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  • WisBar News
    February 20, 2019

    Facebook “Friending” Between Judge and Litigant Created Risk of Bias

    Joe Forward

    WI Supreme Court

    Feb. 20, 2019 – A judge who became Facebook “friends” with a pending litigant before deciding the case created a risk of actual bias such that the case must be reversed and remanded for a rehearing before a different judge, a state appeals court has ruled.

    In 2017, Angela Carroll moved to modify a child custody and physical placement arrangement shared with the child’s father, Timothy Miller, in the Barron County Circuit Court. Carroll also moved to establish a child support payment order against Miller.

    The circuit court judge conducted a hearing on Carroll’s motion for custody modification and child support – at which Carroll alleged Miller had engaged in a pattern of domestic abuse against her – and gave the parties 10 days to submit final written arguments.

    Three days after the parties submitted final written arguments, but before the judge decided the matter, Carroll sent the judge a Facebook “friend” request. The judge accepted the “friend” request from Carroll, establishing a Facebook connection.

    Before a written decision was issued, Carroll “liked” 18 of the judge’s Facebook posts and commented on two of them. The judge did not respond to any of Carroll’s comments or “like” any of Carroll’s Facebook posts, but did not deny reading them.

    During this time, Carroll “shared” a third-party photo relating to domestic violence that could have appeared in the judge’s Facebook newsfeed.

    Ultimately, the judge ruled in favor of Carroll, concluding Carroll provided enough evidence of domestic abuse by Miller, which constituted the substantial change in circumstances necessary to modify the child custody and physical placement order.

    The modification allowed Carroll to move with her son to a different city. The judge also ordered the parties to submit financial disclosure statements to determine modifications to child support against Miller. The same day, Carroll posted about the judge’s decision on Facebook, commenting that the judge “granted everything we requested.”

    The guardian ad litem for Carroll’s son was made aware of the post and reported to Miller’s lawyer after learning that Carroll was Facebook friends with the judge.

    Miller moved for reconsideration, arguing that the Facebook connection between Carroll and the judge gave rise to the appearance of partiality. The judge denied Miller’s motion, concluding he was not subjectively biased despite the Facebook contact.

    But in Miller v. Carroll, 2017AP2132 (Feb. 20, 2018), the District III Court of Appeals reversed, concluding the judge’s undisclosed social media connection with a litigant “created a great risk of actual bias, resulting in the appearance of partiality.”

    A three-judge panel, in an opinion by Judge Mark Seidl, noted that the right to an impartial judge is “fundamental” to a person’s constitutional due process right.

    “We presume that a judge has acted fairly, impartially, and without bias; however, this presumption is rebuttable,” wrote Judge Seidl, noting that subjective and objective tests can be applied to determine whether the presumption of impartiality is rebutted.

    The panel concluded that, applying an objective test, Miller rebutted the presumption because the Facebook connection established the “appearance of partiality.” That is, the facts revealed “a great risk of actual bias,” which violated Miller’s due process rights.

    The panel noted a lack of controlling authority but looked to an ABA ethics opinion and a New Mexico case, which concluded that judges don’t automatically disqualify themselves from cases by using social media, but must avoid conduct creating an appearance of impartiality.

    Judge Seidl explained Facebook “friendship” and noted that the judge in this case took the affirmative step of accepting Carroll’s “friend” request after she testified in the hearing and before he issued a decision in her favor.

    “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,” Judge Seidl wrote.

    The judge’s decision to accept the friend request, Seidl noted, “conveys the impression that Carroll was in a special position to influence [the judge’s] ultimate decision – a position not available to individuals that he had not ‘friended,’ such as Miller.”

    Judge Seidl also explained that the social media connection was not disclosed to other parties, and ex parte communication, which is prohibited between judges and litigants, occurred to the extent the judge and Carroll viewed each other’s Facebook posts.

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