925 N.W.2d 580
Wis. Ct. App.2019Background
- Miller and Carroll had a 2011 stipulation awarding joint legal custody and shared physical placement of their son; Carroll moved in 2016 to modify custody and obtain child support.
- A contested evidentiary hearing occurred on June 7–8, 2017 before Judge Michael Bitney; Carroll testified alleging a pattern of domestic abuse by Miller; the judge took the matter under advisement.
- After the parties filed written arguments, Carroll sent a Facebook friend request to Judge Bitney; he accepted the request three days after briefs were filed and before issuing his written decision; this connection was not disclosed to Miller or counsel.
- Between acceptance and the decision, Carroll "liked" and commented on multiple of the judge's Facebook posts and shared third-party posts about domestic violence; the judge did not reply but later admitted he may have read Carroll's posts.
- The court granted Carroll sole legal custody, primary physical placement, permission to move, and ordered further filings to set child support; the guardian ad litem discovered the Facebook friendship and notified counsel.
- Miller moved for reconsideration and disqualification, arguing the undisclosed Facebook connection created the appearance of partiality; the judge denied relief, and Miller appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an undisclosed Facebook "friendship" between a judge and a litigant during pending proceedings gives rise to objective judicial bias (appearance of partiality) | Miller: Acceptance of the friend request during pendency created a social connection and potential ex parte contact that a reasonable person would view as a great risk of actual bias | Carroll/Judge: Judicial use of ESM alone doesn't show bias; no subjective bias shown and friendship did not affect the decision | Court reversed: undisclosed Facebook connection during pending litigation created the appearance of partiality and rebutted the presumption of impartiality; remand for proceedings before a different judge |
Key Cases Cited
- State v. Goodson, 320 Wis.2d 166 (Wis. Ct. App. 2009) (sets out subjective/objective bias framework and presumption of judicial impartiality)
- State v. Gudgeon, 295 Wis.2d 189 (Wis. Ct. App. 2006) (appearance-of-partiality standard—reasonable person test)
- In re Murchison, 349 U.S. 133 (U.S. 1955) (due process requires an impartial judge; quoted standard about holding the balance "nice, clear, and true")
- State v. Herrmann, 364 Wis.2d 336 (Wis. 2015) (when facts reveal a great risk of actual bias, presumption of impartiality is rebutted)
- State v. Thomas, 376 P.3d 184 (N.M. 2016) (discusses judicial social-media use; cautions friending and online activity can create appearance of impropriety)