Wisconsin court: Judge’s Facebook friendship could show bias

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By TODD RICHMOND, Associated Press

MADISON, Wis. (AP) — A Wisconsin judge’s decision to become Facebook friends with a woman whose child-custody case he was hearing led at least the appearance of bias, a state appeals court ruled on Wednesday in ordering the case to be re-heard by another judge.

The case, which is the first of its kind in the state, contemplates whether judges’ use of social media can compromise their integrity. In its ruling, the 3rd District Court of Appeals didn’t lay out any bright-line rules for judges but warned them to use caution when they are dealing with people online, to make sure they avoid the appearance of impropriety.

“We caution that judges should recognize that online interactions, like real-world interactions, must be treated with a degree of care,” appellate Judge Mark Seidl wrote in the ruling.

According to court documents, Angela Carroll filed a motion in Barron County in 2016 to adjust a custody arrangement she had reached with her son’s father, Timothy Miller. She demanded sole legal custody of the boy, primary placement of him and an order forcing Miller to pay child support. She argued Miller had abused her, an accusation Miller denied.

The case went before Judge Michael Bitney. Three days after Carroll and Miller had submitted their final written arguments in 2017, Bitney accepted a Facebook friend request from Carroll.

She proceeded to like 18 of the judge’s posts and commented on two of them. None of the posts was directly related to the pending custody case. Bitney didn’t like or comment on any of Carroll’s posts and didn’t reply to her comments. He didn’t deny reading them, however.

Carroll also shared one third-party photograph related to domestic violence. Nothing suggests the judge ever saw it, but the post could have appeared on his newsfeed, according to the documents.

A month later Bitney ruled that Miller had abused Carroll, which he said amounted to a substantial change in the litigants’ circumstances. He gave Carroll sole custody and physical placement of their son and ordered a review of Miller’s child support obligations.

The boy’s guardian ad litem, who is appointed by the court to advocate for a child’s best interests, later discovered that Bitney had befriended Carroll on Facebook and informed Miller, who asked Bitney to reconsider his decision, arguing that the relationship presents an appearance of bias. During a hearing, Bitney denied the existence of any bias.

Miller then went to the 3rd District Court of Appeals. The three-judge panel found in his favor, saying Bitney’s actions created a substantial risk of bias resulting in the appearance of partiality. The lack of disclosure heightened those concerns, the court said.

“A reasonable person could believe Carroll sent the ‘friend’ request in an attempt to influence Judge Bitney’s decision. And, because the other party had no opportunity to respond to this attempt or to review how Carroll and Judge Bitney interacted through their Facebook friendship, a reasonable person could believe that Carroll did exert, either directly or indirectly, some influence,” Seidl wrote.

The court ordered the custody case to proceed before a different judge. Neither Bitney nor Carroll’s attorney immediately responded to phone messages seeking comment on Wednesday.