Friends with the Judge

By Attorney Gregg Herman
June 30, 2020

WI Supreme Court

On June 16, 2020, the Supreme Court of Wisconsin issued their opinion in Miller v. Carroll, 2020 WI 56, which affirmed the published decision of the Court of Appeals.

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

Facebook Friend Request

The facts involved a circuit court judge who accepted a Facebook friend request from the mother in a custody/placement dispute involving a domestic violence issue after a contested hearing, but before rendering a decision. In the course of their 25-day Facebook “friendship” prior to the court’s ruling, the mother “liked”, “loved” or commented on a number of the judge’s Facebook posts as well as sharing 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 he 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.

Due Process Violation

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 the trial (b) in the interim between the trial and decision accept a litigant as a “friend” (c) not inform the other party of the friendship and (d) receive information via social media regarding an issue at play during the trial? The answer: Not real often. In fact, other than this case, probably never.

Which makes one question why the Supreme Court even accepted 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 prior 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 laws, social media will always play a role. At the same time, the public confidence in the court system can only be enhanced by knowing that there are limits for 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 base line 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 the case, since – for whatever reason – they decided that the Court of Appeals decision needed further review, it sets a very, very, low base line. 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.

Photo Credit: State Bar of Wisconsin

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.