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In re Paternity of B. J. M.

Court of Appeals of Wisconsin, District III

February 20, 2019

In re the Paternity of B. J. M.:
v.
Angela L. Carroll, Joint-Petitioner-Respondent. Timothy W. Miller, Joint-Petitioner-Appellant,

          APPEAL from orders of the circuit court for Barron County No. 2011PA46PJ MICHAEL J. BITNEY, Judge. Reversed and cause remanded with directions.

          Before Stark, P.J., Hruz and Seidl, JJ.

          SEIDL, J.

         ¶1 Timothy Miller appeals an order granting Angela Carroll's motion for modification of custody and physical placement of their minor son, Bruce, [1] and establishing child support payments by Miller. He also appeals an order denying his motion for reconsideration. Miller argues the circuit court demonstrated objective bias by accepting a Facebook "friend" request from Carroll after a contested evidentiary hearing, but before issuing a decision on Carroll's motion.[2]

         ¶2 This case involves what appears to be an issue of first impression in Wisconsin: a claim of judicial bias arising from a judge's use of electronic social media (ESM). Although we need not determine whether a bright-line rule prohibiting the judicial use of ESM is appropriate or necessary, we conclude that the circuit court's undisclosed ESM connection with a current litigant in this case created a great risk of actual bias, resulting in the appearance of partiality. Accordingly, Miller has demonstrated the judge was objectively biased. We therefore reverse and remand the case for further proceedings before a different judge.

         BACKGROUND

         ¶3 In 2011, pursuant to the parties' stipulation, the circuit court entered an order granting Miller and Carroll joint legal custody and shared physical placement of Bruce. Five years later, in August 2016, Carroll filed a motion to modify the order, seeking sole legal custody and primary physical placement of Bruce, and an order for child support payments from Miller.

         ¶4 On June 7 and 8, 2017, an evidentiary hearing on Carroll's motion was held before Judge Michael Bitney. As relevant to this appeal, Carroll introduced evidence at the hearing that Miller had engaged in a pattern of domestic abuse against her. Miller denied Carroll's allegations. At the conclusion of the hearing, Judge Bitney took the matter under advisement and gave the parties ten days to submit written arguments.

         ¶5 The parties submitted their final written arguments on June 16, 2017. Three days later, Judge Bitney accepted a Facebook "friend" request from Carroll. This Facebook connection was not disclosed to Miller or his counsel.

         ¶6 From the time the Facebook connection was established until Judge Bitney issued his written decision on Carroll's motion, Carroll "liked" eighteen of Judge Bitney's Facebook posts and commented on two of his posts.[3] None of these "likes" or comments were directly related to the pending litigation. Judge Bitney did not "like" or comment on any of Carroll's posts, nor did he reply to any of her comments on his posts. However, at a later hearing, Judge Bitney did not deny reading any posts made by Carroll.

         ¶7 During this same timeframe-i.e., from the establishment of the Facebook connection until issuance of the decision on Carroll's motion-Carroll also "liked" multiple third-party posts and "shared" one third-party photograph related to domestic violence.[4] Although there is no evidence Judge Bitney ever directly observed the third-party posts, it is undisputed that, due to the nature of a Facebook "friendship," Carroll's activity could have appeared on his Facebook "newsfeed."

         ¶8 On July 14, 2017, the circuit court issued a written decision. In relevant part, the court found Carroll had shown "by the greater weight of credible evidence that Mr. Miller has engaged in a pattern of domestic abuse against … Carroll." The court then found this pattern of domestic abuse constituted a substantial change in the parties' circumstances since entry of the 2011 custody and physical placement order. Consequently, the court granted Carroll sole legal custody and primary physical placement of Bruce. The court also ordered the parties to submit updated financial disclosure statements in order to determine Miller's child support obligations "in light of the changes regarding physical placement."[5] Further, the court granted Carroll permission to move with Bruce from Rice Lake to Durand.

         ¶9 That same day, the guardian ad litem (GAL) for Bruce "was made aware of a Facebook post authored by Ms. Carroll regarding the court order." The GAL searched for and located this post, which read in relevant part that "[t]he Honorable Judge has granted everything we requested." During her search, the GAL also "inadvertently discovered" that Carroll and Judge Bitney were Facebook "friends." The GAL reported the Facebook connection to Miller's counsel, who in turn informed Miller.

         ¶10 Miller confirmed the Facebook connection between Carroll and Judge Bitney. He then moved the circuit court for reconsideration of its decision under Wis.Stat. § 805.17(3) (2017-18), [6] and for relief from the order under Wis.Stat. § 806.07. Miller argued, in relevant part, that Judge Bitney's Facebook connection with Carroll during the pendency of the proceedings gave rise to the appearance of partiality. Thus, Miller requested judicial disqualification and a new hearing.

         ¶11 At a hearing on Miller's motion, Judge Bitney confirmed that he had accepted Carroll's friend request after the custody hearing and before rendering his written decision. However, he concluded he was not subjectively biased by accepting Carroll's "friend" request, because he already "had decided how I was going to rule, even though it hadn't been reduced to writing." Further, he concluded that "[e]ven given the timing of" his and Carroll's Facebook connection, the circumstances did not "rise[] to the level of objective bias …." Consequently, he denied Miller's motion. Miller now appeals.

         DISCUSSION

         ¶12 The right to an impartial judge is fundamental to the notion of due process under both the United States and Wisconsin Constitutions. See State v. Goodson, 2009 WI.App. 107, ¶8, 320 Wis.2d 166, 771 N.W.2d 385. We presume that a judge has acted fairly, impartially, and without bias; however, this presumption is rebuttable. Id. To determine if the presumption in favor of a judge's impartiality has been rebutted, we generally apply two tests: one subjective and one objective. Id. Here, ...


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