Issues (based on Carroll’s Petition for Review)
- Does a judge’s acceptance of one party’s Facebook “friend” request by itself overcome the presumption that a judge is fair, impartial, and capable of ignoring any biasing influences, given the absence of any allegation of subjective bias or of facts showing the judge treated the other party unfairly, and when there were no electronic social media (“ESM”) communications between the judge and the party regarding the merits of the case?
- Does the fact a party “liked” a judge’s Facebook posts unrelated to the pending litigation or commented on a Facebook post unrelated to the pending litigation constitute an ex parte communication between a party and a judge?
As Carroll’s petition stresses, the basic issue in this case—a claim of judicial bias arising from a judge’s use of electronic social media—is one of first impression in Wisconsin. The standard for determining whether a judge is objectively biased is well-established in the Wisconsin cases (which rely in turn on U.S. Supreme Court decisions). See State v. Gudgeon, 2006 WI App 143, 295 Wis. 2d 189, 720 N.W.2d 114; State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385; and State v. Herrmann, 2015 WI 84, 364 Wis. 2d 336, 867 N.W.2d 772. As we said in our previous post on the case, the court of appeals did what was a straightforward application of our case law to the facts of the case. So in many ways the issue on review boils down to whether they got the conclusion right. It’s also true, though, that the supreme court’s decision should clarify application of the objective bias standard to judges’ use of electronic social media, a phenomenon we’re likely to see with more frequency.
Other jurisdictions have wrestled with this issue. Carroll notes ethics opinions from a number of jurisdictions stating that a judge’s mere “friending” of someone (lawyer or litigant) on Facebook doesn’t compromise a judge’s impartiality, largely because social media “friendship” isn’t like the old analog version of friendship. Other jurisdictions, however, take a stricter approach, holding that a social media “friendship” suggests the party is in a special position to influence the judge, and that public trust in the impartiality and fairness of the judicial system is so important that it is imperative to err on the side of caution. See Cynthia Gray, Judges and Social Networks, 34 Judicial Conduct Reporter No. 3 (Fall 2012) at 1, 5-6.
And even if “friending” by itself isn’t automatically a problem, the court of appeals didn’t rely solely on the judge’s act of “friending” Carroll. As the court of appeals said, it didn’t need to determine “whether a bright-line rule prohibiting the judicial use of ESM is appropriate or necessary” (¶2); instead, it endorsed the conclusion that “‘[a] judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must … avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.’” (¶16, quoting ABA Formal Ethics Opinion 462 at 1 (2013)). It just viewed the facts of this case as creating an appearance of impropriety, given the timing and acceptance of the “friend” request (after Carroll testified at a contested hearing at which the judge was the sole decision-maker and before the judge issued his decision), the fact the “friendship” wasn’t disclosed to Miller, and Carroll’s “liking” and “sharing” of internet posts relating to domestic violence (a background issue in the case), which shared and liked posts could have been viewed by “friends” like the judge. (¶¶21-26). And since Miller was making a claim of based on the appearance of bias, the absence of evidence of either subjective bias or actual bias isn’t fatal to his claim. (¶¶13, 20 n.8).
As for the ex parte communication issue, as Gray says, “[t]he ease of communicating on social networks should not cause judges to lower their guard against initiating or receiving ex parte communications about a case.” Judges and Social Networks at 8. It appears undisputed that there was no direct communication between Carroll and the judge about the case, and the court of appeals didn’t find there was ex parte communication in violation of SCR 60.04(1)(g). Instead, it cited the purposes behind the banning ex parte communication to explain why an objectively reasonable person would be concerned about the judge’s impartiality under the circumstances in this case. (¶¶24-27). Whether it was proper to consider that concern in the absence of bona fide improper ex parte communication will likely be an important part of the supreme court’s ultimate ruling regarding judges’ use of social media. Stay tuned (and follow us on Facebook for our latest updates!).