2020 WI 56
SUPREME COURT OF WISCONSIN
CASE NO.:
2017AP2132
COMPLETE TITLE:
In re the Paternity of B. J. M.:
Timothy W. Miller,
Joint-Petitioner-Appellant,
v.
Angela L. Carroll,
Joint-Petitioner-Respondent-
Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 386 Wis. 2d 267,925 N.W.2d 580
PDC No:2019 WI App 10 - Published
OPINION FILED:
June 16, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
January 13, 2020
SOURCE OF APPEAL:
COURT:
Circuit
COUNTY:
Barron
JUDGE:
Michael J. Bitney
JUSTICES:
ATTORNEYS:
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.
2
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.
2020 WI 56
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2132
(L.C. No.
2011PA46PJ)
STATE OF WISCONSIN :
IN SUPREME COURT
In re the Paternity of B.J.M.:
Timothy W. Miller,
Joint-Petitioner-Appellant,
v.
Angela L. Carroll,
Joint-Petitioner-Respondent-
Petitioner.
FILED
JUN 16, 2020
Sheila T. Reiff
Clerk of Supreme Court
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.
REVIEW of a decision of the Court of Appeals. Affirmed.
1
REBECCA FRANK DALLET, J. 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.
No. 2017AP2132
2
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
1
Judge Michael Bitney of the Barron County Circuit Court
presided.
2
Miller v. Carroll, 2019 WI App 10, 386 Wis. 2d 267, 925
N.W.2d 580.
No. 2017AP2132
3
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,
3
For consistency, we will use the same pseudonym for the
parties' minor son as utilized by the court of appeals. Miller,
386 Wis. 2d 267, 1 n.1.
4
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
No. 2017AP2132
4
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
5
Facebook friendship is established by the acceptance of a
previously sent "friend" request. See Law Offices of Herssein &
Herssein, P.A. v. United Servs. Auto. Ass'n, 271 So. 3d 889, 895
(Fla. 2018).
6
Facebook users can click a "like" button, which is
represented by a thumbs-up icon, to "like" a Facebook page or
post. See Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013).
In 2016, Facebook also included other "reactions" in addition to
the "like" button: Love, Haha, Wow, Sad, or Angry.
https://about.fb.com/news/2016/02/reactions-now-available-
globally/.
As the parties admit, the record may not include all of
Carroll's Facebook activity with Judge Bitney.
7
Some of the posts that Carroll "liked" include:
Dear Lord, give me this day the grace to be charitable
in thought, kind in deed and loving in speech toward
all. Amen.
No. 2017AP2132
5
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
Whoever sows sparingly shall reap sparingly, whoever
sows generously will reap generously. God loves a
cheerful giver!
Lord, may I be a doer of your word and not a hearer
only.
Dear Lord, restore us by the repose of sleep after our
day's work is done so that renewed by your help I may
serve you in body and soul through Christ our Lord.
Amen.
May the Gospel transform our lives that we may witness
it to those around us. Amen
Come to me all you who labor and are burdened, and I
will give you rest. Matthew 11:28.
Lord Jesus you have chosen me to be your disciple.
Take & use what I can offer, however meager it may be
for the greater glory of your name.
8
Carroll "loved" the following Bible verse that Judge
Bitney posted: "Fear no one. Matthew 10:26."
No. 2017AP2132
6
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
9
A Facebook user who posts content will receive a
notification from each user who likes the post. See Olivia
League, Whether You Like it or Not Your "Likes" are Out: An
Analysis of Nonverbal Conduct in the Hearsay Context, 68 S.C. L.
Rev. 939, 948 (2017); https://www.facebook.com/help/166890600000
6551?helpref=popular_topics.
10
Facebook allows a user's friends to see public events
that a user has selected "interested in."
See https://www.facebook.com/help/151154081619755?helpref=uf_per
malink.
11
"Sharing" a Facebook post means that it will show up on
your friends' News Feeds and on your profile.
See https://www.facebook.com/help/333140160100643.
No. 2017AP2132
7
"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.
12
The News Feed is a "constantly updating list of stories
in the middle of [the user's] home page. News Feed includes
status updates, photos, videos, links, app activity and likes
from people, Pages and groups."
https://www.facebook.com/help/1155510281178725.
13
See Parker v. State, 85 A.3d 682, 685 (Del. 2014) ("[A]
user will post content——which can include text, pictures, or
videos——to that user's profile page delivering it to the
author's subscribers.").
14
Wisconsin Stat. § 767.451(1)(b) requires a "substantial
change of circumstances since the entry of the last order
affecting legal custody" in order for a court to modify a
custody or physical placement order "where the modification
would substantially alter the time a parent may spend with his
or her child."
No. 2017AP2132
8
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
15
A GAL was appointed to the case pursuant to Wis. Stat.
§ 767.481(2)(c)3.
16
A Facebook user's "friend" list appears on her profile
page. See Strunk v. State, 44 N.E.3d 1, 5 (Ind. Ct. App. 2015).
17
Miller did not bring a claim for judicial
disqualification pursuant to Wis. Stat. § 757.19, and there is
no evidence that he filed an ethics complaint with the Judicial
Commission.
No. 2017AP2132
9
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
No. 2017AP2132
10
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 judge is fundamental to our
notion of due process." State v. Goodson, 2009 WI App 107, ¶8,
320 Wis. 2d 166, 771 N.W.2d 385; see also Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 876 (2009) ("It is axiomatic that
'[a] fair trial in a fair tribunal is a basic requirement of due
process.'" (alteration in original) (quoted source omitted));
U.S Const. amends. V, XIV; Wis. Const. art. I, § 8. Whether
Judge Bitney's partiality can reasonably be questioned is a
matter of law that we review de novo. Goodson, 320 Wis. 2d 166,
¶7.
16
We presume that a judge has acted fairly, impartially,
and without bias. State v. Herrmann, 2015 WI 84, ¶24, 364
Wis. 2d 336, 867 N.W.2d 772; Goodson, 320 Wis. 2d 166, ¶8. To
overcome that presumption, the burden is on the party asserting
judicial bias to show bias by a preponderance of the evidence.
Herrmann, 364 Wis. 2d 336, 24. If a party rebuts this
presumption and shows a due process violation, the error is
structural and not subject to a harmless error analysis. See
Williams v. Pennsylvania, __ U.S. __, 136 S. Ct. 1899, 1909
(2016) ("[A]n unconstitutional failure to recuse constitutes
structural error . . . .").
No. 2017AP2132
11
III. ANALYSIS
17
We begin with background information on what a
Facebook "friendship" entails. We next articulate the standard
for resolving when the probability of actual bias rises to the
level of a due process violation, and apply that analysis to the
facts of this case.
A. Facebook "Friendships"
18
Facebook is a social media and social networking
service with approximately 2.5 billion monthly active users.
See Press Release, Facebook, Facebook Reports Fourth Quarter and
Full Year 2019 Results (Jan. 29, 2020). A user creates a
Facebook profile by entering the user's name, date of birth, and
e-mail address, and registering a password with the site. See
Smith v. State, 136 So. 3d 424, 432 (Miss. 2014). After
creating a profile, a user establishes connections by sending
other users a "friend" request. See Law Offices of Herssein &
Herssein, P.A. v. United Servs. Auto Ass'n, 271 So. 3d 889, 895
(Fla. 2018). The "friended" user must affirmatively accept the
request for the two users to become Facebook "friends." See id.
"Friends" have the ability to view and interact with each
other's Facebook profiles. See State v. Eleck, 23 A.3d 818, 820
n.1 (Conn. App. Ct. 2011).
19
When a Facebook user logs onto her Facebook page, she
is automatically presented with updated activity from her
Facebook "friends" on the Facebook News Feed. See Rembrandt
Soc. Media, LP v. Facebook Inc., 22 F. Supp. 3d 585, 590 (E.D.
Va. 2013). The News Feed is a "constantly updating list of
No. 2017AP2132
12
stories from people and Pages that [the User] follow[s] on
Facebook." Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013)
(alterations in original) (quoted source omitted). Through this
News Feed and access to other user's pages, Facebook allows its
users to "track friends' interests, affiliations, 'likes,' and
general progression through life." Daniel Smith, When Everyone
is the Judge's Pal: Facebook Friendship and the Appearance of
Impropriety Standard, 3 Case W. Res. J.L. Tech. & Internet 66,
97 (2012). A user can interact with Facebook friends on the
site, including "posting and reading comments, events, news,
and, in general, communicating with . . . others." United
States v. Jordan, 678 Fed. Appx. 759, 761 n.1 (10th Cir. 2017)
(unpublished).
20
Facebook categorizes every social connection of a user
as a "friend." "Some [Facebook users] may be friends in the
traditional sense, but others are no more than acquaintances or
contacts or in some cases may even be complete strangers."
United States v. Tsarnaev, 157 F. Supp. 3d 57, 67 n.16 (D. Mass.
2016); see also Chace v. Loisel, 170 So. 3d 802, 803 (Fla. Dist.
Ct. App. 2014) ("The word 'friend' on Facebook is a term of
art."). But, the Facebook user "typically knows massive amounts
of information about each of his Facebook friends——far more than
what he knows about the average 'real-life' acquaintance."
Smith, supra ¶19, at 97. The accessibility of personal
information on popular social media platforms such as Facebook
presents unique concerns and implications regarding the
potential for judicial bias.
No. 2017AP2132
13
B. Judicial Bias and the Due Process Clause
21
"A fair trial in a fair tribunal is a basic
requirement of due process." In re Murchison, 349 U.S. 133, 136
(1955). We presume that a judge has acted fairly, impartially,
and without bias. Herrmann, 364 Wis. 2d 336, ¶24. To overcome
that presumption, the burden is on the party asserting judicial
bias to show bias by a preponderance of the evidence. Id. In
evaluating whether a party has rebutted the presumption,
Wisconsin courts have taken both a subjective and objective
approach. Id., ¶26. A judge must disqualify himself from a
case if he subjectively determines that he is unable to remain
impartial. State v. Walberg, 109 Wis. 2d 96, 105-06, 325
N.W.2d 867 (1982). Judge Bitney indicated that he believed
himself to be fair and impartial, and therefore subjective bias
is not at issue in this case. We focus on Miller's assertion
that Judge Bitney was objectively biased due to the probability
of actual bias.
22
The United States Supreme Court has established that a
serious risk of actual bias can objectively rise to the level of
a due process violation. See, e.g., Caperton, 556 U.S. 868. In
Caperton, the Court reviewed its judicial bias jurisprudence and
identified the previous instances where it had concluded, "as an
objective matter," that recusal was required because "the
probability of actual bias on the part of the judge or
decisionmaker is too high to be constitutionally tolerable."
Id. at 877. Applying existing principles to a new fact pattern,
the Court reaffirmed that a court must assess whether "under a
No. 2017AP2132
14
realistic appraisal of psychological tendencies and human
weakness,' the interest 'poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the guarantee
of due process is to be adequately implemented." Id. at 883-84
(quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). The Court
defined the "risk of actual bias" as a "serious risk of actual
bias——based on objective and reasonable perceptions" and
clarified that "[a]pplication of the constitutional
standard . . . will thus be confined to rare instances." Id. at
884, 890.
23
Since Caperton, this court has decided one case
involving judicial bias, Herrmann, 364 Wis. 2d 336. In
Herrmann, the defendant claimed the circuit court's statements
at sentencing reflected an objective bias. Id., ¶¶21-22. All
members of the court agreed that the defendant had failed to
rebut the presumption of impartiality and cited to Caperton.
However, the Herrmann decision consisted of three separate
writings, none of which garnered the vote of a majority of the
court.
24
To assess whether the probability of actual bias rises
to the level of a due process violation, we apply, verbatim, the
standard from Caperton. We ask whether there is "a serious risk
of actual bias——based on objective and reasonable perceptions."
