June 25, 2020 – In a case of first impression, the Wisconsin Supreme Court majority (4-3) ruled that a judge violated a litigant’s due process rights by accepting a Facebook “friend” request from a litigant in a pending child custody case.

In Miller v. Carroll, 2020 WI 56 (June 16, 2020), the majority opinion by Justice Rebecca Dallet concluded “that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation,” affirming a court of appeals decision.

Justice Brian Hagedorn wrote a dissenting opinion, joined by Justice Rebecca Bradley and Justice Daniel Kelly. The dissenters concluded that the facts did not support the conclusion that a risk of actual bias was “constitutionally intolerable.”

Friend Request

A circuit court judge in Barron County was presiding over a contested child custody dispute when he accepted a Facebook “friend” request from the mother in the case after a contested a hearing but before issuing a decision. He fully ruled in the mother’s favor.

Before issuing the ruling, though, the mother had “liked” 16 of the judge’s Facebook posts, “loved” and commented on others, and “shared” and “liked” third-party posts relating to domestic violence, which was an issue in the case.

Once the father discovered the Facebook relationship, the father moved for reconsideration and sought a new hearing with a different judge, alleging a violation of his due process right to an impartial judge. The judge denied the motion.

A state appeals court reversed and remanded for a new hearing with a different judge despite the circuit judge’s testimony that the passive social media friendship – he did not engage with any of the mother’s posts ­– did not impact his impartiality and he had already decided the case before he accepted the mother’s “friend” request.”

The appeals court ruled that the circuit judge’s actions “created a great risk of actual bias, resulting in the appearance of partiality.” The mother appealed that decision.

Majority Opinion

The majority opinion by Justice Dallet noted that parties asserting judicial bias have the burden to rebut, by a preponderance of the evidence, a presumption that judges act fairly, impartially, and without bias.

“If a party rebuts this presumption and shows a due process violation, the error is structural and not subject to a harmless error analysis,” Justice Dallet explained.

The mother met her burden, the majority ruled, based on the timing of the friend request, the volume of the mother’s Facebook activity, the content of Facebook activity related to domestic violence, and the judge’s nondisclosure of social media relationship.

By accepting the mother’s “friend” request, the judge “accepted access to off-the-record facts that were relevant to the dispute,” the majority noted, including the mother’s character and parental fitness. The judge likely saw the mother’s Facebook activity, which “increased the likelihood of a serious risk of actual bias,” the majority added.

“The United States Supreme Court has established that a serious risk of actual bias can objectively rise to the level of a due process violation,” Justice Dallet noted.

“We conclude that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation.”

Concurrences

Justice Ann Walsh Bradley joined the majority opinion, aside from one footnote, but wrote a separate concurring opinion arguing the majority opinion’s analysis “fails to discuss the role that appearance of bias can play in the due process analysis.”

“[T]he right to an impartial decisionmaker encompasses the appearance of bias and not simply the absence of actual bias,” Justice A.W. Bradley wrote.

Justice A.W. Bradley said the majority’s opinion is at odds with a prior opinion – State v. Henley , 2011 WI 67 (per curiam),  in which the court (4-3) determined that an individual judge’s decision not to recuse from a case cannot be challenged.

In Henley, a defendant challenged then-Justice Patience Roggensack’s decision not to recuse from the supreme court’s determination of his case even though she was on the Court of Appeals panel that previously decided the co-defendant’s direct appeal.

“Claiming a powerlessness to act, the majority in essence treated the due process claim challenging the participation of a justice as nonjusticiable,” Justice A.W. Bradley wrote.

“Thus, Henley’s circle-the wagons response cannot peacefully coexist with the majority’s due process analysis.”

Justice Annette Ziegler joined the majority opinion “because it does not adopt the standard suggested in Justice Ann Walsh Bradley’s concurrence.”

Justice Ziegler said the majority opinion, in concluding there was a “serious risk of actual bias” presented by the extreme facts of the case, is consistent with the language in Caperton v. A.T. Massey Coal Co., 56 U.S.868 (2009).

She specifically disavowed an “appearance of bias” standard advocated by Justice A.W. Bradley, noting due process violations are rare and limited to extreme cases, and agreed with Justice Brian Hagedorn’s dissent relating to recusal (noted below).

“I also write separately, in light of this case, to caution the Wisconsin bench about the hazards of electronic social media, and Facebook in particular,” Justice Ziegler wrote.

“I caution judges to avoid using social media such as Facebook unless significant safeguards are in place to avoid a situation like that present here.”

However, she said an “appearance of impropriety is not itself sufficient to constitute a due process violation.”

Justice Dallet, who wrote the majority opinion, also wrote a concurrence – joined by Justice Hagedorn – “to provide additional guidance and clarification for the bench and bar” on the use of social media.

Dallet said ‘there is nothing inherently inappropriate about a judge’s use of social media platforms like Facebook,” noting judges regularly use social media to reach voters in campaigns and ethics rules don’t prohibit it, but “judges must be cautious in their use.”

Dissent

Justice Hagedorn, writing for the three dissenting justices, concluded that “the circumstances here are not so extreme as to violate Miller’s due process right to an impartial tribunal” and also concluded the “facts are rather ordinary.”

Justice Hagedorn said until recently, the narrow common law on judicial recusal required disqualification if a judge had a direct, personal, or substantial pecuniary interest in the outcome of the case, with a limited expansion added under Caperton.

In Caperton, West Virginia Supreme Court Justice Brent Benjamin declined to recuse in a case in which the court was reviewing a $50 million verdict, even though one of the parties spent $3 million in prior years towards Benjamin’s election.

“Facing this, the Court indicated for the first time that something less than actual bias may be of constitutional import,” Justice Hagedorn wrote.

“But its application was limited to cases where, under an objective inquiry, ‘a serious risk of actual bias’ is present.” Those circumstances were not present here, he said.

First, Justice Hagedorn noted, the case does not present extreme facts. Second, “the majority functionally finds facts by embracing every negative inference from a record that is, at best ambiguous,” he wrote.

For instance, the record did not determine whether the judge actually interacted with the mother’s Facebook posts, or saw her domestic violence-related posts at all.

“It is important to remember that judges are not isolated members of the community,” Justice Hagedorn noted. “The more this court takes ordinary recusal questions and turns them into constitutional questions, the more we will see these claims.”