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

• Decision Date: 16 June 2020
• Docket Number: No. 2017AP2132,2017AP2132
• Citation: 2020 WI 56,944 N.W.2d 542,392 Wis.2d 49
• Parties: IN RE the PATERNITY OF B.J.M.: Timothy W. Miller, Joint-Petitioner-Appellant, v. Angela L. Carroll, Joint-Petitioner-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

392 Wis.2d 49

944 N.W.2d 542

2020 WI 56

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

Timothy W. Miller, Joint-Petitioner-Appellant,

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

No. 2017AP2132

Supreme Court of Wisconsin.

Oral Argument: January 13, 2020

Opinion Filed: June 16, 2020

For the joint-petitioner-respondent-petitioner, there were briefs filed by Brandon M. Schwartz, Michael D. Schwartz, and Schwartz Law Firm, Oakdale, Minnesota. There was an oral argument by Brandon M. Schwartz.

For the joint-petitioner-appellant, there was a brief filed by Stephanie L. Finn, David J. Rice, Terry L. Moore, and Herrick & Hart, S.C., Eau Claire. There was an oral argument by Terry L. Moore.

An amicus curiae brief was filed on behalf of Wisconsin Chapter of American Academy of Matrimonial Lawyers by Daniel P. Bestul and Duxstad & Bestul, S.C., Monroe; with whom on the brief was Jennifer Van Kirk and Peckerman, Klein & Van Kirk LLP, Milwaukee.

DALLET, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., and ZIEGLER, J., joined; and in which ANN WALSH BRADLEY, J., joined except for footnote 18. ANN WALSH BRADLEY, J., filed a concurring opinion. ZIEGLER, J., filed a concurring opinion. DALLET, J., filed a concurring opinion, in which HAGEDORN, J., joined. HAGEDORN, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, and KELLY, JJ., joined except for footnote 1 and ¶¶120-24, but do join footnote 3.

REBECCA FRANK DALLET, J.

¶1 This case presents an issue of first impression: an allegation of judicial bias arising from a circuit court judge's undisclosed social media connection with a litigant.

¶2 In this case, a circuit court judge accepted a Facebook "friend request" from the mother in a custody dispute after a contested hearing, but before rendering a decision.¹ In the course of their 25-day Facebook "friendship," the mother "liked" 16 of the judge's Facebook posts, "loved" two of his posts, commented on two of his posts, and "shared" and "liked" several third-party posts related to an issue that was contested at the hearing. The judge never disclosed the Facebook friendship or the communications, and he ultimately ruled entirely in the mother's favor.

¶3 After discovering the Facebook friendship, the father moved the circuit court for reconsideration, requesting judicial disqualification and a new hearing. At the reconsideration hearing, the judge admitted to the Facebook interactions between himself and the mother. However, he denied the motion and claimed that he was impartial because he had already decided on his ruling prior to accepting her friend request.

¶4 The court of appeals reversed the circuit court's denial of the motion for reconsideration and remanded the case with directions that it proceed before a different circuit court judge.²

¶5 We conclude that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation. Accordingly, we affirm the court of appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶6 Timothy Miller and Angela Carroll stipulated to joint legal custody and shared physical placement of their minor son, Bruce, in August 2011.³ Five years later, Carroll filed a motion to modify the order pursuant to Wis. Stat. § 767.451 (2017-18).⁴ Carroll sought sole legal custody, primary physical placement, child support payments, and a change in residence. Carroll's motion and supporting affidavits alleged that Miller engaged in acts of domestic violence against Carroll, and included a copy of a domestic abuse injunction that Carroll obtained that same month. Carroll also alleged that Miller failed to adequately parent and discipline Bruce. Miller vigorously opposed the motion and disputed the allegations of domestic violence. The case was assigned to Judge Michael Bitney.

¶7 Judge Bitney conducted a highly contested two-day evidentiary hearing over June 7-8, 2017, that included the testimony of 15 witnesses. At the conclusion of the hearing, Judge Bitney took the matter under advisement and gave the parties time to submit briefs, which they filed on June 16, 2017. Three days after the briefs were filed, unbeknownst to Miller, Carroll sent Judge Bitney a "friend request" on Facebook. Judge Bitney affirmatively "accepted" Carroll's request.⁵ At the time Judge Bitney accepted the request, he had not yet rendered a decision on Carroll's motion. Judge Bitney never disclosed Carroll's request or his acceptance of the request.