Caperton, 556 U.S. at 884. "Due process requires an objective
inquiry" into whether the circumstances "would offer a possible
temptation to the average . . . judge to . . . lead him not to
hold the balance nice, clear and true." Id. at 885 (omissions
No. 2017AP2132
15
in original) (quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)).
We acknowledge that it is the exceptional case with "extreme
facts" which rises to the level of a "serious risk of actual
bias." Id. at 886-87; id. at 876 ("[M]ost matters relating to
judicial disqualification [do] not rise to a constitutional
level." (quoted source omitted)).
C. Application
25
We presume that Judge Bitney acted fairly,
impartially, and without prejudice. See Herrmann, 364
Wis. 2d 336, 24. We consider the totality of the circumstances
and conclude that Miller has rebutted this presumption by
showing "a serious risk of actual bias." Caperton, 556 U.S. at
884.
18
These circumstances include: (1) the timing of the
Facebook friend request and Judge Bitney's affirmative
acceptance; (2) the volume of Carroll's Facebook activity and
likelihood Judge Bitney viewed her posts and comments; (3) the
content of the Facebook activity as it related to the context
and nature of the pending proceeding; and (4) Judge Bitney's
lack of disclosure.
26
We first consider the timing of the Facebook
friendship: both when Carroll sent the friend request and when
18
In her concurrence, Justice Ann Walsh Bradley advocates
for an "appearance of bias" framework, relying on language from
pre-Caperton court of appeals decisions, as well as her lead
opinion in State v. Herrmann, 2015 WI 84, 364 Wis. 2d 336, 867
N.W.2d 772. Rather than use the phrase "appearance of bias,"
this opinion relies on the exact language used by the United
States Supreme Court in Caperton v. A.T. Massey Coal Co., 556
U.S. 868 (2009).
No. 2017AP2132
16
Judge Bitney affirmatively accepted it. Although Judge Bitney
had "thousands" of Facebook friends, Carroll was not an
established "friend." Instead, she was a current litigant who
requested to be Judge Bitney's friend only after she testified
at a contested evidentiary hearing in which he was the sole
decision-maker. Judge Bitney had presided over the case since
August of 2016; yet, Carroll friended him after he heard the
evidence and the final briefs were submitted, but before he
rendered a decision. The timing of the friend request implied
that Carroll wanted to influence Judge Bitney's decision on her
motion to modify legal custody, physical placement, and child
support.
27
It is significant that Judge Bitney took the
affirmative step of accepting Carroll's "friend request" prior
to issuing a written decision on her motion. Sending a Facebook
friend request does not automatically mean that the users become
"friends." A user can decline a friend request or simply ignore
it. See Law Offices of Herssein & Herssein, 271 So. 3d at 895
(noting that the "friended" user must affirmatively accept the
request for the two users to become Facebook "friends"). By
accepting Carroll's request, Judge Bitney accepted access to
off-the-record facts that were relevant to the dispute, namely
information regarding Carroll's character and parental fitness.
19
19
In an affidavit filed with the motion for
reconsideration, Miller's sister asserted that Carroll made a
"purposeful switch in [her] Facebook persona to support her
position in the custody dispute," including changing her
pictures and posts "from party type pictures and posts to family
pictures and posts about children and family."
No. 2017AP2132
17
Acceptance of Carroll's friend request enabled Judge Bitney to
view Carroll's Facebook profile and see her posts, "reactions,"
comments, and "shares" on his constantly refreshing News Feed.
Carroll's request, and Judge Bitney's acceptance, put Carroll in
a different position than Miller and caused an improper
asymmetry of access.
28
The likelihood Judge Bitney would have seen Carroll's
Facebook activity is another important factor we consider in
assessing whether there was a "serious risk of actual bias."
Carroll engaged with and "reacted to" a significant number of
Judge Bitney's Facebook posts. Carroll "liked" at least 16 of
Judge Bitney's posts, primarily related to prayers and Bible
verses, "loved" two other posts, and commented on two posts
regarding his knee surgery, including sending him "prayers."
Judge Bitney would have received a Facebook notification for
each of Carroll's reactions and comments. See League, supra ¶8
n.9, at 948 (explaining that when a Facebook user likes another
user's post, "the person who posted the content will get a
notification that [the] user 'liked' his or her post" (footnotes
omitted)). Carroll's Facebook activity also included "liking"
and "sharing" posts and articles related to domestic violence
awareness, and showing she was "interested in" an event
promoting domestic violence awareness.
29
At the reconsideration hearing, Judge Bitney never
denied seeing Carroll's reactions or comments to his posts, or
her "shares," reactions, or "interest in" third-party posts and
events related to domestic violence awareness, despite having an
No. 2017AP2132
18
opportunity to do so. Moreover, Judge Bitney was very active on
Facebook during this time period, thus increasing the likelihood
of him seeing Carroll's "likes," "loves," and "shares" on
Facebook.
20
The significant number of undisclosed contacts
between Judge Bitney and Carroll in the 25 days before Judge
Bitney rendered a decision entirely in Carroll's favor increased
the likelihood of a serious risk of actual bias.
30
We further consider the context and nature of the
pending litigation when assessing the serious risk of actual
bias. This was a custody dispute in which Judge Bitney was the
sole factfinder regarding the character and parental fitness of
Miller and Carroll. His decision on the placement and custody
of Bruce was necessarily driven by his personal evaluation of
both parties, as their personal lives were relevant and the
subject of extensive testimony from 15 witnesses. Carroll and
Miller had an opportunity at the hearing to portray themselves
in the best light. However, Carroll was provided with
additional opportunities to do this for 25 days through her
access to Judge Bitney via Facebook.
20
The record does not provide conclusive evidence that
Judge Bitney read any of Carroll's posts, but any evidence to
the contrary is notably absent. Facebook uses an algorithm to
determine which posts are most relevant and engaging to each
user and then presents them at the top of the user's News Feed.
A user will not see posts from each and every Facebook friend,
so it is not guaranteed that Judge Bitney would have seen the
posts by simply scrolling through his feed. The converse is
also true; it cannot be guaranteed that Judge Bitney did not see
Carroll's posts. See generally https://buffer.com/library/faceb
ook-news-feed-algorithm.
No. 2017AP2132
19
31
The Facebook activity, including 18 "reactions" and
two comments, was relevant to the decision-making process in a
proceeding like this one, where Carroll's character, fitness,
and credibility were paramount. Carroll was allowed the
opportunity to give Judge Bitney additional information about
herself and an extra "remember me" almost 25 different times
during the time period when the matter was under advisement, all
unbeknownst to Miller. By reacting to and engaging with Judge
Bitney's posts, Carroll was effectively signaling to Judge
Bitney that they were like-minded and, for that reason, she was
trustworthy. She was conveying to him off-the-record
information about her values, character, and parental fitness——
additional evidence Miller did not have the opportunity to
rebut. Under a "realistic appraisal of psychological tendencies
and human weaknesses," this off-the-record information about
Carroll, created a serious risk of actual bias. Caperton, 556
U.S. at 883 (quoted source omitted).
32
It is also striking that a portion of Carroll's
Facebook activity was related to her main allegation against
Miller at the contested hearing: domestic violence. Carroll
"shared" third-party posts related to domestic violence,
"reacted" to articles about the effects of domestic violence,
21
and showed herself as "interested in" a domestic violence
21
Had Carroll sent Judge Bitney a letter containing a
domestic violence article, which he then read, he undoubtedly
would have had to disclose that information to the parties.
Carroll fails to distinguish that situation from the case at
hand.
No. 2017AP2132
20
awareness event. Allegations of domestic violence formed the
basis for Carroll's motion to modify child custody and
placement, and a finding of domestic violence formed the basis
for Judge Bitney's decision. Carroll's Facebook activity
supported her allegation that Miller had committed domestic
violence against her and that she should therefore be awarded
custody. But unlike the information presented at the hearing,
Miller was unaware that Judge Bitney had access to this off-the-
record information.
33
Finally, we consider Judge Bitney's lack of
disclosure, at any point, in any way or form, as an important
factor in assessing the serious risk of actual bias. Youkers v.
State, 400 S.W.3d 200 (Tex. App. 2013), provides guidance as to
how a judge should respond to communications from a social media
connection. In Youkers, a Texas court of appeals considered a
judicial bias claim based on a trial judge's designation as a
Facebook friend of the victim's father. Id. at 204-07. The
victim's father had sent the judge a private message on Facebook
asking for leniency for the defendant. Id. at 204. The judge
responded to the message, advising the father that the message
was in violation of rules precluding ex parte communications,
stating that he stopped reading the message once he realized the
message was improper, and warning that any further messages
about the case would result in the two no longer being Facebook
friends. Id. The judge also advised the father that he was
placing the communication in the court's file, disclosing the
message to the lawyers on the case, and contacting the judicial
No. 2017AP2132
21
conduct commission to determine if further steps were required.
Id.
34
Unlike in Youkers, where the judge took affirmative
steps following the communications, Judge Bitney failed to
disclose the friendship and the subsequent communications.
22
Judge Bitney could have initially ignored or denied Carroll's
friend request and disclosed the request to the parties. He
could have also disclosed the Facebook friendship when he
received notification of Carroll's reactions to his posts,
unfriended Carroll on Facebook, or changed his security settings
to hide her posts from appearing on his News Feed.
23
Instead,
Judge Bitney failed to disclose the friendship or other Facebook
activity, and the friendship was discovered only after Judge
22
Judges should be cautious when using social media and
appreciate the risk of ex parte communications being sent
through social media sites. According to Black's Law
Dictionary, an "ex parte communication" is a "communication
between counsel or a party and the court when opposing counsel
or party is not present." Ex parte communication, Black's Law
Dictionary 337 (10th ed. 2014). The court of appeals concluded
that "[t]he Facebook connection between Carroll and Judge Bitney
involved ex parte communications" because Carroll sent, and
Judge Bitney accepted, the Facebook friend request without
Miller's knowledge. Miller, 386 Wis. 2d 267, ¶24. Further, the
court noted that "ex parte communication occurred to the extent
Judge Bitney and Carroll viewed each other's Facebook posts."
Id. Although we do not explicitly focus on "ex parte
communication concerns" as one of the factors in our analysis,
see id., ¶¶24-26, we do consider the undisclosed nature of the
communications as an important factor in assessing the serious
risk of actual bias.
23
Facebook allows its users to control what content appears
on their respective News Feed. See
https://www.facebook.com/help/964154640320617/?helpref=hc_fnav
No. 2017AP2132
22
Bitney issued his decision. Because of Judge Bitney's lack of
any means of disclosure, Miller was unable to review the
interactions between Judge Bitney and Carroll and have an
opportunity to refute what Judge Bitney might have seen Carroll
post or share.
35
The 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. The serious risk of actual bias is
a structural error, which is "different from regular trial
errors because they 'are structural defects in the constitution
of the trial mechanism, which defy analysis by "harmless-error"
standards.'" State v. Pinno, 2014 WI 74, 49, 356 Wis. 2d 106,
850 N.W.2d 207 (quoted source omitted). Accordingly, this
matter must be reversed to proceed before a different circuit
court judge since it is difficult to determine "how the error
affected the trial."
24
Id.; see also Williams, 136 S. Ct. at
1909 ("The Court has little trouble concluding that a due
process violation arising from the participation of an
interested judge is a defect 'not amenable' to harmless-error
review, regardless of whether the judge's vote was dispositive."
(quoting Puckett v. United States, 556 U.S. 129, 141 (2009)));
see also Pinno, 356 Wis. 2d 106, 50 (noting that a "biased
judge" is a structural error).
24
We need not reach the merits of Judge Bitney's
determination as it relates to legal custody, physical
placement, and child support.
No. 2017AP2132
23
IV. CONCLUSION
36
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.
