Trial Witness's Posting of Birthday Greeting on Judge's Facebook Page Was Not a Ground for Judge's Recusal

Onnen v. Sioux Falls Independent School District #49-5, No. 25683, 2011 SD 45 (Aug. 3, 2011)

The Supreme Court of South Dakota held that the posting of a birthday greeting on a trial judge’s Facebook page by a witness was not a prohibited ex parte communication warranting recusal of the judge because the post did not concern a pending or impending proceeding.

Termination of Plaintiff’s Employment

As explained by the court, plaintiff Matt Onnen was a registrar employed by Southeast Technical Institute, a public educational institution in Sioux Falls, South Dakota. As registrar, Onnen was responsible for ensuring that students met all graduation requirements before they received a degree. However, school district officials learned that several students had received degrees from the Institute even though they had not satisfied all graduation requirements. The district investigated the matter and determined that 28 students had received degrees despite having failed to meet the requirements. Moreover, between 40 and 50 students who should have received degrees or diplomas had not received them. In addition, more than 250 students had not been verified for graduation—a task which Onnen should have completed months earlier. Based upon these facts, the school district terminated Onnen’s employment, and the Sioux Falls School Board affirmed that decision.

Earlier Proceedings

Onnen appealed the decision of the school district and the board to the Circuit Court of the Second Judicial District of Minnehaha County. He argued that he had been wrongfully terminated and that the procedure followed by the school district in terminating his employment was illegal. Circuit Judge William J. Srstka held a three-day trial and affirmed the decision, finding that the school district’s action was neither arbitrary nor capricious, nor an abuse of discretion. Onnen moved for a new trial and for Judge Srstka’s recusal from hearing the motion for a new trial. Presiding Judge Kathleen Caldwell heard the recusal motion and found that it had no merit. Subsequently, Judge Srstka heard the motion for a new trial and denied the motion. Onnen then appealed to the South Dakota Supreme Court.

No Error in Trial Court’s Finding That Termination for Cause Was Supported by Evidence

On appeal, the state supreme court held that the circuit court did not err in upholding the school district’s termination of Onnen’s employment. The court observed that Onnen’s employment contract permitted the district to terminate his employment for cause and required him “to devote his utmost skill to the performance of the duties to be assigned by the District . . . and in all respects to faithfully comply with, obey and enforce all of the policies, rules and regulations of the District.” Onnen at ¶ 13. Because of Onnen’s admitted failures and inconsistencies in the performance of his duties, the court found that Judge Srstka’s findings were supported by the evidence.

No Abuse of Discretion in Trial Court’s Denial of Request for Recusal

Onnen’s motion for recusal was based upon two alleged sources of bias: a supposed “ex parte communication” with the judge by Jim Rokusek, Onnen’s former supervisor at the Southeast Technical Institute, and the fact that the judge’s sister-in-law and another unidentified relative worked as employees of the district. The alleged ex parte communication occurred when Rokusek “posted a message on Judge Srstka’s Facebook page wishing him a happy birthday in Czech.” Onnen at ¶ 18. The posting occurred while Onnen’s litigation was pending but before Rokusek testified.

In the circuit court, Judge Caldwell concluded, among other things, that Onnen’s “allegations regarding Facebook usage or distant relatives . . . do not rise to a level that would require recusal of a judge from hearing a case.” Id. at ¶ 19. The state supreme court agreed. It explained that pursuant to Canon 3(B)(7) of the South Dakota Code of Judicial Conduct, a “judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding.”

The state supreme court found that Rokusek’s message on Judge Srstka’s Facebook page did not constitute a prohibited ex parte communication because the message did not concern “a pending or impending proceeding.” Id. at ¶ 21. Moreover, “where an ex parte communication is not invited or initiated by the judge, reversible error occurs only if the adverse party is prejudiced by an inability to rebut the facts communicated and if improper influence appears with reasonable certainty.” Id. at ¶ 22 (quoting State v. Thorsby, 757 N.W.2d 300, 304 (S.D. 2008)). Because Judge Srstka did not invite or initiate Rokusek’s Facebook post, and because the post did not relate to any facts regarding the case, the court held that Rokusek’s message would not be a ground for reversal even if it had been an ex parte communication.

The court also found no basis for recusal resulting from the employment of relatives of Judge Srstka by the school district. The court observed that under Canon 3(E)(d)(iii) of the South Dakota Code of Judicial Conduct, a judge should recuse himself if “the judge or the judge’s spouse, or a person within the third degree of relationship to either of them or the spouse of such a person . . . is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.” However, “the decision to preside over a case is addressed to the sound discretion of the trial judge.” Hickmann v. Ray, 519 N.W.2d 79, 80 (S.D. 1994). In the instant case, the court emphasized that Judge Srstka unequivocally stated that he was not affected by Rokusek’s casual greeting or by his sister-in-law’s employment as a kindergarten teacher. Moreover, the court pointed out that “Judge Srstka’s sister-in-law was one of approximately 3,500 District employees and not in a management position. Onnen has not shown how this connection could even be considered de minimis.” Onnen at ¶ 25. Accordingly, the court affirmed the circuit court’s judgment in all respects.