Timothy W. Miller v. Angela L. Carroll, 2019 WI App 10, petition for review granted, 8/14/19, affirmed, 2020 WI 56; case activity (including briefs)
After a contested hearing between Miller and Carroll about custody and physical placement of their child, and before issuing a decision, the circuit judge accepted a Facebook “friend” request from Carroll. Miller argued the circuit court demonstrated objective bias by doing so. The court of appeals agrees.
The judge accepted Carroll’s “friend” request a few days after the parties submitted written arguments, and the Facebook connection wasn’t disclosed to Miller. Between the time the judge accepted the request and issued his decision, Carroll “liked” 18 of the judge’s Facebook posts and commented on two of his posts, though none of the “likes” or comments related to the litigation between Carroll and Miller. After a ruling in Carroll’s favor—which prompted Carroll to post that “the Honorable Judge has granted everything we requested”—and his learning of the Facebook connection, Miller moved for reconsideration and for the judge to disqualify himself from the case—requests the judge denied. (¶¶3-11).
The judge should have been, shall we say, more “unfriendly.” While a judge may use electronic social media (ESM) just like the rest of (some of) us, “the authorities caution that judges must be careful to avoid creating the appearance of impropriety through their use of ESM. …. Put simply, they reflect the common-sense rationale 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)).
The circuit judge’s conduct here doesn’t hew to that line. Applying the leading state cases addressing objective judicial bias (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), the court of appeals holds the circuit judge’s conduct violated Miller’s due process right to an impartial judge by creating a great risk of actual bias, which in turn resulted in the appearance of partiality:
¶21 First, the time when Judge Bitney and Carroll became Facebook “friends” would cause a reasonable person to question the judge’s partiality. Although Judge Bitney apparently had thousands of Facebook “friends,” Carroll was not simply one of the many people who “friended” him prior to this litigation. Rather, Carroll was a current litigant who reached out to Judge Bitney and requested to become his Facebook “friend” after testifying at a contested hearing, at which Judge Bitney was the sole decision-maker. Judge Bitney then took the affirmative step to accept this “friend” request before issuing his decision in this case.
¶22 This timing creates a great risk of actual bias and a resulting appearance of partiality because, even assuming that a Facebook “friendship” does not denote the type of relationship traditionally associated with the term “friendship,” it is unquestionably evidence of some type of affirmative social connection. …. Carroll’s choice to send a “friend” request to Judge Bitney, combined with Judge Bitney’s choice to accept that request before issuing his decision, conveys the impression that Carroll was in a special position to influence Judge Bitney’s ultimate decision—a position not available to individuals that he had not “friended,” such as Miller.
¶23 Second, the great risk of actual bias and resulting appearance of partiality created by the Facebook connection between Carroll and Judge Bitney is heightened because the connection was not disclosed to any of the other parties or attorneys involved in the case. As Miller notes, this lack of disclosure leads to reasonable concerns regarding Carroll and Judge Bitney’s Facebook connection. Namely, a reasonable person could believe Carroll sent the “friend” request in an attempt to influence Judge Bitney’s decision. And, because the other party had no opportunity to respond to this attempt or to review how Carroll and Judge Bitney interacted through their Facebook friendship, a reasonable person could believe that Carroll did exert, either directly or indirectly, some influence. ….
¶24 Third, and relatedly, Carroll’s sending a “friend” request to Judge Bitney during ongoing litigation raises ex parte communication concerns. An ex parte communication is a one-sided communication between a litigant or their representative and the judge presiding over a case involving the litigant. …. The Facebook connection between Carroll and Judge Bitney involved ex parte communications. Miller was unaware that Carroll communicated to Judge Bitney that she desired to be his Facebook “friend” while their case was pending, and that Judge Bitney communicated back to her that he accepted her request prior to issuing his decision in the case. ….
¶25 Ex parte communications are generally prohibited because they may be initiated—or at least appear to be initiated—in an attempt to influence a judge’s decision. …. In other words, ex parte communications have the potential to erode public confidence and create the appearance of partiality.
¶26 That erosion of public confidence and appearance of impropriety occurred here. In addition to the concerns discussed above, Judge Bitney’s acceptance of Carroll’s “friend” request placed him in a position to view Carroll’s Facebook activity on his newsfeed…. It is undisputed that this activity included “liking” and “sharing” of posts related to domestic violence. We conclude that, because domestic violence was an issue in the pending case, a reasonable person would perceive Judge Bitney’s access to these posts as potentially influencing his decision. Regardless of whether Judge Bitney either viewed these posts or was actually influenced—i.e., whether he was subjectively biased—this perception further establishes the existence of objective bias.
If you’re thinking this is pretty basic, you’d be right.