By the Court.—The decision of the court of appeals is
affirmed.
No. 2017AP2132.awb
1
37
ANN WALSH BRADLEY, J. (concurring). In a unanimous
opinion, the court of appeals concluded that "the circuit
court's undisclosed [electronic social media] 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."
Miller v. Carroll, 2019 WI App 10, ¶2, 386 Wis. 2d 267, 925
N.W.2d 580. I agree.
38
Although I join the majority opinion
1
, I write
separately because its analysis fails to discuss the role that
appearance of bias can play in the due process analysis.
Additionally, it neglects to inform the reader that its analysis
is at odds with this court's "hands-off" approach in certain due
process challenges. The following provides the rest of the
story.
I
39
There is no need to repeat the facts, as the majority
opinion has aptly set them forth. Suffice it to say that on the
motion for reconsideration and relief from the prior order,
2
Miller argued that Judge Bitney's Facebook friendship with the
opposing party, Carroll, gave rise to the appearance of
partiality. Differentiating between subjective and objective
bias, Judge Bitney opined that he was not subjectively biased
and that the facts here did not support a conclusion that he was
objectively biased. Id., 11.
1
I join the majority opinion with the exception of footnote
18.
2
See Wis. Stat. §§ 805.17(3), 806.07.
No. 2017AP2132.awb
2
40
The analysis in this case is best understood in light
of a short preface detailing the development of the case law in
this area. In determining whether a defendant's due process
right to trial by an impartial and unbiased judge
3
has been
violated, Wisconsin courts have examined both subjective bias
and objective bias. State v. Rochelt, 165 Wis. 2d 373, 378, 477
N.W.2d 659 (Ct. App. 1991). The subjective test is based on the
judge's own determination of his or her impartiality and the
objective test is premised on whether a reasonable person could
question the judge's impartiality. State v. Gudgeon, 2006 WI
App 143, ¶¶20-21, 295 Wis. 2d 189, 720 N.W.2d 114.
41
Objective bias can exist in two situations: (1) where
objective facts create a serious risk of actual bias; or (2)
where objective facts demonstrate that a judge actually treated
a party unfairly. State v. Goodson, 2009 WI App 107, ¶9, 320
Wis. 2d 166, 771 N.W.2d 385; Caperton v. A.T. Massey Coal Co.,
Inc., 556 U.S. 868, 884 (2009). The Gudgeon court recognized
that the appearance of partiality violated due process "only
where the apparent bias revealed a great risk of actual bias."
Gudgeon, 295 Wis. 2d 189, 23.
42
It continued that "the appearance of bias offends
constitutional due process principles whenever a reasonable
person——taking into consideration human psychological tendencies
and weaknesses——concludes that the average judge could not be
trusted to 'hold the balance nice, clear and true' under all the
3
Although I use the term "judge," such term encompasses
municipal court judges, circuit court judges, judges of the
court of appeals, and justices of this court.
No. 2017AP2132.awb
3
circumstances." Id., 24. Further, the court emphasized that
the appearance of bias is to be examined "based on what a
reasonable person would conclude[,] . . . not what a reasonable
trial judge, a reasonable appellate judge, or even a reasonable
legal practitioner would conclude." Id., ¶26. Importantly,
these statements recognize that the right to an impartial
decisionmaker encompasses the appearance of bias and not simply
the absence of actual bias.
43
Less than a month after the court of appeals applied
the above-cited Gudgeon framework in Goodson, 320 Wis. 2d 166,
the United States Supreme Court issued its opinion in Caperton,
556 U.S. 868. The Caperton court determined that actual bias
need not be shown to establish a violation of a party's right to
a fair tribunal, reaffirming its previous declaration that "to
perform its high function in the best way 'justice must satisfy
the appearance of justice.'" In re Murchison, 349 U.S. 133, 136
(1955) (quoting Offutt v. United States, 348 U.S. 11, 14
(1954)).
44
The Caperton court embraced a "probability of actual
bias" standard ("the probability of actual bias on the part of
the judge or decisionmaker is too high to be constitutionally
tolerable"). Caperton, 556 U.S. at 877 (quoting Withrow v.
Larkin, 421 U.S. 35, 47 (1975)). Ultimately, it set forth the
essential inquiry into judicial bias, when there is no actual
bias, as whether there is "a serious risk of actual bias——based
on objective and reasonable perceptions . . . ." Caperton, 556
U.S. at 884 (emphasis added).
No. 2017AP2132.awb
4
45
Indeed, the Caperton court specified that it was not
addressing whether there was actual bias present:
We do not question his subjective findings of
impartiality and propriety. Nor do we determine
whether there was actual bias. . . .
[T]he Due Process Clause has been implemented by
objective standards that do not require proof of
actual bias. In defining these standards the Court
has asked whether, "under a realistic appraisal of
psychological tendencies and human weakness," the
interest "poses such a risk of actual bias or
prejudgment that the practice must be forbidden if the
guarantee of due process is to be adequately
implemented."
Caperton, 556 U.S. at 882-84 (quoting Withrow, 421 U.S. at 47).
It further made clear that "[d]ue process 'may sometimes bar
trial by judges who have no actual bias and who would do their
very best to weigh the scales of justice equally between
contending parties.'" Id. at 886 (quoting Murchison, 349 U.S.
at 136).
46
If under Caperton, something less than actual bias can
be held to violate due process, then what is it?
47
The Caperton court relied upon basic principles from
its precedent to inform the discussion. It employed terms such
as "probability" and "perception" in framing a standard and
inquiry. Scholars and commentators differ on what role the
Murchison "appearance of bias" plays in the Caperton due process
analysis. See, e.g., Comments, Caperton v. A.T. Massey Coal
Co.: Due Process Limitations on the Appearance of Judicial
Bias, 123 Harv. L. Rev. 73, 78-79 (2009) (collecting three
disparate views).
No. 2017AP2132.awb
5
48
Some insight can be gleaned from a review of the
transcript of the oral argument in Caperton. Two of the
justices in the five justice majority opinion indicated that
they viewed standards set by prior cases——"appearance of bias"
and "probability of bias"——as synonymous. So do I. To the mix,
the Caperton opinion added the synonymous term "perception."
49
At oral argument, Justice Ginsburg commented that past
cases used the terms "appearance [of bias]," "probability of
bias," and "likelihood of bias" interchangeably. Referring to
one of those past cases she stated:
I think of Justice Marshall's decision in Peters and
Kiff, involving a grand jury, and he said that due
process is denied in circumstances creating the
likelihood or the appearance of bias. And there are
other decisions, too, that use those terms
interchangeably. So I don't know that probability of
bias, likelihood of bias, appearance——that——those seem
to me synonyms.
Transcript of Oral Argument at 34-35, Caperton, 556 U.S. 868
(No. 08-22).
4
50
In response to counsel's answer that appearance of
bias was not part of the due process inquiry, Justice Stevens
responded, "You don't think the community's confidence in the
way judges behave is an important part of due process?" Id. at
36. Justice Kennedy subsequently interjected, "But our whole
system is designed to ensure confidence in our judgments." Id.
at 37.
4
See Peters v. Kiff, 407 U.S. 493, 502 (1972) ("Moreover,
even if there is no showing of actual bias in the tribunal, this
Court has held that due process is denied by circumstances that
create the likelihood or the appearance of bias.").
No. 2017AP2132.awb
6
51
The upshot of the analysis is that when appearance of
bias is part of a due process challenge, it comes with an
exacting standard. A defendant may rebut the presumption of
impartiality by demonstrating that the appearance of bias
reveals a serious risk of actual bias. Caperton, 556 U.S. at
884-85; Goodson, 320 Wis. 2d 166, ¶14; Gudgeon, 295 Wis. 2d 189,
23.
5
This "appearance of bias" framework has been reliably
applied in the courts of this state. See, e.g., State v. Dylan
S., 2012 WI App 25, ¶30, 339 Wis. 2d 442, 813 N.W.2d 229; State
v. Marcotte, 2020 WI App 28, 17, 392 Wis. 2d 183, 943
N.W.2d 911
52
Caperton emphasizes, as does the majority here, that
it is only the "exceptional case" with "extreme facts" that will
rise to the level of a due process violation on account of the
serious risk of actual bias. Majority op., ¶24 (citing
Caperton, 556 U.S. at 876, 886-87). As the Caperton court
further observed, because almost every state has a code of
conduct with more rigorous recusal standards than due process
requires, most recusal disputes will be resolved without resort
to the Constitution, making the constitutional standard's
application rare.
"The Due Process Clause demarks only the outer
boundaries of judicial disqualifications. Congress
and the states, of course, remain free to impose more
rigorous standards for judicial disqualification than
those we find mandated here today." Because the codes
of judicial conduct provide more protection than due
process requires, most disputes over disqualification
5
See also State v. Herrmann, 2015 WI 84, ¶3, 364
Wis. 2d 336, 867 N.W.2d 772 (Ann Walsh Bradley, J., lead op.).
No. 2017AP2132.awb
7
will be resolved without resort to the Constitution.
Application of the constitutional standard implicated
in this case will thus be confined to rare instances.
Caperton, 556 U.S. at 889-90 (quoting Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813, 828 (1986)).
II
53
As the present case demonstrates, review is available
to a litigant who advances a due process challenge when a judge
decides to remain on a case after a motion for recusal. This is
a subject with which this court has some familiarity. See State
v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863 (per
curiam); State v. Henley, 2011 WI 67, 338 Wis. 2d 610, 802
N.W.2d 175 (per curiam).
54
In furtherance of the "rest of the story" referenced
above, I observe that the majority opinion here is at odds with
Henley, 338 Wis. 2d 610. In Henley, the majority determined
that when this court is faced with a motion to disqualify a
single justice from a case, it is powerless to overturn that
justice's determination: "determining whether to recuse is the
sole responsibility of the individual justice for whom
disqualification from participation is sought . . . ." Id.,
¶39.
55
The majority in Henley made this determination without
benefit of briefs or argument on the issue. Claiming a
powerlessness to act, the majority in essence treated the due
process claim challenging the participation of a justice as
nonjusticiable. Thus, Henley's circle-the-wagons response
cannot peacefully coexist with the majority's due process
analysis.
No. 2017AP2132.awb
8
56
Although, as here, a judge against whom bias is
asserted may determine that no bias exists, reviewing courts, at
whatever level, still have a role to play. When called upon to
review an asserted due process violation for the failure to
recuse, a reviewing court objectively determines whether the
failure to recuse is consistent with due process principles.
57
Caperton announced the need for objective review of
recusal challenges, regardless of the level of the court.
Indeed, the Caperton court, which involved a review of the
recusal decision of a justice on the West Virginia Supreme
Court, declared:
[O]bjective standards may also require recusal whether
or not actual bias exists or can be proved. Due
process "may sometimes bar trial by judges who have no
actual bias and who would do their very best to weigh
the scales of justice equally between contending
parties." The failure to consider objective standards
requiring recusal is not consistent with the
imperatives of due process.
Caperton, 556 U.S. at 886 (quoting Murchison, 349 U.S. at 136).
58
The majority opinion in the present case follows
Caperton, and explicitly adopts the "objective inquiry" it
mandates in a due process analysis addressing the failure to
recuse. Majority op., ¶24. It is thus fundamentally
inconsistent with the approach taken by the Henley majority.
The Henley court ignored the Caperton mandate referenced above
that "[t]he failure to consider objective standards requiring
recusal is not consistent with the imperatives of due process."
Caperton, 556 U.S. at 886.
No. 2017AP2132.awb
9
59
When the motion for recusal is made only to the judge
against whom bias is asserted, and no review is requested, then
Henley gets it half right: the decision regarding recusal
begins and ends with the decision of that judge. But when a
court is called upon to review a recusal decision, whether by
appellate review or motion to this court, such a determination
is no longer solely up to the judge against whom bias is
asserted.
