“An extra ‘remember me:’”  Serious risk of actual bias on Facebook

Finding that “the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation,” the Wisconsin Supreme Court held that a serious risk of actual bias had been created in a child custody dispute when, while his decision was pending following a contested hearing, the trial judge accepted a Facebook “friend request” from the mother; she interacted with him, including “liking,” “loving,” or commenting on at least 20 of his Facebook posts; and she “shared” and “liked” several third-party posts about domestic violence, which was an issue in the case.  In re Paternity of B.J.M., 944 N.W.2d 542 (Wisconsin 2020).  The Court affirmed the decision of the court of appeals reversing the trial judge’s denial of a motion for reconsideration of his decision in the mother’s favor and remanding the case with directions that it proceed before a different judge.

5 years after Timothy Miller and Angela Carroll stipulated to joint legal custody and shared physical placement of their minor son, Carroll filed a motion seeking sole legal custody, primary physical placement, child support payments, and a change in residence.  She alleged that Miller engaged in domestic violence against her and failed to adequately parent and discipline their son.  Miller opposed the motion and disputed the allegations of domestic violence.

On June 7-8, 2017, Judge Michael Bitney presided over a highly contested evidentiary hearing that included 15 witnesses.  On June 16, the parties filed briefs.

3 days after the briefs were filed, Carroll sent the judge a “friend request” on Facebook.  The judge “accepted” Carroll’s request.

On July 14, the judge issued a written decision in favor of Carroll.

During the 25 days between the judge’s acceptance of Carroll’s friend request and his decision, Carroll “engaged with and ‘reacted to’ at least 20” of the judge’s Facebook posts.  16 of her reactions were “likes” to prayers and Bible verses that he posted.  She “loved” one of his posts reciting a Bible verse and a second regarding “advice” to children and grandchildren.  In response to 2 of his posts about his knee surgery, she posted:  “Prayers on a healthy recovery Judge!!” and “Hope u get some rest and feel better as the days go on.”

In addition, Carroll posted on her Facebook page about domestic violence.  She posted that she was “interested in” attending a “Stop the Silence Domestic violence awareness bike/car Run.”  She “liked” a third-party post related to domestic violence and reacted “angry” to a third-party post entitled, “Woman dies two years after being set on fire by ex-boyfriend.”  She “shared” a third-party post related to domestic violence.

The same day as the judge’s decision, Carroll posted on her Facebook page:

My boys and a [sic] I have been given a chance at greatness, peace, and safety.

The Honorable Judge has granted everything we requested.  I’m overwhelmed with emotions and as bitter sweet as this is, we will have better from here on out. . . .

Viewing that post, the guardian ad litem appointed to the case discovered that Carroll and the judge were Facebook friends and immediately told Miller’s counsel.

Miller filed a motion for reconsideration of the judge’s decision in favor of Carroll.  The judge confirmed his Facebook friendship with Carroll, but denied the motion, asserting that he had no bias and that no “reasonable person in the circumstances of Mr. Miller or others . . . would seriously call into question the Court’s objectivity or impartiality.”  The judge emphasized that he “did not like any posts, respond to any posts, or conduct any communication ex parte or otherwise with Ms. Carroll, other than simply accepting the Facebook friendship request.”  He also claimed that when he accepted Carroll’s friend request he had already “decided how [he] was going to rule, even though it hadn’t been reduced to writing.”  The judge did not deny seeing Carroll’s reactions, comments, or posts on Facebook.

Although noting that it presumed that the judge acted fairly, impartially, and without prejudice, the Court concluded that the father had “rebutted this presumption by showing ‘a serious risk of actual bias.’”  The Court considered:  “(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.”

With respect to the timing of the Facebook friendship, the Court explained:

Although Judge Bitney had “thousands” of Facebook friends, Carroll was not an established “friend.”  Instead, she was a current litigant who requested to be Judge Bitney’s friend only after she testified at a contested evidentiary hearing in which he was the sole decision-maker.  Judge Bitney had presided over the case since August of 2016; yet, Carroll friended him after he heard the evidence and the final briefs were submitted, but before he rendered a decision.  The timing of the friend request implied that Carroll wanted to influence Judge Bitney’s decision on her motion to modify legal custody, physical placement, and child support.

