I write on the issue of judges having litigants or lawyers who appear before them as friends on Facebook.
Rule 62 of the Illinois Supreme Court Rules is part of Canon of Judicial Ethics. “A judge should not allow the judge’s family, social or other relationships to influence the judge’s judicial conduct or judgement.” That rule became affective in 1987. Most likely there was no Facebook web program at that time.
In the June 16, 2020, issue of the Chicago Daily Law Bulletin, there was an article by Scott Bauer of the Associated Press for Madison Wisconsin. The headline is: “Judge’s Facebook friendship Upends of Wisconsin custody case.” Although the article is about a page and a quarter long, the reported opinion of In re the paternity of B.J.M., known as Miller v. Carroll it is 35 pages long. The case was decided in 2020. The citation is 2020 WI 56.
“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.” The judge “accepted a Facebook friend request” from the mother in a custody dispute after a contested hearing, but before rendering a decision.” The mother liked 16 of the judge’s post, loved two of them, commented on two of his posts and shared and liked several third-party posts relating 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.”
After the father learned of this, he filed a motion to reconsider, requested disqualification of the judge and a new hearing. At that hearing, the judge admitted the interaction between himself and the mother but denied the motion and claimed he was impartial because “[h]e already decided on his ruling prior to accepting her friend request.”
The father appealed. The circuit court of appeals reversed the denial of the motion to reconsideration. The mother appealed to the Wisconsin Supreme Court. “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.”
In paragraph 17 of the reported opinion, “We begin with background information on what Facebook “friendship” entails. We next articulate the standard for resolving when the probability of actual bias rises to the level of due process violation, and apply that analysis to the facts of this case.”
In paragraph 26 of the opinion, the court noted that the judge had to affirmatively accept the Facebook request by the mother. She had not been a previously established friend. She was a current litigant who requested to be the friend of the judge “only after she testified at a contested evidentiary hearing in which he was the sole decision-maker.” The court notes, at paragraph 27, “Judge Bitney took the affirmative step of accepting Carroll’s “friend request” prior to issuing a written decision on her motion…” “A user can decline a friend request or simply ignore it.” 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.
In paragraph 32 of the opinion, the Wisconsin Supreme Court comments that mother’s Facebook page contained many articles dealing with domestic violence and that she was interested in domestic violence. “Carroll’s Facebook activity supported her allegations that Miller had committed domestic violence against her and 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.”
The Wisconsin Supreme Court had unkind words for Judge Bitney also. At paragraph 33 the court says: “Finally, we considered Judge Bitney’s lack of disclosure, at any point in any way or form as an important factor in accessing the serious risk of actual bias.” The Wisconsin Supreme Court then cites Youkers v. State at 400 S.W.3d 200 (Texas Appellate Court 2013), there the father of a victim in a criminal case sent a friend request to the judge and sent a private message on Facebook to the judge asking for leniency for the defendant in the criminal case. “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.” That judge advised the father that the communication will be in the court file and he disclosed the message to the lawyers in both cases and contacted the Judicial Conduct Commission to see if any further steps were necessary.
In paragraph 34, the Wisconsin Supreme Court noted that Judge Bitney did not disclose the friendship, that he could have ignored the friend request, he could have disclosed the friendship, The Supreme Court of Wisconsin noted that the friendship was discovered only after the judge had rendered the decision in the custody case and was not disclosed by the judge until it was brought to his attention in the Motion to Reconsider.
At the end of the majority opinion, paragraph 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.”
One of the Justices on the Wisconsin Supreme Court, Ann Walsh Bradley, wrote a concurring opinion “because its analysis fails to discuss the role that appearance of bias can play in the due process analysis. It neglects to inform the reader that its analysis is at odds with this Court’s “hands- off in certain due process challenges.” Paragraph 38.
Justice Walsh Bradley at paragraph 40 says that the test should be objective, rather than subjective on the issue of impartiality. “The objective test is premised on whether a reasonable person could question the judge’s impartiality. She then cites another Wisconsin case entitled State v. Gudgeon, 2006 WI App 143.
At paragraph 42, Justice Walsh Bradley says, quoting Gudgeon, “The appearance of bias offends constitutional due process principles whenever a reasonable person – taking into consideration human psychological tendencies and weakness- concludes that the average judge could not be trusted to “hold the balance nice, clear and true” under all the circumstance.”
Another justice, Annette Kingsland Ziegler, wrote a concurring opinion, beginning at paragraph 65. Along with Justice Walsh Bradley she cites the United State Supreme Court opinion of Caperton v. A.T. Massey Coal Company Inc. at 556 U.S. 868 (2000). In that case, the issue was the impartiality or not of a judge who had been vigorously supported during his election seeking entry to the West Virginia Supreme Court by Mr. Massey. In Caperton, the United States Supreme Court did not mandate that the lack of impartiality of the judge questioned resulted in a lack of due process to the litigant.
In the end of paragraph 88, this concurring opinion has a discussion of the issue of judges and Facebook.
In paragraph 91, she says: “Judicial use of Facebook has spawned vigorous debate regarding whether and to what extend judges ought to use Facebook, and the ethical issues Facebook poses for judges.” She then cites 6 different articles published in various legal publications. She also cites cases from Florida, Massachusetts, The Ninth Circuit Federal Court of Appeals, and New Mexico. “I conclude, consistently with Caperton, that there is a serious risk that Judge Bitney was actually biased, in violation of the due process clause.”
Beginning at paragraph 100, a third justice, Rebecca Frank Dallet, wrote “Separately to provide additional guidance and clarification for the bench and bar. There is nothing inherently inappropriate of the judge’s use of social media platforms like Facebook.” She says in paragraph 101, “A judge’s Facebook connection to party or attorney, without more, does not rebut the presumption of impartiality.” For this purpose, she cites Chace v. Loisel, 170 So. 3d 802, 804 (Florida District Court of Appeals 2014, and later, in 2018, a Florida opinion entitled Herssein v. United Services Auto Association at 271 Southern 3rd 8d9, Florida Supreme Court 2018).
One of the Justices, Brian Hagedorn, dissented beginning paragraph 104. He says: “The question presented is whether the record in this case demonstrates that the Fourteenth Amendment’s Due Process Clauses required Judge Bitney’s refusal and therefore whether Miller’s due process right to an impartial tribunal was violated.” Paragraph 105. This justice traces the history of cases dealing with judicial impartiality and recusal. At paragraph 114 he says: “Two problems plague the majority’s analysis. First, most of the Court’s opinion reads like an ordinary discussion on refusal, 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.”
In paragraph 124, this dissenting Justice says: “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 write all requisal wrongs.” Citing Justice Scalia of the United States Supreme Court in Caperton at 556 U.S. 903. See paragraph 124 of the Miller case.
At paragraph 127, this Justice says: “I respectfully dissent.” Two other Justices joined his dissent. Rebecca Grassl Bradley and Daniel Kelly. Then follows six pages of footnotes.
The Wisconsin opinion is certainly not binding on Illinois judges or litigants. Most certainly lawyers are entitled to have friends and so are judges. Is it appropriate for lawyers and judges to be Facebook friends with each other especially in instances in which a lawyer may appear in front of the judge? Is not the judiciary and the legal profession better served by avoiding all appearances of impropriety and bias?
By Gary L. Schlesinger, published in Trial Briefs, The newsletter of the ISBA’s Section on Civil Practice & Procedure, July 2020