60
If a constitutional due process challenge is asserted,
it is up to the reviewing court to address the issue. Any
language to the contrary does not pass constitutional muster as
framed by Caperton and should be withdrawn. See also Polsky v.
Virnich, 2011 WI 69, ¶4, 335 Wis. 2d 555, 804 N.W.2d 80 (per
curiam) (opining that "this court does not have the power to
remove a justice from participating in an individual proceeding,
on a case-by-case basis" and that "due process is provided by
the decisions of the individual justices who decide to
participate in the cases presented to the court"); Wis. S. Ct.
IOP III.L.1 (Sept. 12, 2019) ("The decision of a justice to
recuse or disqualify himself or herself is that of the justice
alone.").
61
It would be incongruous for the Caperton due process
standard to apply to our review of a circuit court or court of
appeals judge's determination to recuse, yet leave the decision
to a single justice's determination when such a due process
issue is presented in this court. Due process is due process.
The right to a fair tribunal exists no matter the level of the
No. 2017AP2132.awb
10
court. As uncomfortable as it may be, our internal operating
procedure cited above does not take precedence over the United
States Supreme Court's statements in Caperton.
62
What is at stake is nothing less than the
institutional legitimacy of our courts:
Appearances matter because the judiciary's reputation
is essential to its institutional legitimacy——that is,
to the public's respect for and willingness to abide
by judicial decisionmaking. Indeed, scholars of the
federal court system suggest that the public's
perception of the judiciary's independence and
integrity is the primary source of its legitimacy, and
ultimately its power.
Amanda Frost, Keeping Up Appearances: A Process-Oriented
Approach to Judicial Recusal, 53 U. Kan. L. Rev. 531, 532
(2005); see also Williams-Yulee v. Florida Bar, 575 U.S. 433,
445 (2015) (explaining that the United States Supreme Court has
"recognized the vital state interest in safeguarding public
confidence in the fairness and integrity of the nation's elected
judges") (internal quotations omitted).
6
63
In sum, I write separately to call attention to the
critical role the appearance of bias can play in the due process
analysis. I further write to address the impact of the present
case on recusal practice in this court and statewide.
6
See also Siefert v. Alexander, 608 F.3d 974, 985 (7th Cir.
2010) ("Due process requires both fairness and the appearance of
fairness in the tribunal."); Martin H. Redish & Lawrence C.
Marshall, Adjudicatory Independence and the Values of Procedural
Due Process, 95 Yale L.J. 455, 484 (1986) ("Indeed, if there
exists any reasonable doubt about the adjudicator's impartiality
at the outset of a case, provision of the most elaborate
procedural safeguards will not avail to create [the] appearance
of justice.").
No. 2017AP2132.awb
11
64
For the foregoing reasons, I respectfully concur.
No. 2017AP2132.akz
1
65
ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority because it does not adopt the standard suggested in
Justice Ann Walsh Bradley's concurrence. Rather, the majority
opinion is consistent with the language of the United States
Supreme Court in Caperton, my writing (joined by two other
justices) in Herrmann, and my writing in Allen. See Caperton v.
A.T. Massey Coal Co., 556 U.S. 868 (2009); State v. Herrmann,
2015 WI 84, ¶¶112-62, 364 Wis. 2d 336, 867 N.W.2d 772 (Ziegler,
J., concurring); and State v. Allen, 2010 WI 10, ¶¶259-72, 322
Wis. 2d 372, 778 N.W.2d 863 (Ziegler, J., concurring). Here,
"the extreme facts of this case rebut the presumption of
judicial impartiality and establish a due process violation."
Majority op., ¶36. I conclude, consistently with Caperton, that
there is a serious risk that Judge Bitney was actually biased,
in violation of the Due Process Clause.
1
66
I also agree with much of Justice Hagedorn's writing
(see dissent, ¶¶104-127) because recusal must not be used as a
strategic weapon to judge-shop. I write separately to again
1
In her concurrence, Justice Ann Walsh Bradley advocates
for a different standard from the one in the majority opinion; a
different standard from the one announced in Caperton v. A.T.
Massey Coal Co., 556 U.S. 868 (2009). She advocates for an
appearance of bias standard. To be clear, I join the majority
opinion only because it specifically disavows that standard and
adopts the precise standard set forth by the Supreme Court in
Caperton——a serious risk of actual bias. See majority op., 25
n.18.
Justice Ann Walsh Bradley also apparently invites future
litigants to challenge our decision in State v. Henley, 2011
WI 67, 338 Wis. 2d 610, 802 N.W.2d 175. The parties did not
brief or argue that Henley is inconsistent with Caperton. In
this case, that assertion comes from Justice Ann Walsh Bradley
alone.
No. 2017AP2132.akz
2
emphasize that Caperton due process violations are rare and
limited to the most extraordinary and extreme cases. But the
facts presented here are indeed extraordinary. To be clear, our
decision in this case is not an expansion of Caperton, but,
rather, a faithful application of it to the facts of this case——
which, in many ways, are even more extreme than those of
Caperton itself.
67
I also write separately, in light of this case, to
caution the Wisconsin bench about the hazards of electronic
social media, and Facebook in particular. I caution judges to
avoid using social media such as Facebook unless significant
safeguards are in place to avoid a situation like that present
here. If a judge chooses to participate in social media, then
additional——not fewer——precautions must be taken. An appearance
of impropriety is not itself sufficient to constitute a due
process violation. But more is present here. As a result, I
respectfully concur.
I. ANALYSIS
A. Due Process And Caperton
68
Whether due process requires a judge's recusal is a
question of law this court reviews de novo. State v. Pinno,
2014 WI 74, ¶39, 356 Wis. 2d 106, 850 N.W.2d 207. "A fair trial
in a fair tribunal is a basic requirement of due process." In
re Murchison, 349 U.S. 133, 136 (1955). An impartial judge is
crucial to a fair trial and, therefore, "'[d]ue process requires
a neutral and detached judge.'" State v. Rochelt, 165
Wis. 2d 373, 378, 477 N.W.2d 659 (Ct. App. 1991) (quoting State
No. 2017AP2132.akz
3
v. Washington, 83 Wis. 2d 808, 833, 266 N.W.2d 597 (1978)). "We
presume that judges are impartial," neutral, and detached, and
the burden is on the party challenging that presumption to rebut
it. Pinno, 356 Wis. 2d 106, ¶103.
69
In Caperton, the Supreme Court concluded that a
judge's failure to recuse violates due process if there is
"objective proof of actual bias" or "a serious risk of actual
bias." Herrmann, 364 Wis. 2d 336, ¶158 (Ziegler, J.,
concurring) (citing Caperton, 556 U.S. at 883-84). A mere
appearance or allegation of bias alone will not rebut the
presumption that a judge is impartial and will not constitute a
due process violation.
2
Id., ¶160. Rather, under Caperton, the
standard is whether
a reasonable, well-informed person, knowledgeable
about judicial ethical standards and the justice
system and aware of the facts and circumstances the
judge knows or reasonably should know, would
reasonably question the judge's ability to be
impartial because of actual bias or the probability of
a serious risk of actual bias. Such circumstances are
exceedingly rare.
Id. The Supreme Court addressed one such rare and extraordinary
set of circumstances in Caperton, 556 U.S. 868.
70
I have previously summarized the facts of that case:
The "extreme facts" that amounted to a due
process violation in Caperton began with a $50 million
jury verdict that was entered in favor of Caperton and
against A.T. Massey. Caperton, 556 U.S. at 872.
2
An appearance of impropriety, while perhaps disqualifying
by rule (as I discuss below), is not the standard we apply in a
due process analysis under Caperton, 556 U.S. 868. It is rare
indeed that we would determine that a judge who has determined
they can sit on a case, should not have.
No. 2017AP2132.akz
4
"After the verdict but before the appeal, West
Virginia held its 2004 judicial elections." Id. at
873. Five justices sit on the West Virginia Supreme
Court of Appeals. Id. at 874–75. Whoever won the
West Virginia Supreme Court of Appeals' 2004 election
would most certainly be on the court when it decided
whether to sustain or overturn this $50 million
verdict against A.T. Massey. Id. at 873.
Donald Blankenship, who was A.T. Massey's
chairman, chief executive officer, and president,
"[knew] that the Supreme Court of Appeals of West
Virginia would consider the appeal in the case." Id.
Blankenship spent $3 million to support the election
of Brent Benjamin, an attorney who was running against
Justice Warren McGraw for a seat on the West Virginia
Supreme Court of Appeals. Id. . . .
Blankenship's $3 million of expenditures
supporting the election of Benjamin, who if elected
would be on the West Virginia Supreme Court of Appeals
when it decided the pending case involving
Blankenship's company, dwarfed all other spending in
the election. . . . Id. . . .
In addition, the United States Supreme Court
noted that the election results were not a landslide
victory. Id. A total of 716,337 people voted in the
West Virginia Supreme Court of Appeals race. See id.
Benjamin was elected with a narrow margin of 53.3% of
the votes. Id. Benjamin defeated his opponent by
fewer than 50,000 votes (Benjamin received 382,036
votes and Justice McGraw received 334,301). Id.
Approximately 11 months after Justice Benjamin
won the election, and shortly before A.T. Massey filed
its petition for appeal, Caperton moved to disqualify
Justice Benjamin in the particular case that was
pending the entire election between A.T. Massey and
Caperton. Id. at 873–74. Caperton argued that the
due process clause required Justice Benjamin's recusal
"based on the conflict caused by Blankenship's
campaign involvement." Id. at 874. Justice Benjamin
denied the recusal motion. Id. The West Virginia
Supreme Court of Appeals, by a 3–to–2 vote, reversed
the $50 million verdict against A.T. Massey. Id.
Justice Benjamin joined the majority opinion. Id.
No. 2017AP2132.akz
5
"Caperton sought rehearing, and the parties moved
for disqualification of three of the five justices who
decided the appeal." Id. In particular, Caperton
again moved to disqualify Justice Benjamin. Id. at
875. Justice Benjamin denied the motion. Id.
Justice Elliot Maynard, who joined the three-justice
majority opinion, granted Caperton's recusal motion
because "[p]hotos had surfaced of Justice Maynard
vacationing with Blankenship in the French Riviera
while the case was pending." Id. at 874. Justice
Larry Starcher, one of the two dissenting justices,
"granted [A.T.] Massey's recusal motion, apparently
based on his public criticism of Blankenship's role in
the 2004 elections." Id. at 874–75. The West
Virginia Supreme Court of Appeals subsequently granted
rehearing. Id. at 875. Justice Benjamin, then
serving as acting chief justice, selected two West
Virginia circuit judges to replace the two recused
justices on the case between Caperton and A.T. Massey.
Id. . . . The West Virginia Supreme Court of Appeals
again voted 3–to–2 to reverse the $50 million verdict
against A.T. Massey. Id. at 875. Justice Benjamin
again joined the majority. Id. Caperton petitioned
the United States Supreme Court to review Justice
Benjamin's denial of its recusal motions.
The United States Supreme Court granted
certiorari to determine "whether the Due Process
Clause of the Fourteenth Amendment was violated when
[Justice Benjamin] denied a recusal motion." Id. at
872. The Supreme Court determined "that, in all the
circumstances of [that] case, due process require[d]
recusal." Id.
The United States Supreme Court concluded that
there was a serious risk of Justice Benjamin's actual
bias in sitting on Caperton because: (1) the case had
been pending since before Justice Benjamin was
elected; (2) the jury verdict in that case was $50
million; (3) if elected, Justice Benjamin would be
sitting on the court that would review this $50
million verdict; (4) Blankenship's extraordinary $3
million expenditures supporting Benjamin dwarfed the
amount spent by both campaign committees combined; (5)
Blankenship's $3 million expenditures exceeded the
expenditures of all other Benjamin supporters
combined; and (6) Blankenship's $3 million
expenditures had a "significant and disproportionate
influence" in helping Benjamin win a close election.
