Judge’s Facebook Friendship With Litigant Violated Due Process

A divided Wisconsin Supreme Court has held that a judge’s  undisclosed Facebook interaction with a litigant amounted to a violation of due process. 

This case presents an issue of first impression: an allegation of judicial bias arising from a circuit court judge’s undisclosed social media connection with a litigant.

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.

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 reversed the circuit court’s denial of the motion for reconsideration and remanded the case with directions that it proceed before a different circuit court judge.

We conclude that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation. Accordingly, we affirm the court of appeals.

The “appearance of impropriety” standard as a basis to recuse did not command a majority. 

The underlying case involved a custody dispute

Carroll sought sole legal custody, primary physical placement, child support payments, and a change in residence. Carroll’s motion and supporting affidavits alleged that Miller engaged in acts of domestic violence against Carroll, and included a copy of a domestic abuse injunction that Carroll obtained that same month. Carroll also alleged that Miller failed to adequately parent and discipline Bruce. Miller vigorously opposed the motion and disputed the allegations of domestic violence. The case was assigned to Judge Michael Bitney.

Judge Bitney conducted a highly contested two-day evidentiary hearing over June 7-8, 2017, that included the testimony of 15 witnesses.

Her friend request came after the hearing

During the 25 days between Judge Bitney’s acceptance of Carroll’s friend request and his issuance of a written decision entirely in her favor, Carroll engaged with and “reacted to” at least 20 of Judge Bitney’s Facebook posts.  The bulk of Carroll’s “reactions” to Judge Bitney’s posts were “likes” to prayers and Bible verses that he posted.

Additionally, Carroll “loved” one of Judge Bitney’s posts reciting a Bible verse and another post regarding “advice” to children and grandchildren.  Carroll also commented on two of Judge Bitney’s posts related to his knee surgery: “Prayers on a healthy recovery Judge!!” and “Hope u get some rest and feel better as the days go on.” Judge Bitney would have received a notification from Facebook each time Carroll reacted to one of his posts. Judge Bitney also would have received a notification from Facebook each time Carroll commented on one of his posts.

In addition to “reacting” to and engaging with at least 20 of Judge Bitney’s posts, Carroll posted on her Facebook page about the topic of domestic violence, which was at issue in the contested hearing.

The friendship was discovered by the guardian ad litem

While viewing Carroll’s post, the GAL inadvertently discovered that Carroll was Facebook friends with Judge Bitney.  The GAL indicated that she “felt a duty” to immediately alert Miller’s counsel of the Facebook friendship and Carroll’s recent Facebook post.

The court

We begin with background information on what a Facebook “friendship” entails. We next articulate the standard for resolving when the probability of actual bias rises to the level of a due process violation, and apply that analysis to the facts of this case.

…We presume that Judge Bitney acted fairly, impartially, and without prejudice. See Herrmann, 364 Wis. 2d 336, ¶24. We consider the totality of the circumstances and conclude that Miller has rebutted this presumption by showing “a serious risk of actual bias.” Caperton, 556 U.S. at 884.18 These circumstances include: (1) the timing of the Facebook friend request and Judge Bitney’s affirmative acceptance; (2) the volume of Carroll’s Facebook activity and likelihood Judge Bitney viewed her posts and comments; (3) the content of the Facebook activity as it related to the context and nature of the pending proceeding; and (4) Judge Bitney’s lack of disclosure.

Judge Ann Walsh Bradley concurred

Although I join the majority opinion, I write separately because its analysis fails to discuss the role that appearance of bias can play in the due process analysis. Additionally, it neglects to inform the reader that its analysis is at odds with this court’s “hands-off” approach in certain due process challenges. The following provides the rest of the story…

In sum, I write separately to call attention to the critical role the appearance of bias can play in the due process analysis. I further write to address the impact of the present case on recusal practice in this court and statewide.

As did Justice Annette Ziegler

I join the majority because it does not adopt the standard suggested in Justice Ann Walsh Bradley’s concurrence. Rather, the majority opinion is consistent with the language of the United States Supreme Court in Caperton, my writing (joined by two other justices) in Herrmann, and my writing in Allen.

…I also write separately, in light of this case, to caution the Wisconsin bench about the hazards of electronic social media, and Facebook in particular. I caution judges to avoid using social media such as Facebook unless significant safeguards are in place to avoid a situation like that present here. If a judge chooses to participate in social media, then additional——not fewer——precautions must be taken. An appearance of impropriety is not itself sufficient to constitute a due process violation. But more is present here. As a result, I respectfully concur.

