Facebook link between judge, litigant sinks case
A divided Wisconsin Supreme Court on Tuesday ruled that a judge should not have become Facebook friends with a mother whose custody case he was deciding, altering the calculus of how and when judges should step away from cases.
But it will take time to know whether the decision’s 77 pages of opinions offer guidance or more confusion about when a judge’s actions and relationships amount to harmful bias.
“We conclude that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation,” wrote Justice Rebecca Dallet for the majority in a 4-3 decision. The court ordered a new custody hearing before a different judge.
In dissent, Justice Brian Hagedorn wrote that the majority reached too far and will invite judge shopping.
“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,” Hagedorn wrote.
“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.”
Justices Rebecca Bradley and Daniel Kelly joined all but a few paragraphs and one footnote of Hagedorn’s dissent.
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 contentious 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 entirely 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 Facebook feed.
The majority noted that Bitney could have rejected or ignored Carroll’s request, but instead probably saw offthe-record information about her character and parental fitness she was posting, her “likes” of Bible verses the judge posted on his page and posts by the third parties about domestic violence — an issue in Carroll’s claim for custody — that she liked.
“Carroll was effectively signaling to Judge Bitney that they were likeminded and, for that reason, she was trustworthy.” Dallet wrote. “She was conveying to him off-the-record information about her values, character, and parental fitness — additional evidence (the boy’s father Timothy) Miller did not have the opportunity to rebut.”
Justices Ann Walsh Bradley, Annette
Ziegler and Chief Justice Patience Roggensack joined the majority opinion.
Ann Walsh Bradley concurred to stress she felt even a serious appearance of bias might trigger due process concerns, not just extreme cases that pose “a serious risk of actual bias,” the standard set by the U.S. Supreme Court in 2009.
Ziegler concurred to make it clear she did not agree with Ann Walsh Bradley on that point.
“I write separately to again emphasize that ... due process violations are rare and limited to the most extraordinary and extreme cases,” Ziegler wrote. “But the facts presented here are indeed extraordinary.”
Justice Rebecca Bradley also concurred separately to clarify that judges don’t have to avoid all social media, they just need to be much more cautious about that use than Bitney was.
The majority opinion noted the timing of Carroll’s friend request — after the hearing and briefing in her long-running case — the nature of the things she liked or posted that Bitney likely saw, and the fact that Bitney never disclosed any of it.
It was only brought to Miller’s attention when the guardian ad litem, the person appointed to represent the interests of the child, in the case saw Carroll’s Facebook celebratory posts about Bitney’s ruling in her favor and then realized she and the judge had been friends for some time.
When Miller first asked Bitney to reconsider his ruling because of the appearance of impartiality, Bitney said he has thousands of friends on Facebook and hadn’t been influenced by Carroll’s posts or comments. Further, he didn’t think any reasonable person would question his impartiality based on the Facebook friendship.
Judges are supposed to disqualify themselves from a case if they believe they might be biased. Parties can overcome a presumption of impartiality by presenting evidence of objective bias.
In her concurring opinion, Justice Ann Walsh Bradley also seemed to invite challenge to the court’s decision in 2011, in which it upheld each justice’s right to decide his or her own recusal in any case, even if their peers on the court believe there’s an appearance of bias. She was in the minority in that 4-3 decision.