Miller v. Carroll (In re Paternity B.J.M.)

386 Wis.2d 267

925 N.W.2d 580

2019 WI App 10

IN RE the PATERNITY OF B.J.M.:

Timothy W. Miller, Joint-Petitioner-Appellant,

v.Angela L. Carroll, Joint-Petitioner-Respondent.

Appeal No. 2017AP2132

Court of Appeals of Wisconsin.

Submitted on Briefs: June 5, 2018

Filed February 20, 2019

On behalf of the joint-petitioner-appellant, the cause was submitted on the briefs of Stephanie L. Finn and David J. Rice of Herrick & Hart, S.C., Eau Claire.

On behalf of the joint-petitioner-respondent, the cause was submitted on the brief of Brandon M. Schwartz and Michael D. Schwartz of Schwartz Law Firm, Oakdale, Minnesota.

Before Stark, P.J., Hruz and Seidl, JJ.

SEIDL, J.

¶1 Timothy Miller appeals an order granting Angela Carroll’s motion for modification of custody and physical placement of their minor son, Bruce,¹ and establishing child support payments by Miller. He also appeals an order denying his motion for reconsideration. Miller argues the circuit court demonstrated objective bias by accepting a Facebook "friend" request from Carroll after a contested evidentiary hearing, but before issuing a decision on Carroll’s motion.²

¶2 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). Although we need not determine whether a bright-line rule prohibiting the judicial use of ESM is appropriate or necessary, we conclude that the circuit court’s undisclosed ESM connection with a current litigant in this case created a great risk of actual bias, resulting in the appearance of partiality. Accordingly, Miller has demonstrated the judge was objectively biased. We therefore reverse and remand the case for further proceedings before a different judge.

BACKGROUND

¶3 In 2011, pursuant to the parties’ stipulation, the circuit court entered an order granting Miller and Carroll joint legal custody and shared physical placement of Bruce. Five years later, in August 2016, Carroll filed a motion to modify the order, seeking sole legal custody and primary physical placement of Bruce, and an order for child support payments from Miller.

¶4 On June 7 and 8, 2017, an evidentiary hearing on Carroll’s motion was held before Judge Michael Bitney. As relevant to this appeal, Carroll introduced evidence at the hearing that Miller had engaged in a pattern of domestic abuse against her. Miller denied Carroll’s allegations. At the conclusion of the hearing, Judge Bitney took the matter under advisement and gave the parties ten days to submit written arguments.

¶5 The parties submitted their final written arguments on June 16, 2017. Three days later, Judge Bitney accepted a Facebook "friend" request from Carroll. This Facebook connection was not disclosed to Miller or his counsel.

¶6 From the time the Facebook connection was established until Judge Bitney issued his written decision on Carroll’s motion, Carroll "liked" eighteen of Judge Bitney’s Facebook posts and commented on two of his posts.³ None of these "likes" or comments were directly related to the pending litigation. Judge Bitney did not "like" or comment on any of Carroll’s posts, nor did he reply to any of her comments on his posts.

However, at a later hearing, Judge Bitney did not deny reading any posts made by Carroll.

¶7 During this same timeframe—i.e., from the establishment of the Facebook connection until issuance of the decision on Carroll’s motion—Carroll also "liked" multiple third-party posts and "shared" one third-party photograph related to domestic violence.⁴ Although there is no evidence Judge Bitney ever directly observed the third-party posts, it is undisputed that, due to the nature of a Facebook "friendship," Carroll’s activity could have appeared on his Facebook "newsfeed."

¶8 On July 14, 2017, the circuit court issued a written decision. In relevant part, the court found Carroll had shown "by the greater weight of credible evidence that Mr. Miller has engaged in a pattern of domestic abuse against ... Carroll." The court then found this pattern of domestic abuse constituted a substantial change in the parties’ circumstances since entry of the 2011 custody and physical placement order. Consequently, the court granted Carroll sole legal custody and primary physical placement of Bruce. The court also ordered the parties to submit updated financial disclosure statements in order to determine Miller’s child support obligations "in light of the changes regarding physical placement."⁵ Further, the court granted Carroll permission to move with Bruce from Rice Lake to Durand.