No. 2017AP2132.akz
6
See Caperton, 556 U.S. at 883–86. The Supreme Court
emphasized that "[t]he temporal relationship between
the campaign contributions, the justice's election,
and the pendency of the case [was] also critical."
Id. at 886.
Herrmann, 364 Wis. 2d 336, ¶¶129-36 (Ziegler, J., concurring);
see also Allen, 322 Wis. 2d 372, ¶¶263-69 (Ziegler, J.,
concurring). I note that the extreme facts of Caperton largely
centered around Blankenship's conduct as a party to the
litigation, not that of the judge.
71
"'[N]owhere in Caperton does the majority state that
anything less than this "perfect storm," created by those
extreme and extraordinary facts coupled with the timing of the
election and the parties' pending case, would be sufficient to
constitute a due process violation.'" Herrmann, 364
Wis. 2d 336, ¶138 (Ziegler, J., concurring) (quoting Allen, 322
Wis. 2d 372, ¶269 (Ziegler, J., concurring)).
72
Here, this case has nothing to do with campaign
spending or a requested recusal based upon a financial interest
in any respect. Rather, this case involves a judge's choice to
create a Facebook account and to personally and affirmatively
accept and maintain a Facebook friendship with a litigant,
during a pending proceeding, giving that litigant the
opportunity to communicate with the judge, and without any
safeguards to ensure the integrity of the pending proceeding.
In this case, the judge made the Facebook account——the judge
chose to allow that exposure. The judge personally managed the
account and failed to protect against litigants influencing the
judge through communications on Facebook. Unsurprisingly, the
No. 2017AP2132.akz
7
litigant seized upon that opportunity by trying to correspond
with and influence the judge through the unprotected Facebook
account created, maintained, and monitored by the judge.
3
Here,
it is this objectively demonstrated attempt by a litigant to
influence a judge through that judge's Facebook account during a
pending proceeding that is at issue. Furthermore, while not
required here, the judge decided to hold a hearing on the motion
for recusal and render a decision on the record. The record
supporting the motion is ample, but the decision denying the
motion for recusal is exceedingly lean. See infra, ¶¶15-17.
73
As I explain below, we have nothing less than a
"perfect storm" of "extreme and extraordinary facts" here.
Herrmann, 364 Wis. 2d 336, ¶138 (Ziegler, J., concurring)
(quoting Allen, 322 Wis. 2d 372, ¶269 (Ziegler, J.,
concurring)). The majority opinion aptly summarizes those
facts, and I will assume the reader's familiarity with them.
See majority op., ¶¶6-12. But I will describe some of the facts
of this case separately to demonstrate that they are not only
analogous to those in Caperton, but, in some aspects, even more
extreme and extraordinary.
B. Caperton And This Case
74
Here, a judge affirmatively created a Facebook
account; instead of making it private, he made it available to
the public; he accepted a party as a "friend" during pending
litigation in which the judge was the sole decision-maker and
3
Judges may of course wish to have a social media account
for campaign purposes, but those are often monitored by a
campaign and need not necessarily exist beyond the campaign.
No. 2017AP2132.akz
8
fact-finder; and, he had no safeguards in place to avoid
inappropriate communication with the party. While Judge Bitney
could have done any number of things differently, he set himself
up for a Caperton violation by allowing Carroll to engage in
activity that indeed met the Caperton standard. Unbeknownst to
the other litigant (Miller), Carroll was objectively attempting
to influence Judge Bitney during pending litigation. Carroll
had this opportunity because of Judge Bitney's creation of,
personal management of, and activity in his Facebook account,
which lacked safeguards to protect against a party's influence
during pending litigation. It is the convergence of the judge's
unprotected Facebook account, to which he gave asymmetric access
to one party, unbeknownst to the other, to communicate with the
judge on relevant issues, during pending and highly contested
litigation, in which the judge was the sole decision-maker, that
causes the violation in this case. The facts of this case are
in many ways even more connected, direct, extreme, and
extraordinary than those in Caperton, where a third party
monetarily and openly supported a judge in an election believing
that the judge would eventually, if elected, rule on that
party's case that was proceeding through the appellate process.
75
In 2009, in Caperton, the Supreme Court took special
note of the timing of the election and Blankenship's support of
Justice Benjamin, knowing that, if he won the election, he would
be a judge on A.T. Massey's case on appeal. See Caperton, 556
U.S. at 873 (noting, "[a]fter the verdict but before the appeal,
West Virginia held its 2004 judicial elections. Knowing the
No. 2017AP2132.akz
9
Supreme Court of Appeals of West Virginia would consider the
appeal in the case, Blankenship decided to support an attorney
who sought to replace Justice McGraw") (emphasis added). The
Supreme Court stated, "The temporal relationship between the
campaign contributions, the justice's election, and the pendency
of the case is . . . critical. It was reasonably foreseeable,
when the campaign contributions were made, that the pending case
would be before the newly elected justice." Id. at 886. Hence,
the fact that there was a pending case that would be before the
judge was of great significance.
76
In this case, Carroll's friendship request, Judge
Bitney's personal and affirmative acceptance of it, and the many
Facebook activities thereafter occurred during the pendency of
this litigation before Judge Bitney. In the 25 days between
Judge Bitney's acceptance of Carroll's Facebook friendship and
his final decision, Carroll reacted to or commented on Judge
Bitney's Facebook posts at least 20 times. Those interactions
included information relevant to the issues to be decided——
Carroll's credibility, character, and parental fitness. In that
same 25-day period, Carroll also posted on her Facebook account
about domestic violence, showed that she was "interested in"
attending a domestic violence-related event, and reacted to or
shared other third-party content related to domestic violence,
an issue which was highly relevant to the custody dispute. Even
worse, all this occurred after a highly contested hearing, but
before Judge Bitney issued his final decision. Carroll
requested, and Judge Bitney personally and affirmatively
No. 2017AP2132.akz
10
accepted, ex parte access to him during the drafting of his
decision. Carroll offered, and Judge Bitney personally and
affirmatively accepted, access to off-record facts relevant to
the litigation during the time when he was deciding whether she
was the more fit parent.
77
Here, the timing of the conduct is even more direct
than in Caperton. In Caperton, there was a "temporal
relationship" between the court's decision and the campaign
support because Blankenship's campaign support occurred before
the case came to the West Virginia Supreme Court of Appeals.
556 U.S. at 886. Here, unlike Caperton, the Facebook friendship
and the judge's decision were not just temporally related. They
occurred at the same time. The commencement of the friendship
and the many Facebook communications occurred during the
decision-making phase of the proceedings where the judge, not a
jury, was the sole decision-maker. In Caperton, the Supreme
Court concluded that at the time of Blankenship's campaign
support, it was "reasonably foreseeable" that Justice Benjamin
would hear the case if he won the election. Id. Here, Judge
Bitney was currently presiding over the case; he had yet to
render his decision in a pending, highly contested case. The
Facebook communications were directly related to Carroll's
credibility as a witness and fitness as a parent. Moreover, the
content of the Facebook communications was objectively poised to
evidence to the judge that one party, Carroll, had the same
values and beliefs as the judge and was, therefore, the better
parent. Thus, the timing of the conduct in this case is even
No. 2017AP2132.akz
11
more extraordinary than in Caperton, as it was not just a
probability, but a certainty, that Judge Bitney would hear
Carroll's case; indeed, he was currently presiding over and
deciding it. Carroll and Judge Bitney became Facebook friends
and Carroll communicated with Judge Bitney on Facebook during
the exact same time period when he was deciding her highly
contested child custody case.
78
In Caperton, the parties and the public at large were
all well aware of Blankenship's attempt to influence the
election. Unlike here, where Miller knew nothing of Carroll's
actions, Caperton knew all along that A.T. Massey and
Blankenship were attempting to influence the outcome of the
appeal by supporting Justice Benjamin's candidacy. See
Caperton, 556 U.S. at 873-74 (stating, "[B]efore [A.T.] Massey
filed its petition for appeal in West Virginia's highest court,
Caperton moved to disqualify now-Justice Benjamin . . . based on
the conflict caused by Blankenship's campaign involvement").
Blankenship's campaign support was public knowledge. But in
this case, Judge Bitney gave Carroll an opportunity to
communicate with him and try to influence him through their
Facebook friendship while the other party, Miller, had no
knowledge at all. The fact that Judge Bitney allowed Carroll to
be in a position to objectively influence him, and she seized
that opportunity, unbeknownst to Miller until after Judge Bitney
issued his decision, is a fact even more extraordinary than
Caperton.
No. 2017AP2132.akz
12
79
Furthermore, in Caperton, there was a full record of
the controversy and Justice Benjamin thoroughly considered and
analyzed his ability to remain impartial. The Supreme Court
noted, "Justice Benjamin was careful to address the recusal
motions and explain his reasons why, on his view of the
controlling standard, disqualification was not in order. In
four separate opinions issued during the course of the appeal,
he explained why no actual bias had been established."
Caperton, 556 U.S. at 882. "In other words, based on the facts
presented by Caperton, Justice Benjamin conducted a probing
search into his actual motives and inclinations" and made a
thorough record. Id. In this case, the same cannot be said of
Judge Bitney. Here, the record is lean at best. While there is
objective evidence of communication from one party to the judge
over and over at the same time the judge was deciding the case,
there is hardly anything in the record to refute it or
demonstrate that the contact was of no moment.
80
Judge Bitney did rule on Miller's motion for recusal,
but the ruling is exceedingly lean in light of what appears to
be ex parte communication. Judge Bitney could have denied
seeing Carroll's various reactions to and comments on his
Facebook posts. But he did not. Nor did he deny seeing
Carroll's Facebook posts relating to domestic violence. Nor did
he deny viewing her Facebook profile. He could have explained
the safeguards he has in place. He could have explained how he
manages his Facebook account. But he did not. Rather, Judge
Bitney admitted that the parties "presented accurately the
No. 2017AP2132.akz
13
substance of the interaction between Miss Carroll and the Court
on Facebook" and that, on the day he and Carroll became Facebook
friends, his decision had not yet been "reduced to writing."
Judge Bitney's statement that the evidence presented in the
motion was an accurate reflection of his "interaction" with
Carroll is consistent with the remainder of the record, which is
void of any denial that he saw Carroll's comments, posts, or
reactions on Facebook.
4
This record is far from adequate to
overcome the objective evidence that one party was communicating
with the judge on a Facebook account developed and maintained by
the judge during the pendency of a case where the judge, not a
jury, is the decision-maker.
81
It is worth noting that, in a case tried before a
jury, if the court had any question regarding improper
communication between a party and a member of the jury, we would
expect a full record to be made. While judges need not detail
all that goes into their decision-making as to whether to stay
on a case, when a challenge is made as was made here, it is
somewhat akin to that of a party or witness attempting to unduly
influence a juror in a pending case. Yet, even though this
judge chose to hold a hearing and render a decision on the
record, we are left with an ample record of evidence in support
4
An "interaction" is defined as a "mutual or reciprocal
action or influence"; it is inherently interpersonal.
"Interaction." Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/interaction. Accessed
4 Jun. 2020.
No. 2017AP2132.akz
14
of the motion for recusal and little else. This case is indeed
extraordinary.
82
In Caperton, the Supreme Court stated:
We conclude that there is a serious risk of actual
bias——based on objective and reasonable perceptions——
when a person with a personal stake in a particular
case had a significant and disproportionate influence
in placing the judge on the case by raising funds or
directing the judge's election campaign when the case
was pending or imminent.
