Court’s Decision to Take Up Facebook Case Doesn’t Make Much Sense

By Attorney Gregg Herman
August 28, 2020

On June 16, the Supreme Court of Wisconsin issued its opinion in Miller v. Carroll, 2020 WI 56, a case involving a judge’s decision to accept a Facebook friend request from a mother in a custody and placement dispute.

Four justices joined the majority opinion, from Justice Rebecca Dallett, excluding one footnote. Three of the justices in the majority filed concurring decisions, including Dallett who concurred with her own opinion (huh?). Justice Brian Hagedorn filed a dissenting opinion, most of which was joined by two other justices.

Background

The facts involved a circuit-court judge who accepted a Facebook friend request from the mother in a custody and placement dispute involving a domestic violence issue after presiding over a contested hearing but before rendering a decision. In the course of the 25-day Facebook “friendship” before the court’s ruling, the mother “liked”, “loved” or commented on a number of the judge’s Facebook posts, as well as shared some third-party posts related to domestic violence. The judge never disclosed the Facebook friendship or the communications to the father or his lawyer and ultimately ruled entirely in the mother’s favor.

After the father learned of the Facebook relationship, he moved for reconsideration of the court’s decision. The trial court denied the motion, stating that he was not biased and had decided on his ruling prior to the Facebook relationship. He further stated that “no reasonable person in the circumstances of [the father] or others…would seriously call into question the Court’s objectivity of impartiality.”

The court of appeals, apparently not such a “reasonable person”, reversed and the Supreme Court affirmed.

 “Serious Risk of Actual Bias”

The Supreme Court held that there was a due-process violation since “[T]he totality of the circumstances and the extreme facts of this case, viewed objectively, rise to the level of a serious risk of actual bias, which rebuts the presumption of Judge Bitney’s impartiality … Accordingly, this matter must be reversed to proceed before a different circuit court judge.”

The result is a case which is so limited in scope as to be worthless in application to other matters. I mean, how often do judges (a) issue written decisions after a trial and, (b) in the interim between the trial and decision, accept a litigant as a “friend” and, (c) not inform the other party of the friendship and, (d) receive information by social media regarding an issue at play during the trial? The answer: Not often. In fact, other than in this case, probably never.

Which raises one question: Why did the Supreme Court even accept review in the case when the Court of Appeals opinion dealt perfectly well with this “extreme” fact situation. The Supreme Court totally ignored the recommendation of the amicus brief by the Wisconsin Chapter of the American Academy of Matrimonial Lawyers and reiterated in my previous column (Gregg Herman, “Who Wants to be Friends – With a Judge?” WLJ, December, 2019) to appoint a committee to study the role of judges and social media.

That’s a shame. Since judges are political animals, both by nature and election law, social media will always play a role. At the same time, public confidence in the court system can only be strengthened by knowing that there are limits to the use of social media. This is especially true when the stakes in court are high – and it’s difficult to think of higher stakes than the well-being of children.

Conclusion

Using the Miller case as the baseline would violate the principle of “bad facts make bad law.” The danger is that as much as the Supreme Court seemed to try to limit its holding, the extreme facts of this case, since – for whatever reason – the justices decided that the Court of Appeals decision needed further review, set a very, very, low baseline. Good law would require broader consideration of a difficult and complex issue. This would require detailed consideration and thought, which is difficult to do when considering only one fact situation – and a highly unusual one at that.

Editor’s Note: This column was previously published in the Wisconsin Law Journal.

Attorney Gregg Herman is a founding partner of Loeb & Herman S.C. in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.