In the case In Re the Paternity of B.J.M., Appeal No. 2017AP2132 (Wis. App. Feb. 20, 2019), the Court of Appeals of Wisconsin reversed and remanded the case for further proceedings to a different judge after finding “a great risk of actual bias” due to the sitting judge’s acceptance of a Facebook “friend” request from the litigant.
In this case, the parties (Timothy Miller and Angela Carroll) entered into an order granting joint legal custody and shared physical of a minor child in 2011. Subsequently, Carroll filed a motion to modify the court order on the grounds that Miller had engaged in a pattern of domestic abuse against Carroll.
After the parties had filed their written arguments, Carroll sent the judge deciding the motion- Judge Michael Bitney – a Facebook “friend” request, which Judge Bitney accepted. Following Bitney’s acceptance of the request, Carroll “liked” a number of Bitney’s posts and she commented on two of Bitney’s posts. Judge Bitney did not, however, “like” or comment on any of Carroll’s Facebook posts. However, many of Carroll’s Facebook activities did appear on Judge Bitney’s newsfeed, including Carroll’s posts regarding domestic violence.
In 2017, Judge Bitney granted Carroll’s modification motion. Following the decision, Miller discovered that Judge Bitney and Carroll were Facebook friends prior to the issuance of the ruling and moved to reconsider the decision. At the hearing for reconsideration, Judge Bitney stated that he had accepted Carroll’s friend request but also stated that he was not biased by the friend request because he already “had decided how I was going to rule, even though it hadn’t been reduced to writing.” As such, Judge Bitney denied Miller’s motion for reconsideration and Miller appealed.
In his opinion, Justice Seidl noted that “This case involves what appears to be an issue of first impression in Wisconsin: a claim of judicial bias arising from a judge’s use of electronic social media (ESM)” and stated that “we need not determine whether a bright-line rule prohibiting the judicial use of ESM is appropriate or necessary”. He also referenced a New Mexico supreme court in Thomas as “particularly instructive”, which said:
“While we make no bright-line ban prohibiting judicial use of social media, we caution that ‘friending,’ online postings, and other activity can easily be misconstrued and create an appearance of impropriety… A judge’s online ‘friendships,’ just like a judge’s real-life friendships, must be treated with a great deal of care.”
The opinion also stated that “the time when Judge Bitney and Carroll became Facebook ‘friends’ would cause a reasonable person to question the judge’s partiality. Although Judge Bitney apparently had thousands of Facebook ‘friends,’ Carroll was not simply one of the many people who ‘friended’ him prior to this litigation. Rather, Carroll was a current litigant who reached out to Judge Bitney and requested to become his Facebook ‘friend’ after testifying at a contested hearing, at which Judge Bitney was the sole decision-maker. Judge Bitney then took the affirmative step to accept this ‘friend’ request before issuing his decision in this case…This timing creates a great risk of actual bias and a resulting appearance of partiality because, even assuming that a Facebook ‘friendship’ does not denote the type of relationship traditionally associated with the term ‘friendship,’ it is unquestionably evidence of some type of affirmative social connection…Carroll’s choice to send a ‘friend’ request to Judge Bitney, combined with Judge Bitney’s choice to accept that request before issuing his decision, conveys the impression that Carroll was in a special position to influence Judge Bitney’s ultimate decision – a position not available to individuals that he had not ‘friended,’ such as Miller.”
As a result, the court reversed and remanded the case for further proceedings to a different judge.