Caperton, 556 U.S. at 884. In this case, Carroll was "a person
with a personal stake" in the proceedings. Id. Indeed, she had
the ultimate stake in the case as a mother seeking custody of
her child. Carroll also had the opportunity to "significant[ly]
and disproportionate[ly] influence" the case. Id. She had a
Facebook friendship with Judge Bitney in which she could
introduce off-record facts relevant to Judge Bitney's decision,
facts which Miller had no opportunity to rebut. And all this
occurred "when the case was pending" and Judge Bitney's decision
was "imminent." Id. In Caperton, it was not the judge's
actions, but the party's actions and their "significant and
disproportionate influence" on the case that caused the Caperton
violation. Id. Similarly, while Judge Bitney could have, and
should have, more prudently managed his Facebook account, it is
Carroll's conduct during the pendency of the litigation that is
of particular concern.
83
Finally, in Caperton, the extraordinary conduct was
attributed only to Blankenship; Blankenship paid the $3 million
in support of Justice Benjamin during his campaign. Justice
Benjamin concluded that no one could "point to any actual
No. 2017AP2132.akz
15
conduct or activity on [his] part which could be termed
'improper.'" Caperton, 556 U.S. at 882 (quoting Caperton v.
A.T. Massey Coal Co., 679 S.E.2d 223, 293 (W. Va. 2008)). The
Supreme Court agreed that Justice Benjamin's conduct was not
"improper." See id. ("We do not question [Justice Benjamin's]
subjective findings of impartiality and propriety."). Here, the
facts are different. It was the judge who established and
personally managed his Facebook account, allowed public access
(even personally accepting a friendship with a litigant in a
pending case wherein the judge was the sole decision-maker), and
had no protection in place against attempted influence.
84
I note that even those who would find no Caperton
violation in this case agree that Judge Bitney's management of
his Facebook account evidenced significant shortfalls with the
lack of protections afforded. See dissent, ¶124 ("Every member
of this court would agree that Judge Bitney should have been
more careful."). Indeed, we can easily "point to . . . actual
conduct or activity on [Judge Bitney's] part which could be
termed 'improper.'" Caperton, 556 U.S. at 882 (quoting
Caperton, 679 S.E.2d at 293). Put simply, Carroll would not
have had ex parte access to Judge Bitney if he had not given it
to her. Judge Bitney affirmatively chose to let Carroll, a
party to a highly contested child custody hearing over which he
presided, become his Facebook friend. Judge Bitney personally
and affirmatively accepted her friendship request. Even worse,
since Carroll's personal life, character, and parental fitness
were relevant to the custody dispute, Judge Bitney affirmatively
No. 2017AP2132.akz
16
accepted access to off-record and relevant facts about Carroll
when he accepted her friend request. Judge Bitney did not
disclose his Facebook friendship with Carroll. He did not
disclose any of their Facebook interactions. Judge Bitney's
conduct in allowing a party such access in this case was not
just improper. It was extraordinary.
85
There is a serious risk that Judge Bitney was actually
biased, in violation of the Due Process Clause. Here, as in
Caperton, the violation occurs in part because of the party's
actions, and in part because of the judge's actions. Certainly,
Judge Bitney set up Carroll's ex parte access by choosing to be
on social media and not having sufficient safeguards in place.
But Caperton and this case both flow from the party's actions
attempting to influence a judge or court during pending and
existing proceedings——here, while the highly contested case was
actually pending before Judge Bitney, the sole decision-maker.
86
The extreme facts of this case are as follows: (1)
Judge Bitney personally managed his Facebook account; (2) Judge
Bitney was the decision-maker and fact-finder in a pending
custody dispute; (3) the custody dispute was highly contested
and included the testimony of 15 witnesses; (4) the guardian ad
litem's recommendation was contrary to the judge's decision; (5)
Carroll requested a Facebook friendship with Judge Bitney
immediately after final briefs in the case were submitted; (6)
Judge Bitney personally and affirmatively accepted that
friendship request; (7) in the 25 days between accepting the
Facebook friendship and Judge Bitney's final decision, Carroll
No. 2017AP2132.akz
17
reacted to or commented on Judge Bitney's Facebook posts at
least 20 times; (8) those interactions included information
relevant to the issues to be decided——Carroll's character and
parental fitness; (9) in that same 25-day period, Carroll also
posted on her account about domestic violence, showed that she
was "interested in" attending a domestic violence-related event,
and reacted to or shared other third-party content related to
domestic violence, an issue which was highly relevant to the
custody dispute; (10) Judge Bitney did not unfriend Carroll,
disclose the Facebook friendship, or disclose the interactions;
(11) Judge Bitney did not deny seeing any of Carroll's Facebook
posts, comments, or reactions, or her profile page; and (12)
Judge Bitney's decision was grounded in a conclusion that Miller
had engaged in domestic violence against Carroll, was
overwhelmingly in favor of Carroll, and uprooted the pre-
existing physical placement of the child.
5
87
Under Caperton, this perfect storm of extreme and
extraordinary facts, viewed objectively, undoubtedly
demonstrates a serious risk of actual bias.
C. Judges And Facebook
88
The Preamble to the Wisconsin Supreme Court Rules
setting forth the Code of Judicial Conduct ("the Code") states:
Our legal system is based on the principle that
an independent, fair and competent judiciary will
5
In his dissent, Justice Hagedorn describes the facts of
this case as "ordinary." See dissent, ¶¶104, 106, 114, 117,
125, 126. I most certainly hope they are not. Indeed, this
concurrence demonstrates why the facts of this case are not (and
should not be) ordinary.
No. 2017AP2132.akz
18
interpret and apply the laws that govern us. The role
of the judiciary is central to American concepts of
justice and the rule of law. Intrinsic to all
provisions of this Code are the precepts that judges,
individually and collectively, must respect and honor
the judicial office as a public trust and strive to
enhance and maintain confidence in our legal system.
The judge is an arbiter of facts and law for the
resolution of disputes and a highly visible symbol of
government under rule of law.
SCR ch. 60 Preamble. The Code then sets forth a series of
ethical rules that judges must follow. A judgeship carries with
it profound responsibilities to the people, the bench, the bar,
and to justice.
89
First, let me make clear that a violation of the Code
does not automatically constitute a violation of due process.
Whereas due process violations address serious risks of actual
bias, the Code addresses the appearance of bias even if there is
no actual bias. See Herrmann, 364 Wis. 2d 366, ¶151 (Ziegler,
J., concurring) ("'Where only the appearance of bias is at
issue, a litigant's recourse is to seek disqualification under
state disqualification statutes[.]") (quoting People v. Freeman,
222 P.3d 177, 178 (Cal. 2010); see id. ("'Less extreme cases——
including those that involve the mere appearance, but not the
probability, of bias——should be resolved under more expansive
disqualification statutes and codes of judicial conduct.'")
(quoting Freeman, 222 P.3d at 185 (citing Caperton, 556 U.S. at
889-90)). In this case, Miller brought a claim grounded in the
Due Process Clause, not the Code. Accordingly, we do not
analyze whether Judge Bitney's conduct constituted a violation
of the Code. However, social media, while something judges are
permitted to use as citizens and community members, should be
No. 2017AP2132.akz
19
used with caution. Indeed, judges must always be mindful of how
their actions as private citizens can impact their ability to
preside over certain cases.
90
By way of example, under SCR 60.05(3)(c)2.d., a judge
may not ask lawyers or those likely to appear before the judge
to buy tickets to a pancake breakfast for a local neighborhood
center. Comment, SCR 60.05(3)(c)2.d. "[A] judge may pass the
collection basket during services at church, may ask friends and
neighbors to buy tickets to a pancake breakfast for a local
neighborhood center and may cook the pancakes at the event but
may not personally ask attorneys and others who are likely to
appear before the judge to buy tickets to it." Id. A judge is
supposed to take precautions with in-person interactions with
those who appear in front of the judge. Should that not be
equally applicable for judges on social media?
91
Judicial use of Facebook has spawned vigorous debate
regarding whether and to what extent judges ought to use
Facebook, and the ethical issues Facebook poses for judges.
See, e.g., Hon. Richard L. Gabriel & Nina Varsava, Friending,
Following, and Liking Social Media and the Courts, Colo. Law.,
July 2019, at 9; Hon. M. Sue Kurita, Electronic Social Media:
Friend or Foe for Judges, 7 St. Mary's J. Legal Malpractice &
Ethics 184 (2017); Shaziah Singh, Friend Request Denied:
Judicial Ethics & Social Media, 7 Case W. Reserve J.L. Tech. &
Internet 153 (2016); John G. Browning, Why Can't We Be Friends?
Judges' Use of Social Media, 68 U. Miami L. Rev. 487 (2014);
Hon. Craig Estlinbaum, Social Networking & Judicial Ethics, 2
No. 2017AP2132.akz
20
St. Mary's J. Legal Malpractice & Ethics 2 (2012); Samuel
Vincent Jones, Judges, Friends, and Facebook: The Ethics of
Prohibition, 24 Geo. J. Legal Ethics 281 (2011).
92
This debate continues, and various jurisdictions have
taken different approaches to the intersection between judicial
use of social media and ethical rules. Singh, supra ¶91, at
158-71 (summarizing approaches and stating that: Florida,
Oklahoma, and Massachusetts take a "strict approach";
California, Arizona, Utah, Texas, North Carolina, and Florida
take a "moderate approach"; and Maryland, New York, Kentucky,
Ohio, South Carolina, Georgia, Tennessee, and the American Bar
Association take a "liberal approach").
93
Judge Bitney was not the first judge to have chosen to
use electronic social media. Indeed, there have been many
troubling cases involving judicial use of electronic social
media in recent years. See Browning, supra ¶91, at 497-502
(collecting cases), describing, for example:
In re Dempsey, 29 So. 3d 1030 (Fla. 2010), in which a
judge's conduct violated a canon of judicial conduct
when her campaign video on YouTube misrepresented her
qualifications; and
Doe v. Sex Offender Registry Bd., 959 N.E.2d 990
(Mass. App. Ct. 2012), in which a hearing officer
posted "inappropriate" comments on Facebook relating
to Doe's appeal of his classification as a sex
offender.
No. 2017AP2132.akz
21
See also Kurita, supra ¶91, at 211-33 (collecting cases),
describing, for example:
Kiniti-Wairimu v. Holder, 312 F. App'x 907 (9th Cir.
2009), in which an immigration judge independently
researched a Kenyan citizen's family online when his
application for withholding of removal and protection
under the Convention Against Torture was pending,
violating due process; and
State v. Thomas, 376 P.3d 184 (N.M. 2016), in which a
judge posted twice on his campaign Facebook account
regarding a trial in his courtroom, including a post
saying, "In the trial I presided over, the jury
returned guilty verdicts for first-degree murder and
kidnapping just after lunch. Justice was served.
Thank you for your prayers." Id. at 189.
94
I note that this case, and many others, involve use of
electronic social media by a third party, not just the judge. A
judge who uses electronic social media subjects himself or
herself to the risk of misuse of a social media relationship by
a third party. I am concerned that no matter how cautious and
attentive the judge may be, a judge who uses electronic social
media may expose both the judge and the judiciary as a whole to
an appearance of bias or impropriety.
95
Accordingly, I strongly urge my colleagues on the
bench to weigh the advantages and disadvantages of using
electronic social media like Facebook. See Jones, supra ¶91, at
302 (concluding that, "[t]o avoid the perils that emanate from
No. 2017AP2132.akz
22
current and future [electronic social networking] capacities——
including, but not limited to, 'friending'——the Judicial Code
should be viewed as a restrictive juridical construct"). And if
a judge chooses to use a social media platform like Facebook,
then that judge must proceed with the utmost diligence and
caution. See Gabriel & Varsava, supra ¶91, at 12 (concluding
that "judges who wish to participate in social media should
proceed with caution, asking themselves before acting whether
their social media activities could be deemed by a reasonable
person to undermine the judges' independence, integrity, or
impartiality; place the judiciary in disrepute; or interfere
with their ability to carry out the substantial duties that have
been entrusted to them").
