Miller v. Carroll
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The Supreme Court affirmed the decision of the court of appeals reversing the circuit court's denial of Father's motion for reconsideration of the circuit court's ruling in favor of Mother in a custody dispute, holding that the "extreme" facts of this case rebutted the presumption of judicial impartiality and established a due process violation.
The circuit court judge accepted Mother's Facebook "friend request" after a contested hearing but before rendering a decision. During the twenty-five days between the judge's acceptance of Mother's friend request and his issuance of a written decision entirely in her favor, Mother engaged with and reacted to at least twenty of the judge's Facebook posts. Mother further "shared" and "liked" several third-party posts related to an issue that was contested at the hearing. After discovering the Facebook friendship and communications, which the judge never disclosed, Father moved the circuit court for reconsideration, requesting judicial disqualification and a new hearing. The judge denied the motion. The court of appeals reversed and remanded the case with directions that the court proceed before a different circuit court judge. The Supreme Court affirmed, holding that the circumstances and facts of this case rose to the level of a serious risk of actual bias, which rebutted the presumption of the judge's impartiality.
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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-RespondentPetitioner. 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: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: June 16, 2020 January 13, 2020 Circuit Barron Michael J. Bitney JUSTICES: 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. NOT PARTICIPATING: ATTORNEYS: For the joint-petitioner-respondent-petitioner, there were briefs filed by Brandon M. Schwartz, Michael D. Schwartz, and Schwartz Law Firm, Oakdale, argument by Brandon M. Schwartz. Minnesota. There was an oral 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. 2 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, FILED Joint-Petitioner-Appellant, JUN 16, 2020 v. Sheila T. Reiff Clerk of Supreme Court Angela L. Carroll, Joint-Petitioner-RespondentPetitioner. 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. ¶1 REBECCA FRANK DALLET, J. of first impression: Affirmed. This case presents an issue an allegation of judicial bias arising from a circuit court judge's undisclosed social media connection with a litigant. No. ¶2 In this case, a circuit court judge 2017AP2132 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. friendship or The the judge never communications, disclosed and he the Facebook 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 Judge Michael Bitney of the Barron County Circuit Court presided. 1 Miller v. Carroll, 2019 WI App 10, 386 Wis. 2d 267, 925 N.W.2d 580. 2 2 No. ¶5 2017AP2132 We conclude that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation. I. ¶6 Accordingly, we affirm the court of appeals. FACTUAL BACKGROUND AND PROCEDURAL POSTURE 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 motion and disputed the allegations of domestic violence. the The case was assigned to Judge Michael Bitney. ¶7 Judge evidentiary Bitney hearing conducted over testimony of 15 witnesses. Judge Bitney took the June a 7-8, highly 2017, contested that two-day included the At the conclusion of the hearing, matter under advisement and gave the parties time to submit briefs, which they filed on June 16, 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. 3 All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated. 4 3 No. 2017. Three days after the briefs were filed, unbeknownst to Miller, Carroll Facebook. request.5 sent Judge Judge Bitney Bitney a "friend affirmatively request" "accepted" on Carroll's At the time Judge Bitney accepted the request, he had not yet rendered a decision on Carroll's motion. never 2017AP2132 disclosed Carroll's request or his Judge Bitney acceptance of the request. ¶8 of During the 25 days between Judge Bitney's acceptance Carroll's decision friend to "reactions" prayers and to Bible Carroll of a engaged written The "likes" favor, issuance "reacted to" at least 20 of Judge Bitney's Facebook posts.6 Carroll's her his and of in and with bulk entirely request Judge Bitney's verses that posts he were posted.7 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). 5 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-availableglobally/. 6 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. 4 No. Additionally, Carroll "loved" one of Judge 2017AP2132 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. Carroll "loved" the following Bible verse Bitney posted: "Fear no one. Matthew 10:26." 8 5 that Judge No. his posts.9 2017AP2132 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 domestic Carroll "liked" a third-party post related to violence and reacted "angry" to a third-party post entitled "Woman dies two years after being set on fire by exboyfriend." related to including "shares" Finally, domestic Judge of, Carroll "shared" violence.11 Bitney, third-party could a Carroll's see posts in these their third-party Facebook "reactions" respective post friends, to, and Facebook 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. 9 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. 10 "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. 