In re the Paternity of B. J. M.:
Angela L. Carroll, Joint-Petitioner-Respondent. Timothy W. Miller, Joint-Petitioner-Appellant,
from orders of the circuit court for Barron County No.
2011PA46PJ MICHAEL J. BITNEY, Judge. Reversed and cause
remanded with directions.
Stark, P.J., Hruz and Seidl, JJ.
Timothy Miller appeals an order granting Angela Carroll's
motion for modification of custody and physical placement of
their minor son, Bruce,  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
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
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.
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.
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.
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. 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.
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. 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."
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." Further, the
court granted Carroll permission to move with Bruce from Rice
Lake to Durand.
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
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),  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.
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.
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, ...