¶8 During the 25 days between Judge Bitney's acceptance of Carroll's friend request and his issuance of a written decision entirely in her favor, Carroll engaged with and "reacted to" at least 20 of Judge Bitney's Facebook posts.⁶ The bulk of Carroll's "reactions" to Judge Bitney's posts were "likes" to prayers and Bible verses that he posted.⁷ Additionally, Carroll "loved" one of Judge Bitney's posts reciting a Bible verse and another post regarding "advice" to children and grandchildren.⁸ Carroll also commented on two of Judge Bitney's posts related to his knee surgery: "Prayers on a healthy recovery Judge!!" and "Hope u get some rest and feel better as the days go on." Judge Bitney would have received a notification from Facebook each time Carroll reacted to one of his posts.⁹ Judge Bitney also would have received a notification from Facebook each time Carroll commented on one of his posts.

¶9 In addition to "reacting" to and engaging with at least 20 of Judge Bitney's posts, Carroll posted on her Facebook page about the topic of domestic violence, which was at issue in the contested hearing. Carroll posted that she was "interested in" attending the "Stop the Silence Domestic violence awareness bike/car Run."¹⁰ Carroll "liked" a third-party post related to domestic violence and reacted "angry" to a third-party post entitled "Woman dies two years after being set on fire by ex-boyfriend." Finally, Carroll "shared" a third-party post related to domestic violence.¹¹ Carroll's Facebook friends, including Judge Bitney, could see these "reactions" to, and "shares" of, third-party posts in their respective Facebook "News Feed."¹² As a Facebook friend, Judge Bitney could also see Carroll's posts, photographs, and other information that she provided on her profile.¹³ Judge Bitney never disclosed the friendship, Carroll's reactions or comments to his posts, or Carroll's Facebook activity on his News Feed.

¶10 On July 14, 2017, Judge Bitney issued a written decision in favor of Carroll. In relevant part, he found that Carroll had shown "by the greater weight of credible evidence that Mr. Miller has engaged in a pattern of domestic abuse against ... Carroll," which constituted a "substantial change" in the parties' circumstances since the 2011 stipulation.¹⁴ Consequently, he granted Carroll sole legal custody and primary physical placement of Bruce, which he decided was in Bruce's best interest. Judge Bitney also approved Carroll's request to move from Rice Lake, Wisconsin to Durand, Wisconsin and ordered Miller to pay child support.

¶11 The same day that Judge Bitney issued his decision, the guardian ad litem (GAL) appointed to the case was alerted to a Facebook post that Carroll had authored regarding Judge Bitney's favorable ruling.¹⁵ Carroll's post read:

My boys and a [sic] I have been given a chance at greatness, peace, and safety.

The Honorable Judge has granted everything we requested. I'm overwhelmed with emotions and as bitter sweet as this is, we will have better from here on out.

...

I'll be bouncing off [Facebook] to focus all my attention on [Bruce] and helping him through these tough changes.

While viewing Carroll's post, the GAL inadvertently discovered that Carroll was Facebook friends with Judge Bitney.¹⁶ The GAL indicated that she "felt a duty" to immediately alert Miller's counsel of the Facebook friendship and Carroll's recent Facebook post.

¶12 Miller filed a motion for reconsideration, alleging that his due process right to an impartial judge was violated.¹⁷ In denying the motion, Judge Bitney confirmed his Facebook friendship with Carroll, but asserted that he had no bias and that no "reasonable person in the circumstances of Mr. Miller or others ... would seriously call into question the Court's objectivity or impartiality." Judge Bitney based his ruling on the fact that he "did not respond, other than to accept the Facebook friendship request ... [and] did not like any posts, respond to any posts, or conduct any communication ex parte or otherwise with Ms. Carroll, other than simply accepting the Facebook friendship request." He further claimed that on the Monday he accepted Carroll's friend request he "had decided how [he] was going to rule, even though it hadn't been reduced to writing," despite the fact that the parties' briefs were only filed the previous Friday. Judge Bitney did not deny seeing Carroll's reactions, comments, or posts on Facebook. He admitted that the parties "presented accurately the substance of the interaction between Miss Carroll and the Court on Facebook." The record lacked any further clarification of the Facebook interactions between Carroll and Bitney.

¶13 Miller appealed the merits of Judge Bitney's decision and the denial of his motion for reconsideration. On the motion for reconsideration, the court of appeals concluded that Judge Bitney's actions "created a great risk of actual bias, resulting in the appearance of partiality." Miller v. Carroll, 2019 WI App 10, ¶2, 386 Wis. 2d 267, 925 N.W.2d 580. In reaching this conclusion, the court of appeals relied upon the timing of the Facebook friendship, the lack of disclosure of the friendship and Carroll's Facebook activity, ex parte communication concerns, and a consideration of this court's ethical rules. Id., ¶¶21-27. The case was remanded for further proceedings before a different circuit court judge.

¶14 Carroll petitioned this court for review, which we granted.

II. STANDARD OF REVIEW

¶15 "The right to an impartial...