11 6 No. "News Feed."12 Carroll's 2017AP2132 As a Facebook friend, Judge Bitney could also see posts, photographs, provided on her profile.13 and other information that she 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 decision in favor of Carroll. Bitney issued a written 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. 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. 12 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."). 13 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." 14 7 No. ¶11 2017AP2132 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 Bitney's favorable ruling.15 had authored regarding Judge 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 friendship with Carroll, but asserted that he had no bias and A GAL was appointed to the case pursuant to Wis. Stat. § 767.481(2)(c)3. 15 16 page. A Facebook user's "friend" list appears on her profile See Strunk v. State, 44 N.E.3d 1, 5 (Ind. Ct. App. 2015). Miller did not bring a claim for judicial disqualification pursuant to Wis. Stat. § 757.19, or file an ethics complaint with the Office of Lawyer Regulation. 17 8 No. 2017AP2132 that no "reasonable person in the circumstances of Mr. Miller or others . . . would seriously objectivity or impartiality." call into question the Court's 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 Facebook friendship request." than simply accepting the 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. Carroll's reactions, Judge Bitney did not deny seeing 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 concerns, and a consideration of this court's ethical rules. 9 No. Id., ¶¶21-27. 2017AP2132 The case was remanded for further proceedings before a different circuit court judge. ¶14 Carroll petitioned this court for review, which we granted. II. ¶15 "The right to an impartial judge is fundamental to our notion of due process." 320 STANDARD OF REVIEW Wis. 2d 166, 771 State v. Goodson, 2009 WI App 107, ¶8, 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. Judge Bitney's partiality can reasonably matter of law that we review de novo. be Whether questioned is a 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. Williams (2016) v. Pennsylvania, ("[A]n __ U.S. unconstitutional __, failure structural error . . . ."). III. ANALYSIS 10 136 to S. Ct. 1899, recuse See 1909 constitutes No. ¶17 We begin with background Facebook "friendship" entails. information 2017AP2132 on what a 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. ¶18 service A. Facebook "Friendships" is a Facebook with social approximately 2.5 media and billion social monthly networking 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. Smith v. State, 136 So. 3d 424, 432 (Miss. 2014). See 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." "Friends" have the ability other's Facebook profiles. to view and interact See id. with each See State v. Eleck, 23 A.3d 818, 820 n.1 (Conn. App. Ct. 2011). ¶19 is When a Facebook user logs onto her Facebook page, she automatically presented with updated activity Facebook "friends" on the Facebook News Feed. from her See Rembrandt Soc. Media, LP v. Facebook Inc., 22 F. Supp. 3d 585, 590 (E.D. Va. 2013). stories from The News Feed is a "constantly updating list of people and Pages 11 that [the User] follow[s] on No. Facebook." 2017AP2132 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." is the Judge's Pal: Daniel Smith, When Everyone Facebook Friendship and the Appearance of Impropriety Standard, 3 Case W. Res. J.L. Tech. & Internet 66, 97 (2012). site, A user can interact with Facebook friends on the including and, in "posting general, and reading communicating comments, events, with . . . others." news, 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 Smith, knows supra about ¶19, at the 97. average The 'real-life' acquaintance." accessibility of personal information on popular social media platforms such as Facebook presents unique concerns and potential for judicial bias. 12 implications regarding the No. ¶21 B. Judicial Bias and the Due Process Clause "A fair trial in requirement of due process." (1955). a fair tribunal is 2017AP2132 a basic In re Murchison, 349 U.S. 133, 136 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. evaluating Wisconsin whether courts approach. a party have taken Id., ¶26. has both rebutted a the Id. In presumption, subjective and objective A judge must disqualify himself from a case if he subjectively determines that he is unable to remain impartial. State N.W.2d 867 (1982). v. Walberg, Judge 109 Bitney Wis. 2d 96, indicated 105-06, that he 325 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," probability decisionmaker Id. at 877. of is that actual too recusal bias high to on be was the required part of because the constitutionally judge "the or tolerable." Applying existing principles to a new fact pattern, the Court reaffirmed that a court must assess whether "under a 13 No. realistic appraisal of psychological tendencies 2017AP2132 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 clarified on objective that and reasonable "[a]pplication of perceptions" the and constitutional standard . . . will thus be confined to rare instances." Id. at 884, 890. ¶23 involving Since Caperton, judicial bias, this court Herrmann, has 364 decided one Wis. 2d 336. case 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." 