You’ve surely read about this case in NY Times, the Journal Sentinel, on Wisbar.org or on On Point here or here. A judge’s Facebook friendship with one of the litigants in a child custody case before him created a serious risk of actual bias and resulted in a due process violation. Justice A.W. Bradley filed an interesting concurrence arguing that this decision is at odds with State v. Henley, 2011 WI 67, 338 Wis. 2d 610, 802 N.W.2d 175, which readers may recall, concerned a motion to disqualify then Justice Roggensack.
Here’s a recap of the facts:
¶2 In this case, a circuit court judge accepted a Facebook “friend request” from the mother in a custody dispute after a contested hearing, but before rendering a decision. In the course of their 25-day Facebook “friendship,” the mother “liked” 16 of the judge’s Facebook posts, “loved” two of his posts, commented on two of his posts, and “shared” and “liked” several third-party posts related to an issue that was contested at the hearing. The judge never disclosed the Facebook friendship or the communications, and he ultimately ruled entirely in the mother’s favor.
¶3 After discovering the Facebook friendship, the father moved the circuit court for reconsideration, requesting judicial disqualification and a new hearing. At the reconsideration hearing, the judge admitted to the Facebook interactions between himself and the mother. However, he denied the motion and claimed that he was impartial because he had already decided on his ruling prior to accepting her friend request.
The court of appeals unanimously reversed the circuit court judge. And in a splintered opinion, SCOW affirmed. Justice Dallet wrote the majority, which included Roggensack, A.W. Bradley and Ziegler. A.W.B. and Ziegler each filed separate concurrences. Hagedorn wrote a dissent joined by RG. Bradley and Kelly.
The judge denied that he was subjectively biased, so the case turned on whether he was objectively biased. The majority, applying Caperton v. A.T. Massey Coal Co., 566 U.S. 868 (2009) verbatim, found that he was. According to Caperton, “‘[d]ue process requires an objective inquiry’ into whether the circumstances ‘would offer a possible temptation to the average . . . judge . . . lead him not to hold the balance nice, clear and true.'” Opinion, ¶24 (quoting Caperton, 566 U.S. at 885).
The majority found many of the facts in this case extreme. Among other things, the mother “liked” and “loved” the judge’s posts on prayers and Bible verses. She commented on his posts about his knee surgery, sending him prayers and wishing him well. She shared posts regarding domestic violence with him. And guess what? She was accusing her ex-husband of domestic violence. The majority said:
She was conveying to him off-the-record information about her values, character, and parental fitness–additional evidence Miller did not have the opportunity to rebut. Under a “realistic appraisal of psychological tendencies and human weaknesses,” this off-the-record information about Carroll, created a serious risk of actual bias. Opinion, ¶31 (citing Caperton, 556 U.S. at 883).
Justice A.W. Bradley wrote separately to highlight the role that the appearance of bias could play in the due process analysis–a point the majority did not adopt. She also noted that in Henley, where the defendant moved to disqualify Justice Roggensack from the case, a majority of SCOW claimed that it was “powerless” to overturn her decision not to recuse herself. Read more re Henley here. Abrahamson, Crooks and A.W.B. dissented from that decision. So, A.W.B. asks, how is that the majority can overturn the judge’s refusal to disqualify himself in this case? No justice answered.
Our prior posts called this a straightforward case of objective bias. But the dissent takes the opposite view. Aside from the fact that social media was involved, Hagedorn says “the facts before us are rather ordinary in the types of risks and potential conflicts at issue. I conclude the circumstances here are not so extreme as to violate Miller’s due process right to an impartial tribunal. “Dissent, ¶106. He warns: “today’s decision will invite ever more Constitution-based recusal claims. And with it, faith in the judiciary will be undermined, not strengthened. ” Dissent, ¶126.
Some would say faith in the judiciary was lost with Henley and State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863. The majority is trying to to restore it.