¶9 That same day, the guardian ad litem (GAL) for Bruce "was made aware of a Facebook post authored by Ms. Carroll regarding the court order." The GAL searched for and located this post, which read in relevant part that "[t]he Honorable Judge has granted everything we requested." During her search, the GAL also "inadvertently discovered" that Carroll and Judge Bitney were Facebook "friends." The GAL reported the Facebook connection to Miller’s counsel, who in turn informed Miller.

¶10 Miller confirmed the Facebook connection between Carroll and Judge Bitney. He then moved the circuit court for reconsideration of its decision under WIS. STAT. § 805.17(3) (2017-18),⁶ and for relief from the order under WIS. STAT. § 806.07. Miller argued, in relevant part, that Judge Bitney’s Facebook connection with Carroll during the pendency of the proceedings gave rise to the appearance of partiality. Thus, Miller requested judicial disqualification and a new hearing.

¶11 At a hearing on Miller’s motion, Judge Bitney confirmed that he had accepted Carroll’s friend request after the custody hearing and before rendering his written decision. However, he concluded he was not subjectively biased by accepting Carroll’s "friend" request, because he already "had decided how I was going to rule, even though it hadn’t been reduced to writing." Further, he concluded that "[e]ven given the timing of" his and Carroll’s Facebook connection, the circumstances did not "rise[ ] to the level of objective bias...." Consequently, he denied Miller’s motion. Miller now appeals.

DISCUSSION

¶12 The right to an impartial judge is fundamental to the notion of due process under both the United States and Wisconsin Constitutions. See State v. Goodson , 2009 WI App 107, ¶8, 320 Wis.2d 166, 771 N.W.2d 385. We presume that a judge has acted fairly, impartially, and without bias; however, this presumption is rebuttable. Id. To determine if the presumption in favor of a judge’s impartiality has been rebutted, we generally apply two tests: one subjective and one objective. Id. Here, Miller does not contend the circuit court was subjectively biased. Therefore, we examine only whether the court demonstrated objective bias.

¶13 Objective bias can exist in two situations: (1) where there is the appearance of bias or partiality; or (2) where objective facts demonstrate that a judge treated a party unfairly. Id. , ¶9. In this case, Miller argues that objective bias exists due to the appearance of partiality.

¶14 The appearance of partiality constitutes objective bias when a reasonable person could conclude "that the average judge could not be trusted to ‘hold the balance nice, clear, and true’ under all the circumstances." State v. Gudgeon , 2006 WI App 143, ¶24, 295 Wis.2d 189, 720 N.W.2d 114 (quoting In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) ). In other words, when the facts of a case reveal a great risk of actual bias, the presumption of impartiality is rebutted and a due process violation has been established. State v. Herrmann , 2015 WI 84, ¶3, 364 Wis.2d 336, 867 N.W.2d 772. A circuit court judge’s partiality is a matter of law that we review de novo. Goodson , 320 Wis.2d 166, ¶7, 771 N.W.2d 385.

¶15 The parties point to no Wisconsin case addressing the issue of judicial use of ESM in the context of a judicial bias claim. Nor has our own research of the case law revealed any controlling authority. We also note that no Wisconsin advisory ethics opinion directly addresses this issue. However, several persuasive authorities—namely, out-of-state legal decisions and an American Bar Association (ABA) advisory ethics opinion—provide some guidance.

¶16 These authorities conclude that judicial use of ESM, standing alone, generally does not require judicial disqualification. See, e.g. , State v. Thomas , 376 P.3d 184, 198 (N.M. 2016) ; see also Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass’n , ––– So. 3d ––––, ––––, 2018 WL 5994243 at *7 (Fla. Nov. 15, 2018). Still, the authorities caution that judges must be careful to avoid creating the appearance of impropriety through their use of ESM. See Thomas , 376 P.3d at 198. Put simply, they reflect the common-sense rationale that "[a] judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must ... avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety." ABA Formal Op. 462 at 1 (2013) (italics omitted).

¶17 We find the reasoning of the New Mexico supreme court in Thomas particularly instructive. In that case, a defendant argued that a judge’s social media postings during the pendency of his trial demonstrated judicial bias. Thomas , 376 P.3d at 194. Although the court reversed the case on other grounds, it discussed the concerns raised by judicial use of ESM and concluded:

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. Online comments are public comments, and a connection via an online social network is a visible relationship, regardless of the strength of the personal connection.

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A judge’s online "friendships," just like a judge’s real-life friendships, must be treated with a great

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