14 Id. at 885 (omissions No. 2017AP2132 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." judicial Id. at 886-87; id. at 876 ("[M]ost matters relating to disqualification [do] not rise to a constitutional level." (quoted source omitted)). C. ¶25 We presume impartially, and Wis. 2d 336, ¶24. and conclude Application that without Judge Bitney prejudice. that Facebook These See fairly, Herrmann, 364 We consider the totality of the circumstances Miller has rebutted showing "a serious risk of actual bias." 884.18 acted circumstances friend request include: and Judge this presumption by Caperton, 556 U.S. at (1) the timing Bitney's of the 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 friendship: first consider the timing of the Facebook both when Carroll sent the friend request and when 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). 18 15 No. 2017AP2132 Judge Bitney affirmatively accepted it. Although Judge Bitney had Carroll "thousands" of established "friend." Facebook friends, was not an 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." it. A user can decline a friend request or simply ignore 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 to Carroll's request, Judge Bitney accepted access off-the-record facts that were relevant to the dispute, namely information regarding Carroll's character and parental fitness.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." 19 16 No. 2017AP2132 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" regarding his two other posts, knee surgery, and commented on two posts 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 Bitney never promoting domestic violence awareness. ¶29 At the reconsideration hearing, Judge 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 17 No. opportunity to do so. 2017AP2132 Moreover, Judge Bitney was very active on Facebook during this time period, thus increasing the likelihood of him seeing Facebook.20 Carroll's The "likes," significant "loves," number of and "shares" undisclosed on 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. 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. 20 18 No. ¶31 2017AP2132 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. Bitney's posts, By reacting to and engaging with Judge 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 rebut. and evidence Miller did not have the opportunity to Under a "realistic appraisal of psychological tendencies human weaknesses," this off-the-record information Carroll, created a serious risk of actual bias. about 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: "shared" third-party posts domestic violence. related to domestic Carroll violence, "reacted" to articles about the effects of domestic violence,21 and showed herself as "interested in" a domestic violence 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. 21 19 No. awareness event. basis for 2017AP2132 Allegations of domestic violence formed the Carroll's motion to modify child custody and placement, and a finding of domestic violence formed the basis for Judge supported Bitney's her decision. allegation Carroll's that Miller had Facebook activity 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-therecord 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 20 No. 2017AP2132 conduct commission to determine if further steps were required. Id. ¶34 steps Unlike in Youkers, where the judge took affirmative following disclose the the communications, friendship and the Judge Bitney subsequent failed to communications.22 Judge Bitney could have initially ignored or denied Carroll's friend request and disclosed the request to the parties. He could he have received also disclosed notification of the Facebook Carroll's friendship reactions to his when 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 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. 22 Facebook allows its users to control what content appears on their respective News Feed. See https://www.facebook.com/help/964154640320617/?helpref=hc_fnav 23 21 No. Bitney issued his decision. any means of interactions disclosure, between Judge 2017AP2132 Because of Judge Bitney's lack of Miller Bitney was and unable to Carroll review and the 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. a structural error, which The serious risk of actual bias is 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.'" 850 State v. Pinno, 2014 WI 74, ¶49, 356 Wis. 2d 106, 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 1909 ("The process Court has violation Id.; see also Williams, 136 S. Ct. at little arising trouble from the concluding that participation a due 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). We need not reach the merits of Judge determination as it relates to legal custody, placement, and child support. 24 22 Bitney's physical No. IV. ¶36 2017AP2132 CONCLUSION We conclude that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation. By the Accordingly, we affirm the court of appeals. Court.—The decision affirmed. 23 of the court of appeals is No. ¶37 opinion, ANN WALSH BRADLEY, J. (concurring). the concluded court of appeals that 2017AP2132.awb In a unanimous "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. Miller has demonstrated the judge was Accordingly, objectively biased." Miller v. Carroll, 2019 WI App 10, ¶2, 386 Wis. 2d 267, 925 N.W.2d 580. ¶38 I agree. Although I join the majority opinion1, 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, partiality. Carroll, gave rise to the appearance of 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 2 See Wis. Stat. §§ 805.17(3), 806.07. 1 18. No. ¶40 2017AP2132.awb 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 judge3 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 constitutional due that process "the appearance principles of whenever bias a offends 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 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. 