II. CONCLUSION
96
I join the majority because it does not adopt the
standard suggested in Justice Ann Walsh Bradley's concurrence.
Rather, the majority opinion is consistent with the language of
the United States Supreme Court in Caperton, my writing (joined
by two other justices) in Herrmann, and my writing in Allen.
See Caperton, 556 U.S. 868; Herrmann, 364 Wis. 2d 336, ¶¶112-62
(Ziegler, J., concurring); and Allen, 322 Wis. 2d 372, ¶¶259-72
(Ziegler, J., concurring). Here, "the extreme facts of this
case rebut the presumption of judicial impartiality and
establish a due process violation." Majority op., ¶36. I
conclude, consistently with Caperton, that there is a serious
risk that Judge Bitney was actually biased, in violation of the
Due Process Clause.
No. 2017AP2132.akz
23
97
I also agree with much of Justice Hagedorn's writing
(see dissent, ¶¶104-127) because recusal must not be used as a
strategic weapon to judge-shop. I write separately to again
emphasize that Caperton due process violations are rare and
limited to the most extraordinary and extreme cases. But the
facts presented here are indeed extraordinary. To be clear, our
decision in this case is not an expansion of Caperton, but,
rather, a faithful application of it to the facts of this case——
which, in many ways, are even more extreme than those of
Caperton itself.
98
I also write separately, in light of this case, to
caution the Wisconsin bench about the hazards of electronic
social media, and Facebook in particular. I caution judges to
avoid using social media such as Facebook unless significant
safeguards are in place to avoid a situation like that present
here. If a judge chooses to participate in social media, then
additional——not fewer——precautions must be taken. An appearance
of impropriety is not itself sufficient to constitute a due
process violation. But more is present here.
99
For the foregoing reasons, I respectfully concur.
No. 2017AP2132.rfd
1
100
REBECCA FRANK DALLET, J. (concurring). I write
separately to provide additional guidance and clarification for
the bench and bar. There is nothing inherently inappropriate
about a judge's use of social media platforms like Facebook.
There is no rule or judicial ethics opinion in Wisconsin
prohibiting or limiting a judge's use of social media. In fact,
the use of social media platforms "can benefit judges in both
their personal and professional lives." ABA Comm'n on Ethics &
Prof'l Responsibility, Formal Op. 13-462 at 4 (2013).
Participation in social media is one way for judges to remain
active in the community and "can prevent [judges] from being
thought of as isolated or out of touch." Id. at 1.
Additionally, Facebook and other social media platforms have
become important campaign tools for judges to deliver campaign
messages to the voters in Wisconsin. See Susan Criss, Use of
Social Media by Judges, The, 60 Advocate (Texas) 18 ("Few
judicial campaigns can realistically afford to refrain from
using social media to deliver their message to the voting
public.").
101
A judge's Facebook connection to a party or an
attorney, without more, does not rebut the presumption of
impartiality. Requiring automatic disqualification in every
case involving a Facebook acquaintance would not reflect the
true nature of a Facebook friendship and "casts a large net in
an effort to catch a minnow." Chace v. Loisel, 170 So. 3d 802,
804 (Fla. Dist. Ct. App. 2014); see also Law Offices of Herssein
& Herssein, P.A. v. United Servs. Auto Ass'n, 271 So. 3d 889,
No. 2017AP2132.rfd
2
897 (Fla. 2018)) ("No reasonably prudent person would fear that
she could not receive a fair and impartial trial based solely on
the fact that a judge and an attorney appearing before the judge
are Facebook 'friends' with a relationship of an indeterminate
nature."); ABA Formal Op. 13-462 at 2-3 ("Simple designation as
an [electronic social media] connection does not, in and of
itself, indicate the degree or intensity of a judge's
relationship with a person."). If a mere acquaintance on
Facebook required judicial recusal, it would promote
gamesmanship among parties and weaponize social media.
102
However, judges must be cautious in their use of
social media. As the American Bar Association (ABA) has
reasoned, "[a] judge may participate in electronic social
networking, but as with all social relationships and contacts, a
judge must . . . avoid any conduct that would undermine the
judge's independence, integrity, or impartiality . . . ." ABA
Formal Op. 13-462 at 1. Public confidence in the administration
of justice demands that members of the judiciary perform their
duties impartially and free from any sort of bias. See ABA
Comm'n on Ethics & Prof'l Responsibility, Formal Op. 19-488 at 2
(2019); see also Williams-Yulee v. Florida Bar, 575 U.S. 433,
445 (2015)(reaffirming the "'vital state interest' in
safeguarding 'public confidence in the fairness and integrity in
the nation's elected judges'" (quoted source omitted)). A
judge's online "friendships," just like a judge's real life
friendships, must be approached with care and caution.
No. 2017AP2132.rfd
3
103
I am authorized to state that Justice BRIAN HAGEDORN
joins this concurrence.
No. 2017AP2132.bh
1
104
BRIAN HAGEDORN, J. (dissenting). For most of
American history, the United States Constitution was understood
to say close to nothing about judicial recusal. This area of
law, with a few extremely narrow exceptions, was left to state
regulation and oversight. But as it has in many areas, the
judiciary began to expand the constitutional footprint, inch by
inch, and lately, step by step. Today's decision continues the
march away from the original public meaning of our Constitution,
and greatly risks merging ordinary judicial recusal questions
with the narrow proscriptions of the Due Process Clause.
105
The question in this case is not whether, under an
objective standard, Judge Bitney would be able to hold the
balance nice, clear, and true in light of the circumstances.
The question is likewise not whether Judge Bitney may have
transgressed the recusal standards in the Wisconsin Statutes or
Code of Judicial Conduct. Rather, the question presented is
whether the record in this case demonstrates that the Fourteenth
Amendment's Due Process Clause required Judge Bitney's recusal,
and therefore whether Miller's due process right to an impartial
tribunal was violated. Under the governing United States
Supreme Court precedent, recusal is constitutionally required
only when actual bias is present or when the facts of a case are
so extreme as to constitute a serious risk of actual bias.
106
Miller claims this constitutes one of the rare cases
where the risk of actual bias is constitutionally intolerable.
I disagree. This is a relatively normal appearance of bias
case. Granted, given its intersection with modern social media,
No. 2017AP2132.bh
2
an area comparatively unexplored in judicial ethics circles,
this fact pattern carries with it a sense of novelty. But
outside of its medium, the facts before us are rather ordinary
in the types of risks and potential conflicts at issue. I
conclude the circumstances here are not so extreme as to violate
Miller's due process right to an impartial tribunal. I
respectfully dissent.
1
I. THE CONSTITUTION AND RECUSAL
107
The Due Process Clause of the Fourteenth Amendment
prohibits states from depriving "any person of life, liberty, or
property, without due process of law." U.S. Const. amend. XIV,
§ 1. The touchstone for a claim based on this constitutional
protection is the "settled usages and modes of proceeding
existing in the common and statute law of England." Tumey v.
Ohio, 273 U.S. 510, 523 (1927); see also Murray's Lessee v.
Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 277
(1856); Honda Motor Co. v. Oberg, 512 U.S. 415, 430 (1994).
108
Under the common law, the grounds for judicial
disqualification were simple and narrow: a man could not act as
the judge in his own case. See generally Williams v.
1
I also join Justice Dallet's concurrence regarding
judicial use of social media. Judges must be careful, but we
are elected officials and members of civil society. Social
media can be an important platform to inform citizens of who
judges are as people, to educate the citizenry regarding the
judicial role, and to promote candidacy for public office. The
dangers are not significantly greater than those attendant to
judicial involvement in non-profit work, participation in
community-wide justice initiatives, and shaking hands at the
town Fourth of July parade.
No. 2017AP2132.bh
3
Pennsylvania, 136 S. Ct. 1899, 1917 (2016) (Thomas, J.,
dissenting). In practice, this prohibition was limited to cases
where the judge had a direct and personal financial stake in the
outcome, or where the judge was a party in the action. Id.
Neither personal bias nor an appearance of bias was enough.
Personal interest, not potential bias, was the only concern
sufficient to trigger judicial disqualification. Id. One
scholar summarized it this way: "English common law practice at
the time of the establishment of the American court system was
simple in the extreme. Judges disqualified for financial
interest. No other disqualifications were permitted, and bias,
today the most controversial ground for disqualification, was
rejected entirely." John P. Frank, Disqualification of Judges,
56 Yale L.J. 605, 611–12 (1947).
109
Early American federal and state laws expanded the
narrow common law rule in limited ways, notably to instances
where the judge previously served as an attorney in the same
case. Williams, 136 S. Ct. at 1918-19 (Thomas, J., dissenting).
But the narrowness of this limitation cannot be overstated. By
way of illustration, one of the most famous cases in American
legal history, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),
was presided over by Chief Justice John Marshall. But it was
then-Secretary of State John Marshall who failed to deliver the
commissions that led to the mandamus action before the high
No. 2017AP2132.bh
4
court in the first place.
2
See Williams, 136 S. Ct. at 1919
(Thomas, J., dissenting). None of that violated the common law
or constitutional rules for judicial disqualification as
understood at the time.
110
The United States Supreme Court has recognized a
constitutionally protected due process right to an impartial
tribunal. See In re Murchison, 349 U.S. 133, 136 (1955) ("A
fair trial in a fair tribunal is a basic requirement of due
process."). But it has also been crystal clear that the "Due
Process Clause demarks only the outer boundaries of judicial
disqualifications." Aetna Life Ins. Co. v. Lavoie, 475
U.S. 813, 828 (1986). The vast majority of judicial
disqualification issues are matters for state law and policy,
not the Constitution. Tumey, 273 U.S. at 523.
111
Until recently, the Supreme Court's due process
precedent was consonant with the narrow common law rule. Cases
in the 20th century made clear that due process disqualified
judges when they had "a direct, personal, substantial pecuniary
interest" in the outcome of a case. See id. (explaining recusal
required of a judge who would profit from a case only upon a
conviction of the defendant); see also Aetna Life Ins., 475
U.S. at 823-24 (explaining recusal required of a judge whose
2
In fact, Secretary Marshall tasked his younger brother,
James Markham Marshall, to deliver the commissions——including
the commission intended for Marbury. See Marbury v. Madison, 5
U.S. (1 Cranch) 137, 146 (1803) (referring to James Marshall's
affidavit); see also Michael W. McConnell, The Story of Marbury
v. Madison: Making Defeat Look Like Victory, in Constitutional
Law Stories 17-18 (Michael C. Dorf ed., 2d ed. 2009) (discussing
the circumstances that gave rise to Marbury).
No. 2017AP2132.bh
5
decision in a case would have a "clear and immediate effect of
enhancing both the legal status and the settlement value of" the
judge's own cases against the same defendant). Around the
middle of the 20th century, the Supreme Court also found that
due process is violated by a "judge who was at the same time the
complainant, indicter and prosecutor." Murchison, 349 U.S. at
135. Thus, for most of its history, the Supreme Court applied
due process only to variants of the common law rules——where a
judge had a direct, personal, substantial pecuniary interest,
and where a judge served as counsel in the case below. These
standards were based on the notion of a direct conflict and
personal interest, what might be labeled actual bias. Moreover,
because the constitutional proscriptions remained narrow, states
had considerable room to enact stricter recusal rules based on
policy and prudence, not constitutional command.
112
In 2009, the Supreme Court entertained a case with
extreme facts, and responded with a limited expansion of the
protections afforded by the Constitution. Caperton v. A.T.
Massey Coal Co., 556 U.S. 868 (2009). In Caperton, West
Virginia Supreme Court Justice Brent Benjamin declined to recuse
on a case reviewing a $50 million verdict. Id. at 873-74.
