MADISON, Erase. (AP) – A divided Wisconsin Supreme Court ruled on Tuesday that a judge’s decision to become Facebook friends with a woman whose custody case he heard caused at least the appearance of bias, the first case of its kind in the and one that could test the limits of social media use by judges.
The case raised the question of whether a judge can violate procedural rights by making friends with someone on Facebook. That has not yet been dealt with by the U.S. Supreme Court, making it a case it may want to hear, said attorney Brandon Schwartz.
“Social media is clearly not going away,” said Schwartz, who represented the mother fighting for custody of her child. “It would be an opportunity to escort all courts across the country through the United States Supreme Court.”
The verdict was the latest in a series of examples across the country where the actions of a judge on social media question their ability to hear fair cases. For example, two years ago, the Florida Supreme Court said that judges can be Facebook friends with lawyers.
Schwartz said the Wisconsin case was the first case of its kind to allege a violation of trial rights because a judge became friends with someone on Facebook.
“It is an issue that may be of interest to the US Supreme Court,” he said.
In Tuesday’s ruling, the court ruled that “the extreme facts of this case refute the presumption of judicial impartiality,” a violation of due process. Judge Annette Ziegler also used the case to “strongly urge Wisconsin judges to weigh the pros and cons of using electronic social media such as Facebook.”
“I am concerned that, however cautious and observant the judge may be, a judge who uses electronic social media can expose both the judge and the judiciary as a whole to an appearance of bias or impropriety,” she wrote as part of the 4 -3 majority.
But judge Brian Hagedorn, in a dissenting opinion, said that while the case concerns social media, “an area relatively unexplored in legal ethics,” the facts are quite common and that the actions of the judge are the legitimate procedural rights of did not violate the father as he fought for retention rights. There isn’t enough evidence to show whether the Facebook friendship has unfairly affected the judge, Hagedorn said.
“Judges are also people,” Hagedorn wrote. “The concept of an impartial judiciary hinges on the belief that judges can make decisions through their prejudices, news feeds, political supporters, former colleagues and neighbors without fear or favor for a party.”
The case started in 2016 when Angela Carroll filed a motion in Barron County to amend a custody arrangement she reached with her son’s father, Timothy Miller. She alleged that Miller had abused her, an accusation that Miller denied.
Three days after Carroll and Miller filed their final written arguments in 2017, the judge hearing the case, Barron County Circuit Judge Michael Bitney, accepted a Facebook friend request from Carroll.
Carroll went on to “like” 16 of the judge’s posts, “liked” two of them and commented on two of them. Most of Carroll’s responses to Bitney’s posts were likes on prayers and Bible verses he posted. None of the posts were directly related to the pending custody case. However, she also shared or liked several third-party posts related to domestic violence, an issue that was contested at the hearing, the court said.
The judge never disclosed the Facebook friendship. He also did not like or respond to any of Carroll’s posts, and did not respond to her comments. However, he denied not reading them.
“In fact, Carroll gave Judge Bitney a sign that they were like-minded and that is why she was trustworthy,” Judge Rebecca Dallet wrote for the majority.
A month later, Bitney ruled that Miller had abused Carroll, gave her exclusive custody and physical placement of their son, and ordered a review of Miller’s child support obligations.
After the Facebook friendship was discovered, Miller asked the judge to reconsider his ruling.
The judge said he was impartial, noting that he had simply accepted her friendship, but did not “like” or respond to any of her posts. He also said that he had already decided on his verdict before accepting her Facebook friend request.
No “reasonable person … would seriously question the objectivity or impartiality of the court,” said the judge.
An appeal court later ruled in Miller’s favor, saying that the judge’s actions created a significant risk of bias, resulting in the appearance of partiality. It ordered the custody case to go ahead with another judge, and the Wisconsin Supreme Court agreed on Tuesday.
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