Justices on the Wisconsin Supreme Court heard arguments on Monday in a case that’s giving the justices a chance to adopt or clarify rules about judges’ use of social media.
The case Miller v. Carroll stems from a custody battle in Barron County. Judge J.M. Bitney had become Facebook friends with Angela Carroll before ruling in her favor in the dispute. Miller filed an appeal in October 2017, raising questions about partiality. In February 2019, a Court of Appeals concluded that the undisclosed Facebook friendship “created a great risk of actual bias resulting in the appearance of partiality” and ruled a due-process violation had occurred.
Carroll’s attorney, Brandon Schwartz of Schwartz Law Firm in Oakdale, Minn., filed a petition for review, and the state Supreme Court took up the case last year. In Monday’s hearing, the justices asked about communications between Bitney and Carroll and if such dealings qualified as ex parte communications and discussed the communications within the context of the custody case.
Schwartz started his arguments by saying there was no communication between Carroll and Bitney. But about 30 seconds into his opening statement, he was stopped by Justice Dan Kelly, who wondered if Schwartz was speaking with strict accuracy. Kelly said even the simple act of sending a friend request could be considered communication.
Schwartz responded that the only way to prove that Bitney had not been impartial would be to show that any communication between him and Carroll touched on the merits of the case.
“All 2,000 of Judge Bitney’s friends, including Mr. Miller’s sister, would have been able to see the likes on his post,” Schwartz said. “That is not the type of private communication that erodes confidences in our judiciary.”
Terry Moore, attorney at Herrick & Hart in Eau Claire, argued the friend request and subsequent 18 post likes and two comments had influenced Bitney.
“While it’s not an overt ex parte communication, it’s a certainly a communication that’s just between her and the judge, and it’s conveying a point she wants to convey to the judge — that he can believe her, that he can trust her,” Moore said.
Moore said he wasn’t asking to impose a bright-line rule banning judges from social media. Schwartz said upholding the appellate court’s decision would suggest such a rule were in place. He said that, in today’s society, being required to staying away from social media is tantamount to being forced to be a hermit.
“I’ve never felt like a hermit for not being on Facebook,” Chief Justice Pat Roggensack said with a laugh at the end of the hearing.
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