During the three years between entry of that verdict and the
appeal to Justice Benjamin's court, one of the parties in the
case spent $3 million to help elect Justice Benjamin to his
position. Id. at 872-73. Those expenditures, which were more
than all other supporters combined, had a "significant and
disproportionate influence" in helping elect Justice Benjamin in
No. 2017AP2132.bh
6
a close race. Id. at 873, 884. This was, as it were, a perfect
storm of facts——extraordinarily disproportionate campaign
contributions in a close election from a party in a pending
case.
113
Facing this, the Court indicated for the first time
that something less than actual bias may be of constitutional
import. But its application was limited to cases where, under
an objective inquiry, "a serious risk of actual bias" is
present. Id. at 884-86. "Serious risk" does not mean simply a
meaningful risk, but one far outside the norm, one right next to
the line of actual bias. The Court went out of its way to
stress this was no ordinary situation, stating for example:
"On these extreme facts the probability of actual
bias rises to an unconstitutional level."
"[T]his is an exceptional case."
"The facts now before us are extreme by any
measure. The parties point to no other instance
involving judicial campaign contributions that
presents a potential for bias comparable to the
circumstances in this case."
"Our decision today addresses an extraordinary
situation where the Constitution requires
recusal."
Id. at 884, 886-87. The unmistakable message was that
"[a]pplication of the constitutional standard implicated in this
case will thus be confined to rare instances." Id. at 890.
Under Caperton, appearance of bias is not enough to trigger a
constitutional problem. Rather, recusal is required under the
Constitution only in the extreme, exceptional, and extraordinary
case where the risk of actual bias is so unusually high that it
No. 2017AP2132.bh
7
cannot be tolerated. Id. at 877 (recusal required where "the
probability of actual bias on the part of the judge or
decisionmaker is too high to be constitutionally tolerable"
(quoted source omitted)).
II. APPLICATION
114
Two problems plague the majority's analysis. First,
most of the court's opinion reads like an ordinary discussion on
recusal, but Caperton limits application of the Due Process
Clause to extreme situations. Second, the majority functionally
finds facts by embracing every negative inference from a record
that is, at best, ambiguous.
115
When the Supreme Court decided Caperton, Chief Justice
Roberts warned in dissent that some might use this open door to
turn routine judicial recusal questions into due process claims.
Id. at 899-900 (Roberts, C.J., dissenting). The Chief Justice
stressed——with no disagreement from the majority——that recusal
is generally not an issue of constitutional concern. Id. at
892-93. The Supreme Court had previously said that "[m]atters
of kinship, personal bias, state policy, remoteness of interest,
would seem generally to be matters merely of legislative
discretion." Id. at 892 (quoting Tumey, 273 U.S. at 523). And
given this, the Chief Justice reasoned, so too are common
recusal issues like "friendship with a party or lawyer, prior
employment experience, membership in clubs or associations,
prior speeches and writings, religious affiliation, and
countless other considerations." Id. at 892.
No. 2017AP2132.bh
8
116
It is true that Caperton opened the door to
constitutional claims alleging something less than actual bias.
But the opening was more crevice than canyon. It is easy to
recite the standard that any constitutional claim based on a
serious risk of bias must be an "extreme case," but that cannot
operate as a license to neglect its import. That is what the
majority does here. It recites Caperton's repeated admonition
that only extreme cases implicate the Constitution. Yet, its
analysis would look almost no different if this were a case
based on the recusal standards in our statutes or judicial
ethics rules.
117
The record before us doesn't tell us much, but what it
does tell suggests this is not a needle-in-the-haystack judicial
recusal case; it is quite ordinary. The thrust of the recusal
argument rests on the fact that Judge Bitney accepted a Facebook
friend request from a party while a case was pending, and did
not disclose it. But that's rather sparse evidence from which
to conclude a certain ethics violation occurred, much less a due
process problem.
118
Broadly speaking, Facebook, like other social media,
can be something one interacts with much or little. Settings
may be adjusted so that one never sees notifications regarding
comments or likes on one's posts. A Facebook user can have
thousands of friends, but only follow the updates of a far
smaller circle. And though we do know Judge Bitney was an
active Facebook user, the record does not tell us anything about
his interactions with Carroll herself.
No. 2017AP2132.bh
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119
For instance, we do not know, and therefore cannot
conclude, whether Judge Bitney ever saw Carroll's domestic
violence-related posts. Thus, even if those could be seen as
"ex parte communications concerning a pending . . . proceeding,"
as the majority construes them, we have no factual findings from
which we could definitively say anything like that occurred.
SCR 60.04(g) (prohibiting most ex parte communications regarding
a pending matter). We also cannot say, for that matter, whether
Judge Bitney viewed any of Carroll's posts or Facebook activity
while the case was pending.
120
It is also difficult, without more facts, to know what
to read into Judge Bitney's decision to accept Carroll's
Facebook friend request. Judge Bitney undoubtedly has thousands
of parties before him each year. It could be he was not aware
her case was pending at the time he accepted the request. It
could be he routinely accepts all Facebook friend requests he
receives without paying much attention to who they are from.
While the record could support more problematic inferences, the
record as we have it supports more innocent ones as well.
121
Further, we do not know if Judge Bitney was even aware
that Carroll had liked his posts or whether he saw the two "get
well soon" comments she left on his posts. Again, many people
do not follow every comment or like on a Facebook post.
Moreover, there's nothing particularly sinister about a party
wishing a judge a speedy recovery from knee surgery. A similar
greeting from parties or counsel while passing in the halls of
the courthouse would raise no one's eyebrows. Nor would "Merry
No. 2017AP2132.bh
10
Christmas!" or "The pastor preached a wonderful sermon on
Sunday, didn't he?" These benign interactions are a routine
part of being a person in a finite community.
122
To that point, these kinds of interactions between a
judicial officer and members in the community are not that
unique. Suppose Carroll and Judge Bitney were already friends
on Facebook. Would liking Bible verses in his Facebook feed and
wishing him a speedy recovery from knee surgery be cause to
invoke the Due Process Clause? I think not. Suppose Carroll
came to a "Re-Elect Judge Bitney" rally during the last election
cycle and wrote a Facebook post supporting him. This would not
constitute constitutional grounds for recusal either. Nor would
a large campaign contribution trigger due process concerns apart
from the uniquely problematic confluence of events that Caperton
occasioned. 556 U.S. at 887 ("The parties point to no other
instance involving judicial campaign contributions that presents
a potential for bias comparable to the circumstances in this
case.").
123
It is important to remember that judges are not
isolated members of the community. They read the news. They
receive unsolicited and stray comments about cases or parties.
Judges may, particularly in smaller communities, know a party's
family history from another case, or have heard stories from
judicial colleagues about a party before them. Judges may go to
church with parties before them, volunteer with the local Rotary
chapter, or be former high school football teammates with a
party's father. Judges are people too. And it is precisely
No. 2017AP2132.bh
11
these sorts of ordinary, and generally unproblematic, life
interactions that undergird the strong presumption that judges
are impartial. The very concept of an impartial judiciary
depends upon the belief that judges can manage through their
biases, news feeds, political supporters, former co-workers, and
neighbors to render decisions without fear or favor to any
party.
124
Every member of this court would agree that Judge
Bitney should have been more careful. Knowingly or not,
accepting a Facebook friend request from a party while a case is
pending raises an appearance of bias that judges should strive
to avoid. But the claim here is that, far beyond an appearance
of bias, this miscue was extreme, exceptional, and
extraordinary, raising a serious risk of actual bias. Despite
the majority's confident assertions, this record tells us far
too little to conclude the Constitution is implicated. We as a
court must not deploy the Constitution as a means to right all
recusal wrongs.
3
See Caperton 556 U.S. at 903 (Scalia, J.,
3
The concurrence of Justice Ann Walsh Bradley tries to take
Caperton even further. She would seemingly transform many
appearance of bias questions into constitutional claims. And
separately, she also argues that Caperton is inconsistent with
our decision in State v. Henley, 2011 WI 67, 338 Wis. 2d 610,
802 N.W.2d 175 (per curiam), confirming this court's long-
standing rule leaving recusal decisions to the individual
justice. In particular, she argues that the recusal decisions
of justices must likewise be subject to the same objective due
process review——but by the other members of this court. Henley
is settled law, and there are good reasons to keep it that way.
No. 2017AP2132.bh
12
dissenting) ("Divinely inspired text may contain the answers to
all earthly questions, but the Due Process Clause most assuredly
does not. The Court today continues its quixotic quest to right
all wrongs and repair all imperfections through the
Constitution."). We should therefore default to the strong
presumption that Judge Bitney can withstand a hearty breeze——
even what could have been attempted influence in this case by
Carroll——and still not blow over.
125
Blurring this standard leads to the very dangers Chief
Justice Roberts cautioned against in his Caperton dissent. All
future litigants, he warned, "will assert that their case is
First, our recusal procedures come from good stock; they
follow the United States Supreme Court's model for courts of
last resort. See Henley, 338 Wis. 2d 610, ¶¶28-31 (noting the
United States Supreme Court's procedure, which this court has
followed for more than 150 years, was unchanged by Caperton).
Therefore, any problem that allegedly exists here is no more
acute than it is for the Supreme Court itself.
Second, the recusal decisions of individual justices on
this court are reviewable in the exact same way the recusal
decision here was——by a higher court. That is, litigants may
appeal the recusal decisions of members of this court to the
United States Supreme Court. That, of course, is exactly what
happened in Caperton. In short, there is nothing incongruous
about the existence of a due process claim and our rule allowing
justices to decide for themselves whether recusal is
appropriate.
The recusal wars that plagued this court for several years
have concluded; I bid them good riddance. Nothing since Henley,
which was decided after Caperton, demands another round of
squabbling over these issues. Justice Ann Walsh Bradley is
right about one thing——the integrity of our courts is at stake.
Encouraging litigants to use recusal as a weapon, turning
justices against one another, and casting more public doubt on
the integrity of our colleagues is the only thing that will come
from Justice Bradley's invitation. These zombies are best kept
entombed.
No. 2017AP2132.bh
13
really the most extreme thus far." Id. at 899 (Roberts, C.J.,
dissenting). And each new allegedly extreme case will entice
the judiciary "to correct the extreme case, rather than adhering
to the legal principle." Id. Sometimes, the Chief Justice
reminded us, the cure is worse than the disease. Id. at 902.
While trying to protect the integrity of the judiciary, the
invitation to dress ordinary judicial disqualification claims as
constitutional cases "will itself bring our judicial system into
undeserved disrepute, and diminish the confidence of the
American people in the fairness and integrity of their courts."
Id.
126
Although this court must follow Caperton, it has no
constitutional warrant to expand it. The more this court takes
ordinary recusal questions and turns them into constitutional
questions, the more we will see these claims. And the more we
see these claims, the more recusal will become a litigation
weapon (after all, a due process violation is structural error).
And the more recusal becomes a litigation weapon, the more
damage it does to the judiciary as a whole. The presumption
that judges will follow the law regardless of their personal
views and regardless of their associations is quickly being
replaced by the presumption that judges are frail,
impressionable, and not to be trusted. Make no mistake, today's
decision will invite ever more Constitution-based recusal
claims. And with it, faith in the judiciary will be undermined,
not strengthened. With each new blessing of a new "just as bad
as Caperton" recusal claim, the judiciary continues its
No. 2017AP2132.bh
14
constitutional takeover of new areas of law that the people,
through their written Constitution, left to themselves.
127
Nothing in the original public meaning of our
Constitution nor in Supreme Court precedent requires us to
transform Judge Bitney's social media misstep into a
constitutional controversy. I respectfully dissent.
128
I am authorized to state that Justices REBECCA GRASSL
BRADLEY and DANIEL KELLY join this dissent except for footnote 1
and ¶¶120-24, but they do join footnote 3.
No. 2017AP2132.bh
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