3 2 No. circumstances." the Id., ¶24. appearance of bias is 2017AP2132.awb Further, the court emphasized that 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." these statements recognize that Id., ¶26. the right to Importantly, 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) United (quoting Offutt v. 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 Larkin, 421 U.S. 35, 47 (1975)). Withrow v. 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 . . . ." U.S. at 884 (emphasis added). 3 Caperton, 556 No. ¶45 2017AP2132.awb Indeed, the Caperton court specified that it was not addressing whether there was actual bias present: We do not question his subjective impartiality and propriety. Nor do whether there was actual bias. . . . findings of we determine [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 contending parties.'" the scales of justice equally between 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. as "probability" inquiry. and "perception" in It employed terms such framing a standard and Scholars and commentators differ on what role the Murchison "appearance of bias" plays in the Caperton due process analysis. Co.: Bias, See, e.g., Comments, Caperton v. A.T. Massey Coal Due Process Limitations on the Appearance of Judicial 123 Harv. L. Rev. 73, 78-79 disparate views). 4 (2009) (collecting three No. ¶48 Some transcript of insight the can oral be gleaned argument in from a 2017AP2132.awb review of the Two of the Caperton. 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?" 36. Id. at Justice Kennedy subsequently interjected, "But our whole system is designed to ensure confidence in our judgments." Id. at 37. 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."). 4 5 No. ¶51 bias 2017AP2132.awb The upshot of the analysis is that when appearance of is part of a exacting standard. impartiality by due process challenge, it comes with an A defendant may rebut the presumption of demonstrating that the reveals a serious risk of actual bias. appearance of 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, __ Wis. 2d __, __ N.W.2d __. ¶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 Caperton, further 556 of actual U.S. observed, at bias. 876, because Majority 886-87). almost As every op., the state ¶24 (citing Caperton has a court 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 will be resolved without resort to the Constitution. See also State v. Herrmann, 2015 WI 84, ¶3, 364 Wis. 2d 336, 867 N.W.2d 772 (Ann Walsh Bradley, J., lead op.). 5 6 No. 2017AP2132.awb 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. a subject with which this court has some familiarity. v. Allen, curiam); 2010 State WI v. 10, 322 Henley, Wis. 2d 372, 2011 WI 67, 778 338 This is See State N.W.2d 863 (per 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: sole responsibility disqualification "determining whether to recuse is the of from the individual participation is justice for sought . . . ." whom Id., ¶39. ¶55 benefit The majority in Henley made this determination without of briefs or argument on the issue. Claiming a powerlessness to act, the majority in essence treated the due process claim challenging the nonjusticiable. Thus, cannot coexist peacefully participation Henley's with analysis. 7 of a justice circle-the-wagons the majority's due as response process No. ¶56 Although, as here, a judge against 2017AP2132.awb 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 recuse, a reviewing court objectively determines whether to the failure to recuse is consistent with due process principles. ¶57 Caperton announced the need for objective review of recusal challenges, Indeed, the recusal decision regardless Caperton of court, a of which justice on the level involved the West of a the review Virginia court. of the 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 Caperton, The and majority opinion explicitly in adopts the the present "objective case follows 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. 8 No. ¶59 When the 2017AP2132.awb 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 begins and ends with the decision of that judge. recusal 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 9 No. court. 2017AP2132.awb 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, Approach to Keeping Judicial Up Appearances: Recusal, 53 U. Kan. A L. Process-Oriented 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. 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."). 6 10 No. ¶64 2017AP2132.awb For the foregoing reasons, I respectfully concur. 11 No. ¶65 ANNETTE KINGSLAND ZIEGLER, J. 2017AP2132.akz (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 justices) in Herrmann, and my writing in Allen. by two other 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). "the extreme facts of this case rebut the Here, 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 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. 1 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. 1 No. emphasize that Caperton due process violations 2017AP2132.akz are limited to the most extraordinary and extreme cases. facts presented here are indeed extraordinary. rare and But the 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 caution I also write separately, in light of this case, to the Wisconsin bench about the hazards social media, and Facebook in particular. of electronic 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. A. ¶68 ANALYSIS Due Process And Caperton 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." re Murchison, 349 U.S. 133, 136 (1955). In 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 2 No. 2017AP2132.akz 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 judge's In Caperton, failure to the recuse Supreme violates Court due concluded process if that a there is "objective proof of actual bias" or "a serious risk of actual bias." Herrmann, concurring) appearance (citing or 364 Wis. 2d 336, Caperton, allegation of 556 bias U.S. alone ¶158 at (Ziegler, 883-84). will not A rebut J., mere 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. 