The Court emphasized that the judge had taken “the affirmative step of accepting Carroll’s ‘friend request’ prior to issuing a written decision on her motion” and that, by accepting the request, the judge “accepted access to off-the-record facts that were relevant to the dispute, namely information regarding Carroll’s character and parental fitness.”  The Court noted that, “in an affidavit filed with the motion for reconsideration, Miller’s sister asserted that Carroll made a ‘purposeful switch in [her] Facebook persona to support her position in the custody dispute,’ including changing her pictures and posts ‘from party type pictures and posts to family pictures and posts about children and family.’”  The Court concluded that “Carroll’s request, and Judge Bitney’s acceptance, put Carroll in a different position than Miller and caused an improper asymmetry of access.”

With respect to the likelihood that the judge would have seen Carroll’s Facebook activity, the Court noted that Carroll had engaged with and “reacted to” a significant number of the judge’s Facebook posts and that the judge would have received a Facebook notification for each of Carroll’s reactions and comments.  It also noted that the judge could have but did not deny seeing Carroll’s reactions, comments, shares, and reactions.  The Court recognized that the record did not include conclusive evidence that the judge read any of Carroll’s posts, but emphasized that “evidence to the contrary is notably absent.”

With respect to the social media contacts in the context of the litigation, the Court noted that Carroll and Miller had the same opportunity to portray themselves in the best light at the hearing but that “Carroll was provided with additional opportunities to do this for 25 days through her access to Judge Bitney via Facebook.”  It explained

The Facebook activity, including 18 “reactions” and two comments, was relevant to the decision-making process in a proceeding like this one, where Carroll’s character, fitness, and credibility were paramount.  Carroll was allowed the opportunity to give Judge Bitney additional information about herself and an extra “remember me” almost 25 different times during the time period when the matter was under advisement, all unbeknownst to Miller.  By reacting to and engaging with Judge Bitney’s posts, Carroll was effectively signaling to Judge Bitney that they were like-minded and, for that reason, she was trustworthy.  She was conveying to him off-the-record information about her values, character, and parental fitness — additional evidence Miller did not have the opportunity to rebut.  Under a “realistic appraisal of psychological tendencies and human weaknesses,” this off-the-record information about Carroll, created a serious risk of actual bias. . . .

The Court also stated that “a portion of Carroll’s Facebook activity was related to her main allegation against Miller at the contested hearing:  domestic violence” but that, “unlike the information presented at the hearing, Miller was unaware that Judge Bitney had access to this off-the-record information.  Had Carroll sent Judge Bitney a letter containing a domestic violence article, which he then read, he undoubtedly would have had to disclose that information to the parties.”

Finally, the Court emphasized the judge’s failure to disclose “at any point, in any way or form.”

Judge Bitney could have initially ignored or denied Carroll’s friend request and disclosed the request to the parties.  He could have also disclosed the Facebook friendship when he received notification of Carroll’s reactions to his posts, unfriended Carroll on Facebook, or changed his security settings to hide her posts from appearing on his News Feed.  Instead, Judge Bitney failed to disclose the friendship or other Facebook activity, and the friendship was discovered only after Judge Bitney issued his decision.  Because of Judge Bitney’s lack of any means of disclosure, Miller was unable to review the interactions between Judge Bitney and Carroll and have an opportunity to refute what Judge Bitney might have seen Carroll post or share.

Thus, the Court held:  “The totality of the circumstances and the extreme facts of this case, viewed objectively, rise to the level of a serious risk of actual bias, which rebuts the presumption of Judge Bitney’s impartiality.”  The Court also held that, “the serious risk of actual bias is a structural error” and, therefore, that the judge’s decision should be reversed and the matter assigned to a different judge on remand.

Although the Court applied the “serious risk of actual bias” that is the constitutional standard from Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), the factors identified by the Court are also relevant to an “appearance of impartiality” analysis under the code of judicial conduct; if the circumstances of a case are significant enough to require disqualification under the due process clause, they would also raise enough reasonable questions to require disqualification under the lower threshold of the code.

 

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