Judge who sent Facebook friend request to wife in pending divorce proceeding should have been disqualified

facebook-friend-request-446x298While a divorce case was pending, the judge overseeing the case sent the wife a Facebook friend request. The wife did not accept the request. Thereafter, the judge entered a final judgment that was more favorable to the husband. After the wife found out about other cases in which the judge had reached out to litigants through social media, she filed a motion to disqualify the judge. The judge refused to disqualify herself.

The wife sought review with the appellate court. On appeal, the court reversed and remanded, holding that the judge should have disqualified herself:

The “friend” request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the “friend” request.

Moreover, the court found the problem of friending a party in a pending case “of far more concern” than a judge’s Facebook friendship with a lawyer. Forbidding judges and counsel to be Facebook friends, especially in smaller counties with tight-knit legal communities, would be unworkable. But with a friend request from the judge, a party has a “well founded fear” of not receiving a fair and impartial trial.

Chace v. Loisel, — So.3d —, 2014 WL 258620 (Fla.App. 5 Dist. January 24, 2014)

Independent contractor’s email was key factor in finding he had apparent authority to bind principal

Defendant petroleum producer hired an independent contractor to negotiate oil and gas leases on its behalf. One such lease was with plaintiff, which the independent contractor negotiated in large part using the email account defendant issued to him. After the price of oil dropped, defendant would not pay on the lease. When plaintiff sued, defendant claimed its independent contractor did not have the authority to bind defendant to the lease in the first place.

The trial court disagreed with defendant’s argument that its independent contractor did not have apparent authority to bind the principal-defendant. Defendant sought review. On appeal, the Court of Appeals of Texas affirmed.

It held that a reasonably prudent person would have believed the independent contractor possessed the authority to contract on defendant’s behalf because defendant acted with such a lack of ordinary care as to clothe the independent contractor with indicia of authority.

Among the most important evidence concerning these indicia of authority was the fact that the independent contractor communicated using the email account under defendant’s domain name. The court noted that another court had held that giving someone a company email address does not, in and of itself cloak that user with carte blanche authority to act on behalf the company. “Were this so, every subordinate employee with a company e-mail address—down to the night watchman—could bind a company to the same contracts as the president.” CSX Transp., Inc. v. Recovery Express, Inc., 415 F.Supp.2d 6, 11 (D.Mass.2006)

But in this case, defendant knew of the independent contractor’s negotiations by email, and did nothing to disclaim that he lacked authority to bind defendant to the lease.

PanAmerican Operating, Inc. v. Maud Smith Estate, — S.W.3d —, 2013 WL 3943091 (Tex.App.-El Paso, July 24, 2013)

Are network neutrality and freedom from government surveillance incompatible?

The FBI would like to see Congress amend CALEA (the Communications Assistance for Law Enforcement Act). FBI director Mueller recently testified that his agency wants legislation that will assure internet service providers “have the capability and the capacity to respond” to court orders allowing the eavesdropping on a person’s internet communications.

CALEA currently requires that telecommunications companies expeditiously make their equipment, facilities, and services available to the government for wiretapping. Presumably, federal law enforcement would like to see this expanded to bind ISPs and other non-telecom entities.

We see a similar division of the world into telecom and non-telecom in the discussion of network neutrality. Many in favor of network neutrality laud the FCC’s efforts to bring ISPs into the agency’s scope of power to help ensure those providers of internet infrastructure do not discriminate on the basis of content source.

But do you see the potential problem here? If an individual is in favor of network neutrality and also wary of overzealous government wiretapping, he or she must be careful to not allow advocacy of federal power in one arena (enforcing network neutrality) to bleed over, even by analogy, to advocay of federal power in the other arena (surveillance). Participants in these discussions are advised to keep the ideological origins of the respective positions in mind.

1 2 3 4 11 12 13