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. 2 3 No. 2017AP2132.akz "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. 4 No. 2017AP2132.akz "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. 5 No. 2017AP2132.akz 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, concurring). centered 322 Wis. 2d 372, ¶¶263-69 (Ziegler, J., I note that the extreme facts of Caperton largely 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 during a opportunity maintain a pending proceeding, to Facebook communicate with friendship giving the with that judge, and a litigant, litigant without the 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. 6 Unsurprisingly, the No. 2017AP2132.akz 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. ¶73 As I explain "perfect storm" Herrmann, 364 (quoting Allen, concurring)). of below, "extreme Wis. 2d 336, 322 The we and ¶138 See infra, ¶¶15-17. have extraordinary (Ziegler, Wis. 2d 372, majority nothing opinion ¶269 aptly J., less than facts" a here. concurring) (Ziegler, summarizes J., 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. ¶74 Here, a Caperton And This Case 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 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. 3 7 No. fact-finder; and, he had no safeguards in inappropriate communication with the party. 2017AP2132.akz place to avoid 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. had this opportunity because of Judge Bitney's Carroll 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. in many ways extraordinary even than more those The facts of this case are connected, in Caperton, direct, where extreme, a third and 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. 8 Knowing the No. 2017AP2132.akz 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 the Court stated, "The temporal relationship between 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. included information relevant to the Those interactions issues to be Carroll's credibility, character, and parental fitness. decided—— 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 requested, Bitney and Judge issued his Bitney final personally 9 decision. and Carroll affirmatively No. 2017AP2132.akz 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 than in Here, the timing of the conduct is even more direct Caperton. relationship" between In Caperton, the court's there was a "temporal 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. occurred at the same time. and the many Facebook They The commencement of the friendship communications occurred during the decision-making phase of the proceedings where the judge, not a jury, was the sole decision-maker. Court concluded that at the time In Caperton, the Supreme 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. Facebook communications were directly related credibility as a witness and fitness as a parent. to The Carroll's 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 10 No. more extraordinary probability, Carroll's but a case; deciding it. than in Caperton, certainty, indeed, he that was as it Judge was Bitney currently 2017AP2132.akz not just would presiding over a hear and 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 all In Caperton, the parties and the public at large were well aware of Blankenship's attempt to influence the election. Unlike here, where Miller knew nothing of Carroll's actions, Caperton knew Blankenship were appeal supporting by all attempting along to Justice that influence A.T. the Benjamin's Massey outcome of candidacy. and the 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. this case, Judge Bitney gave Carroll an But in opportunity to communicate with him and try to influence him through their Facebook friendship knowledge at all. while the other party, Miller, had no 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. 11 No. ¶79 2017AP2132.akz Furthermore, in Caperton, there was a full record of the controversy and Justice Benjamin thoroughly considered and analyzed his ability to remain impartial. noted, "Justice motions and Benjamin explain was his careful reasons to why, The Supreme Court address on his the view recusal 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 Caperton, 556 U.S. at 882. presented by Caperton, bias had been established." "In other words, based on the facts Justice Benjamin conducted a probing search into his actual motives and inclinations" and made a thorough record. Judge Bitney. Id. In this case, the same cannot be said of 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 seeing parte communication. Carroll's Facebook posts. Judge various reactions But did he Bitney to not. could and Nor have comments did he deny Carroll's Facebook posts relating to domestic violence. he deny viewing her Facebook profile. the safeguards he has in place. manages his Facebook account. Bitney admitted that the denied on his seeing Nor did He could have explained He could have explained how he But he did not. parties 12 "presented Rather, Judge accurately the No. 2017AP2132.akz 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 motion Bitney's was an statement accurate that the reflection evidence of his presented in "interaction" the 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 jury, if It is worth noting that, in a case tried before a 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 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. 