A divided Wisconsin Supreme Court ruled Tuesday that a judge’s decision to become Facebook friends with a woman whose child custody case he was hearing created at least the appearance of bias, the first case of its kind in the state and one that could test the boundaries of social media use by judges.
The case presented the question of whether a judge can violate due process rights by becoming “friends” with someone on Facebook. That hasn’t been addressed yet by the U.S. Supreme Court, making the case one it may want to take up, said attorney Brandon Schwartz.
“Social media is obviously not going away,” said Schwartz, who represented the mother fighting for custody of her child. “It would be an opportunity to provide some guidance by the U.S. Supreme Court to all of the courts across the country.”
The ruling, which now places the case before a different judge, was the latest in a series of examples across the country where a judge’s actions on social media call into question their ability to fairly consider cases before them. For example, two years ago the Florida Supreme Court said judges could be Facebook friends with attorneys.
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Schwartz said the Wisconsin case was the first case of its kind where a violation of due process rights was alleged because of a judge becoming “friends” with someone on Facebook.
“It’s an issue the U.S. Supreme Court may have an interest in,” he said.
In Tuesday’s ruling, the court determined that “the extreme facts of this case rebut the presumption of judicial impartiality,” a due process violation. Justice Annette Ziegler also used the case to “strongly urge” Wisconsin judges to “weigh the advantages and disadvantages of using electronic social media like Facebook.”
“I am concerned that no matter how cautious and attentive the judge may be, a judge who uses electronic social media may 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 Justice Brian Hagedorn, in a dissent, said even though the case involves social media, “an area comparatively unexplored in judicial ethics circles,” the facts are rather ordinary and the judge’s actions did not violate the due process rights of the father as he fought for custody rights. There’s not enough evidence to show whether the Facebook friendship unfairly influenced the judge, Hagedorn said.
“Judges are people too,” Hagedorn wrote. “The very concept of an impartial judiciary depends upon the belief that judges can manage through their biases, news feeds, political supporters, former co-workers, and neighbors to render decisions without fear or favor to any party.”
The case began in 2016, when Angela Carroll filed a motion in Barron County to adjust a custody arrangement she had reached with her son’s father, Timothy Miller. She argued Miller had abused her, an accusation Miller denied.
Three days after Carroll and Miller submitted their final written arguments in 2017, the judge handling the case, Barron County Circuit Judge Michael Bitney, accepted a Facebook friend request from Carroll.
Carroll proceeded to “like” 16 of the judge’s posts, “loved” two of them and commented on two of them. The bulk of Carroll’s reactions to Bitney’s posts were “likes” to prayers and Bible verses that he posted. None of the posts were directly related to the pending custody case. However, she also shared or liked several third-party posts that were related to domestic violence, an issue that was contested at the hearing, the court ruling said.
The judge never disclosed the Facebook friendship. He also did not like or comment on any of Carroll’s posts and didn’t reply to her comments. He didn’t deny reading them, however.
“Carroll was effectively signaling to Judge Bitney that they were like-minded and, for that reason, she was trustworthy,” Justice Rebecca Dallet wrote for the majority.
A month later, Bitney ruled that Miller had abused Carroll, gave her sole 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 comment on any of her posts. He also said that he had already decided on his ruling prior to accepting her Facebook friend request.
No “reasonable person ... would seriously call into question the court’s objectivity or impartiality,” the judge said.
A state appeals court later ruled in Miller’s favor, saying the judge’s actions created a substantial risk of bias resulting in the appearance of partiality. It ordered that the custody case proceed with a different judge and the Wisconsin Supreme Court on Tuesday agreed.
Room with a view: See inside and outside the Capitol dome
Room with a view: See inside and outside Wisconsin's Capitol dome
Capitol Dome exterior

The state Capitol dome in Madison on April 17, 2017.
Looking up at the dome

Inner dome coffers, or recessed panels, in the ceiling get smaller toward the top of the dome, adding to the sense of height. The circular opening at the top, known as an oculus, frames "Resources of Wisconsin," with its cherubic characters offering up such treasures as lead, copper and fruit in this January 2017 photo.
Capitol renovations

A tour group gets a close-up view of the "Resources of Wisconsin" painting, done by artist Edwin Howland-Blashfield, on the inner dome, or ceiling of the rotunda, at the Capitol on April 8, 2016.
Looking at the dome from the first floor

Looking up from the Capitol’s first-floor rotunda, the symbolic center of the state, the inner dome is about 200 feet away. That little red circle in the crown is a 34-foot diameter masterpiece, “Resources of Wisconsin,” by Edwin Howland Blashfield. It was photographed on Jan. 26, 2017.
View of rotunda

A view of the rotunda from the inner dome of the Wisconsin State Capitol in Madison on April 8, 2016.
View of ceiling of the rotunda

A view looking down at the ceiling of the rotunda, bottom, inside the state Capitol dome in Madison on April 8, 2016.
Looking down from the Oculus Deck

Looking down toward the first floor of the capitol from the Oculus Deck, in this photo from May 2010.
Spiral staircase in the dome

This spiral staircase, shown in this May 2010 photo, is above the mural atop the interior of the Capitol dome and leads to the exterior lantern deck. It is one of two spiral staircases needed to access the upper reaches of the the state's best-known building.
View from top of dome

A view from the top of the Capitol dome in Madison on April 8, 2016.
Inside the dome

A view from inside the top of the dome at the state Capitol in Madison on April 8, 2016.
View from top of dome

A view from the top of the Capitol dome in Madison on April 8, 2016.
View of East Washington Avenue

A view looking toward East Washington Avenue from the top of state Capitol dome in Madison on April 8, 2016.
View of Martin Luther King Jr. Boulevard

A view looking toward Martin Luther King Jr. Boulevard from the top of the Capitol dome in Madison on April 8, 2016.
View of "Resources of Wisconsin"

A close-up view of the "Resources of Wisconsin" painting, done by artist Edwin Howland-Blashfield, on the inner dome, or ceiling of the rotunda, at the Wisconsin Capitol in Madison on April 8, 2016. The woman in the center represents Wisconsin and holds a sheaf of wheat, symbolizing the state's agriculture. She is surrounded by other women who are holding products from the state, including grapes, lead, copper, tobacco and fruit.
Rappel down the dome

Workers rappel down the Capitol dome in Madison as they survey the structure on Oct. 17, 2017.
Supermoon behind the dome

A so-called "supermoon" ascends in the sky Nov. 14, 2016, behind the Wisconsin State Capitol dome as seen from the campus of UW-Madison.
Capitol dome bathed in green

The dome of Wisconsin's state Capitol building in Madison is illuminated green and gold on Jan. 31, 2011, in celebration of the Green Bay Packers playing in Super Bowl XLV.