In Miller v. Carroll, decided this week, the Wisconsin Supreme Court declared a judge’s Facebook friendship with a litigant an “appearance of bias” in violation of due process after a judge accepted a Facebook friend request from a party in a custody dispute before rendering a decision.
After the contested case hearing, but before the decision, Carroll sent the judge for her case a friend request. He accepted and she proceeded to react and comment on his posts, as well as publicly share content from her own profile on domestic abuse, one of the points of contention in her case.
Miller learned of the Facebook friendship after the judge ruled entirely for Carroll. He moved for reconsideration, requesting judicial disqualification and a new hearing.
The four-justice majority looked to four factual elements for its finding of judicial bias in violation of the due process clause of the 14th Amendment: (1) the timing of the Facebook friend request and the judge’s affirmative acceptance; (2) the volume of litigant’s Facebook activity and likelihood the judge viewing her posts and comments; (3) the content of the Facebook activity as it related to the context and nature of the pending proceeding; and (4) the judge’s lack of disclosure. They concluded these factors rebutted the presumption of judicial impartiality and established a due process violation
Justices Ann Walsh Bradley and Justice Zeigler wrote contrasting concurrences, disputing the meaning of “appearance of bias” in Wisconsin and federal case law, but agreeing with the majority that it was present in this case.
Meanwhile, Justice Hagedorn (joined by Justices Kelly and Rebecca Bradley) wrote in dissent, disputing the action reached even the appearance of bias:
“The record before us doesn’t tell us much, but what it does tell suggests this is not a needle-in-the-haystack judicial recusal case; it is quite ordinary. The thrust of the recusal argument rests on the fact that [the judge] accepted a Facebook friend request from a party while a case was pending, and did not disclose it. But that’s rather sparse evidence from which to conclude a certain ethics violation occurred, much less a due process problem.”
The appearance of judicial bias can take many forms, which is one reason the Wisconsin Supreme Court did away with deference to agency interpretation of the law almost two years ago.