4 13 No. of the motion for recusal and little else. 2017AP2132.akz 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. Facebook friendship with Judge Bitney in Id. which She had a 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." actions, but Id. the In party's Caperton, actions it and was their not the judge's "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. Benjamin concluded that no one 14 could "point to any Justice actual No. conduct or activity 'improper.'" on [his] part which 2017AP2132.akz could be termed 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."). facts are different. It was the judge who Here, the 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, Caperton, 679 S.E.2d at 293). 556 U.S. at 882 (quoting 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 15 No. 2017AP2132.akz accepted access to off-record and relevant facts about Carroll when he accepted disclose his her Facebook friend request. friendship with Judge Bitney Carroll. disclose any of their Facebook interactions. He did not did not Judge Bitney's conduct in allowing a party such access in this case was not just improper. ¶85 It was extraordinary. 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 16 No. 2017AP2132.akz 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 overwhelmingly in domestic violence favor Carroll, of against and Carroll, uprooted was the pre- existing physical placement of the child.5 ¶87 Under extraordinary Caperton, this perfect facts, viewed storm of objectively, extreme and undoubtedly demonstrates a serious risk of actual bias. C. ¶88 The Preamble Judges And Facebook to the Wisconsin Supreme Court Rules setting forth the Code of Judicial Conduct ("the Code") states: an Our legal system is based on the principle that independent, fair and competent judiciary will 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. 5 17 No. 2017AP2132.akz 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. J., concurring) See Herrmann, 364 Wis. 2d 366, ¶151 (Ziegler, ("'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)). Due In this case, Miller brought a claim grounded in the 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 18 No. used with caution. 2017AP2132.akz 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 Facebook, and ethical the to what extent issues judges Facebook ought poses for to use 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 19 No. St. Mary's Vincent J. Legal Jones, Malpractice & Friends, and Judges, Ethics 2 Facebook: 2017AP2132.akz (2012); The Samuel 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. 158-71 (summarizing Oklahoma, and approaches and Massachusetts Singh, supra ¶91, at stating take a that: "strict Florida, 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 use Judge Bitney was not the first judge to have chosen to electronic troubling social cases media. involving media in recent years. Indeed, judicial use there of have been electronic many social 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. (Mass. Sex App. Offender Ct. Registry 2012), in Bd., which a 959 N.E.2d hearing 990 officer posted "inappropriate" comments on Facebook relating to Doe's appeal of his offender. 20 classification as a sex No. See also Kurita, supra ¶91, at 211-33 2017AP2132.akz (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. Thank you for your prayers." ¶94 Justice was served. Id. at 189. I note that this case, and many others, involve use of electronic social media by a third party, not just the judge. judge who uses electronic social media subjects himself A 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 bench to Accordingly, weigh the I strongly advantages urge and electronic social media like Facebook. my colleagues disadvantages of on the using See Jones, supra ¶91, at 302 (concluding that, "[t]o avoid the perils that emanate from 21 No. 2017AP2132.akz 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 caution. judge must proceed with the utmost diligence and 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 impartiality; place the the judges' judiciary independence, in disrepute; integrity, or or interfere with their ability to carry out the substantial duties that have been entrusted to them"). II. ¶96 CONCLUSION 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). case rebut establish a the due Here, "the extreme facts of this presumption process of judicial violation." impartiality Majority op., ¶36. and I conclude, consistently with Caperton, that there is a serious risk that Judge Bitney was actually biased, in violation of the Due Process Clause. 22 No. ¶97 2017AP2132.akz 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. emphasize that Caperton due I write separately to again process violations are limited to the most extraordinary and extreme cases. facts presented here are indeed extraordinary. rare and But the 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 caution I also write separately, in light of this case, to the Wisconsin bench about the hazards social media, and Facebook in particular. of electronic 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. ¶99 But more is present here. For the foregoing reasons, I respectfully concur. 