An appeal case before the Wisconsin Supreme Court will give justices a chance to adopt or clarify rules about judges’ use of social media. The appeal in Miller vs. Carroll stems from a 2016 custody battle in Barron County. Angela Carroll was trying to obtain sole custody of her son. She said the boy’s father, Timothy Miller, had been abusive, an allegation he denied.
In the end, Judge J. M. Bitney sided with Carroll, agreeing in July 2017 that Miller had been abusive and that warranted a change in custody. It would have been a fairly routine case had not Bitney become Facebook “friends” with Carroll in the month between when the hearing ended and when he handed down his decision. Before then, Carroll had liked 18 of Bitney’s posts and commented on two. Miller’s lawyer, Heather Pauls of Johnson & Pauls Lawyers, in Eau Claire, noted that Carroll had put up at least one third-party post related to domestic violence and had written another saying, “The Honorable Judge has granted everything we requested.”
Pauls and Miller became concerned that the “friendship” had influenced Bitney’s decision. In an appeal filed in October 2017, they brought up questions about partiality.
Bitney never responded to Carroll’s posts. But at a later hearing, he also didn’t deny reading them. In February, the courts reversed the decision, saying Judge Bitney was “an impartial decision-maker” and “our adherence to this fundamental precept of due process compels us to reverse the decision and remand with directions that the case proceed before a different judge.”
In taking up the case, the Wisconsin Supreme Court will discuss the appearance of impartiality and ex parte communications between a judge and litigant in the context of social media. According to documents from the Court of Appeals, this is an issue of first impression in Wisconsin, and in the age of social media, it presents a substantial and continuing public interest.