Court considers judge’s Facebook friendship
Did Facebook interactions between a judge and a mother whose custody case he was deciding deprive the father of a fair shake in the matter?
The Wisconsin Supreme Court wrestled with that question and its offshoots on Monday, in a case that could set new limitations on judges’ use of a range of social media, or pass that task on to a separate task force.
Six of the seven justices weighed in with questions during the oral arguments, some seemingly in support of a new custody hearing by a different judge and some concerned about invading judges’ discretion in assessing their own partiality. A decision is not expected for months.
In 2016, a mother sought to gain full custody of her son after five years of shared custody with the boy’s father. Barron County Circuit Judge Michael Bitney presided over a two-day hearing in 2017, then asked for briefs.
Three days after the briefs were filed, Bitney accepted a Facebook friend request from the mother,
Angela Carroll. Between then and when he decided the case in her favor, she liked 18 of the judge’s posts and commented on two more. She also liked some others’ posts about domestic violence, things that could then appear in Bitney’s feeds. Bitney didn’t like or comment on Carroll’s posts, though he didn’t deny reading them.
The day Bitney issued his written order, Carroll wrote about it on Facebook, and that led the guardian ad litem for the boy to discover the Facebook link to the judge. The boy’s father, Timothy Miller, then asked Bitney to reconsider his ruling because the Facebook friendship with Carroll gave an appearance of impartiality. Bitney disagreed and denied the request.
The Court of Appeals reversed and ordered a new hearing before a different judge. The Supreme Court then agreed to hear Carroll’s petition.
Carroll’s attorney, Brandon Schwartz, argued that the Court of Appeals decision “shredded the presumption that judges act impartially.” He said the mere appearance of impartiality is not enough to force a new hearing without some evidence that Bitney was in fact biased for Carroll.
Schwartz equated the Facebook exchanges to a judge having small talk with a party at the church they both attend. He emphasized repeatedly that none of the comments or likes had anything to do with Carroll’s case.
Prohibiting judges from being Facebook friends with people in their communities who might appear before them would turn judges into hermits, Schwartz warned.
Miller’s attorney, Terry Moore, said that’s not likely to happen if the court affirms the Court of Appeals. He argued that it was the particular facts that amounted to objective bias in this case. He said any reasonable person would think Bitney was not impartial.
Those facts included that Carroll sent the judge a friend request while he was actively deciding the case, that he accepted it, that she posted things suggesting she was a good mother, liked Bitney’s posts about the Bible, the American flag and as soon as Bitney ruled, Carroll said she was leaving Facebook. Moore said Bitney should have refused Carroll’s Facebook request, then told the parties about it as soon as possible.
Justice Rebecca Bradley noted that judges are elected and that some may routinely accept all Facebook friend requests. If that were the case for Bitney, Moore said, he likely would have said that. Bitney says he had basically decided the case before he got Carroll’s Facebook request.
Schwartz, attorney for the mother, argued that no reasonable person, viewing the same facts, could possibly believe the Facebook interactions with Carroll had any influence on his decision in her favor.
Justice Brian Hagedorn asked if Bitney’s conduct, while it might transgress an ethical rule or statute, really rose to violate Miller’s due process rights without more evidence of actual influence. He cited Chief Justice John Roberts’ dissent in a major U.S. Supreme Court decision that a judge should recuse herself not only for actual bias, but when extreme facts create “probable bias.”
The Wisconsin chapter of the American Academy of Matrimonial Lawyers filed a friend of the court brief. It urged justices to decide the case very narrowly and leave the question of social media rules for judges to a task force or committee.
It specifically asked the court not to conclude that any social media interaction with a party to a case amounts to generally prohibited ex parte communication, communication with just one side in a lawsuit, without notice to the others.