzle G. Latty, Fort Lauderdale, for petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for respondent.
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Not jf.na.l until disposition 01 timely flled motion lor rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLoRIDA

FOURTH DISTRICT

January Tenn 2013

PIERRE DOMVILLE,

Petitioner,

v.
STATE OF FLORIDA,
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Respondent. No. 4012-556 [January 16, 2013J

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PER CURIAM.

ON MOTION FOR REHEARING AND MOTION FOR CERTIFICATION

We deny the motion for rehearing but grant the motion for Pursuant to Florida Rule of Appellate Procedure certification. 9.030(a)(2)(A)(v), we certify the following to be a 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 prqdent person fear that he could not get a fair and impartial'trial, so that the defendant's motion for disqualification should be granted?
GROSS and LEVINE, JJ., concur. GROSS, J. concurs specially with opinion. GERBER, J., concurs in part and dissents in GROSS,

part, with opinion.

J., concurring specially.

I concur in the certification of the question because I recognize that the ability to participate in social media is of great importance to many and there are disagreements between reasonable persons about the way that a judge may take part in social media site"s such as Facebook. I also concur in the denial of the motion for rehearing because I believe the case was correctly decided.

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.
GERBER,

J., concurring in part and dissenting in part.

I in the majority's denial of the state's motion for rehearing. I respectfully dissent from the majority's granting of the state's motion for certification of a question of great public importance. The majority does not provide its reasoning for its conclusion that the certified question is one of great public importance. The only reasoning for its conclusion appears to be stated in the concurring opinion. I disagree With the concurring opinion's reasoning. The concurring opinion reasons that the ability of judges to participate in social media with attorneys who appear before them "is of great importance to many.'" However, the concurring opinion does not cite any authority for that statement. On the contrary, as the concurring opinion recognizes, common sense suggests that the public, without question; would appear to desire otherwise: "Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance . . . [A] person who accepts the responsibility of being a judge must also accept limitations on persori.al freedom." . Our onginal panel opinion, Domville v. State, 37 Fla. L. Weekly D2126 (Fla. 4th DCA Sept. 5, 2012), addressed the narrow issue which has led to the certified question. We concluded that, where the presiding judge in a criminal case had accepted the prosecutor assigned to the case as a Facebook "friend," a reasonably prudent defendant would fear that he or she could not receive a fair and impartial trial, so that the defendant's motion for disqualification should be granted. The occurrence of those
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facts in this case appears to be an isolated event, and understandably so. I see no basis to certify a question of great public importance. 1

Petition for writ of prohibition to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge; L.T. Case No. 09.,11910 CFIOA. Denzle O. Latty, Fort Lauderdale, for petitioner. Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney .General, West Palm Beach, for respondent.

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state's motion for certification argued that this court's original panel opinion raised a question of great public importance because the opinion allegedly "found unethical, reprimanded and disqualified [a sitting Circuit Judge] ... based on a trumped up 'ethical violation,' without the Judge being given an opportunity to defend himself, or take corrective measures of the ethical impropriety." It should go without saying that an appellate opinion granting a petition challenging the denial of a motion to disqualify in no way suggests that the subject judge is "unethical" or has been "reprimanded," and we have not done so in this case. Further, it is well-established that "[t]he judge against whom an initial motion to disqualify . . . is directed shall determine only the legal of the motion and shall not pass on the truth of the facts alleged." Fla. R. Jud. Admin. 2.330(1) (2012). "If the motion is legally sutncient, the judge shall immediately enter an order granting disqualification and proceed no further in the action. If any motion is legally insufficient, an order denying the motion shall immediately be entered. No other reason for denial shall be stated, and an order of denial shall not take issue with the motion." Id.
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FOURTH DISTRICT COURT OF APPEAL 1525 PALM BEACH LAKES BLVD. WEST PALM BEACH, FLORIDA 33401 (561) 242-2000
Janutll'V 29. 2013

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Re: Pierre DomviUe v. State of Florida Case No: 4DI2-556 Trial Court No.: 09-1l910CFI0A Trial Court Judge: Andrew L. Siegel

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Dear Mr. Hall:

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Attached is a certified copy of a Notice to Invoke Discretionary Jurisdiction to the Supreme Court of Florida pursuant to Rule 9.120, Florida Rules of Appellate ,Procedure. Attached also is this Court's opinion or decision relevant to this case. _The filing fee prescribed by Section 25.241(3), Florida Statutes, was received by this court and will be mailed. _The filing fee prescribed by Section 25.241(3), Florida Statutes, was not received by this court. _Petitioner/Appellant has been previously detennined insolvent by the circuit court or our Court. _Petitioner/Appellant has already filed, and this court has granted, petitioner/appellant's Motion to proceed without payment of costs in this case No filing fee is ,required in the underlying case in this court because it was: _ A Summary Appeal (Rule 9.141) __From the Unemployment Appeals Commission _ A Habeas Corpus Proceeding case Other - State Ifthere are any questions regarding this matter, please do not hesitate to contact this Office. Sincerely,

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MARILYN BEUTTENMULLER
Cle ofthe Court

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I llcreby certify tnat tlle above and foregoing is a true copy of instrument filed in my ofl1ce. MARILYN BEUTTENMULLER, CLERK. DISTRICT COU OF APPEAL OF FLORIDA, TH D TRICT

Per

Deputy Clerk.

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