There was more than an appearance issue

Judge Bitney affirmatively chose to let Carroll, a party to a highly contested child custody hearing over which he presided, become his Facebook friend. Judge Bitney personally and affirmatively accepted her friendship request. Even worse, since Carroll’s personal life, character, and parental fitness were relevant to the custody dispute, Judge Bitney affirmatively accepted access to off-record and relevant facts about Carroll when he accepted her friend request. Judge Bitney did not disclose his Facebook friendship with Carroll. He did not disclose any of their Facebook interactions. Judge Bitney’s conduct in allowing a party such access in this case was not just improper. It was extraordinary.

She advocates for careful use of social media by judges

I strongly urge my colleagues on the bench to weigh the advantages and disadvantages of using electronic social media like Facebook.

…I also write separately, in light of this case, to caution the Wisconsin bench about the hazards of electronic social media, and Facebook in particular. I caution judges to avoid using social media such as Facebook unless significant safeguards are in place to avoid a situation like that present here. If a judge chooses to participate in social media, then additional——not fewer——precautions must be taken. An appearance of impropriety is not itself sufficient to constitute a due process violation. But more is present here.

BRIAN HAGEDORN, J. (dissenting).

For most of American history, the United States Constitution was understood to say close to nothing about judicial recusal. This area of law, with a few extremely narrow exceptions, was left to state regulation and oversight. But as it has in many areas, the judiciary began to expand the constitutional footprint, inch by inch, and lately, step by step. Today’s decision continues the march away from the original public meaning of our Constitution, and greatly risks merging ordinary judicial recusal questions with the narrow proscriptions of the Due Process Clause.

…The record before us doesn’t tell us much, but what it does tell suggests this is not a needle-in-the-haystack judicial recusal case; it is quite ordinary. The thrust of the recusal argument rests on the fact that Judge Bitney accepted a Facebook friend request from a party while a case was pending, and did not disclose it. But that’s rather sparse evidence from which to conclude a certain ethics violation occurred, much less a due process problem.

Further

It is important to remember that judges are not isolated members of the community. They read the news. They receive unsolicited and stray comments about cases or parties. Judges may, particularly in smaller communities, know a party’s family history from another case, or have heard stories from judicial colleagues about a party before them. Judges may go to church with parties before them, volunteer with the local Rotary chapter, or be former high school football teammates with a party’s father. Judges are people too. And it is precisely these sorts of ordinary, and generally unproblematic, life interactions that undergird the strong presumption that judges are impartial. The very concept of an impartial judiciary depends upon the belief that judges can manage through their biases, news feeds, political supporters, former co-workers, and neighbors to render decisions without fear or favor to any party.

Justice Hagedorn invokes Chief Justice Roberts’s parade of horribles from the Caperton dissent

Although this court must follow Caperton, it has no constitutional warrant to expand it. The more this court takes ordinary recusal questions and turns them into constitutional questions, the more we will see these claims. And the more we see these claims, the more recusal will become a litigation weapon (after all, a due process violation is structural error). And the more recusal becomes a litigation weapon, the more damage it does to the judiciary as a whole. The presumption that judges will follow the law regardless of their personal views and regardless of their associations is quickly being replaced by the presumption that judges are frail, impressionable, and not to be trusted. Make no mistake, today’s decision will invite ever more Constitution-based recusal claims. And with it, faith in the judiciary will be undermined, not strengthened. With each new blessing of a new “just as bad as Caperton” recusal claim, the judiciary continues its constitutional takeover of new areas of law that the people, through their written Constitution, left to themselves.

Nothing in the original public meaning of our Constitution nor in Supreme Court precedent requires us to transform Judge Bitney’s social media misstep into a constitutional controversy. I respectfully dissent.

I am authorized to state that Justices REBECCA GRASSL BRADLEY and DANIEL KELLY join this dissent except for footnote 1 and ¶¶120-24, but they do join footnote 3.

The lineup of the court’s 77 page opinion 

DALLET, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., and ZIEGLER, J., joined; and in which ANN WALSH BRADLEY, J., joined except for footnote 18. ANN WALSH BRADLEY, J., filed a concurring opinion. ZIEGLER, J., filed a concurring opinion. DALLET, J., filed a concurring opinion, in which HAGEDORN, J., joined. HAGEDORN, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, and KELLY, JJ., joined except for footnote 1 and ¶¶120-24, but do join footnote 3.

The ABA Journal reported on the circuit court decision. (Mike Frisch)