23 No. ¶100 REBECCA FRANK DALLET, J. 2017AP2132.rfd (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." Prof'l Responsibility, Formal Op. ABA Comm'n on Ethics & 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 Additionally, as isolated Facebook or and out other of touch." social Id. media at 1. platforms have become important campaign tools for judges to deliver campaign messages to the voters in Wisconsin. Social Media judicial using by Judges, campaigns social can media to The, 60 See Susan Criss, Use of Advocate realistically deliver their (Texas) afford to message 18 ("Few refrain to the from voting public."). ¶101 A attorney, judge's without impartiality. Facebook more, Requiring does connection not automatic rebut to the a party or an presumption of 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, 1 No. 2017AP2132.rfd 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 relationship Facebook the with a degree or person."). required intensity If judicial a mere recusal, of a judge's acquaintance it would on promote gamesmanship among parties and weaponize social media. ¶102 However, social media. reasoned, judges As "[a] the judge must be American may cautious Bar in their Association participate in use (ABA) electronic of has social networking, but as with all social relationships and contacts, a judge must . . . avoid any conduct that would undermine judge's independence, integrity, or impartiality . . . ." Formal Op. 13-462 at 1. the ABA 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 judge's elected online judges'" "friendships," (quoted just like source a omitted)). judge's friendships, must be approached with care and caution. 2 real A life No. 2017AP2132.rfd ¶103 I am authorized to state that Justice BRIAN HAGEDORN joins this concurrence. 3 No. 2017AP2132.bh ¶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. case. This is a relatively normal appearance of bias Granted, given its intersection with modern social media, 1 No. 2017AP2132.bh an area comparatively unexplored in judicial ethics this fact pattern carries with it a sense of circles, 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. ¶107 The Due THE CONSTITUTION AND RECUSAL Process Clause of the Fourteenth Amendment prohibits states from depriving "any person of life, liberty, or property, without due process of law." § 1. U.S. Const. amend. XIV, The touchstone for a claim based on this constitutional protection is the "settled usages and modes of existing in the common and statute law of England." Ohio, 273 U.S. 510, 523 (1927); Hoboken Land & Improvement Co., see also 59 U.S. proceeding Tumey v. Murray's Lessee v. (18 How.) 272, 277 (1856); Honda Motor Co. v. Oberg, 512 U.S. 415, 430 (1994). ¶108 Under the common law, the disqualification were simple and narrow: the judge in his own case. See grounds for judicial a man could not act as generally Williams v. 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. 1 2 No. 2017AP2132.bh Pennsylvania, dissenting). 136 S. Ct. 1899, 1917 (2016) (Thomas, J., 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, sufficient to not trigger potential judicial scholar summarized it this way: bias, was the only disqualification. concern Id. One "English common law practice at the time of the establishment of the American court system was simple in interest. the extreme. Judges disqualified for financial 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 3 No. 2017AP2132.bh court in the first place.2 (Thomas, J., dissenting). or constitutional rules See Williams, 136 S. Ct. at 1919 None of that violated the common law for judicial disqualification as understood at the time. ¶110 The United constitutionally tribunal. States protected Supreme due Court process right has to recognized an a impartial 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." U.S. 813, 828 Aetna (1986). Life The Ins. vast Co. v. majority Lavoie, of 475 judicial disqualification issues are matters for state law and policy, not the Constitution. ¶111 Until Tumey, 273 U.S. at 523. recently, the Supreme Court's due precedent was consonant with the narrow common law rule. process 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 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). 2 4 No. 2017AP2132.bh 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." 135. Murchison, 349 U.S. at 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 Massey afforded Coal Co., by 556 the Constitution. U.S. 868 (2009). Caperton In v. A.T. 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. than all Id. at 872-73. other supporters Those expenditures, which were more combined, had a "significant and disproportionate influence" in helping elect Justice Benjamin in 5 No. 2017AP2132.bh a close race. storm of Id. at 873, 884. This was, as it were, a perfect 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. an But its application was limited to cases where, under objective present. inquiry, "a Id. at 884-86. serious risk of actual bias" is "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: Id. at "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." 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 6 No. 2017AP2132.bh cannot be tolerated. probability of decisionmaker is Id. at 877 (recusal required where "the actual too bias high on to the be part of the constitutionally judge or 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 Clause to extreme situations. application of the Due Process 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. 892-93. Id. at The Supreme Court had previously said that "[m]atters of kinship, personal bias, state policy, remoteness of interest, would seem generally discretion." given this, to be matters merely of legislative Id. at 892 (quoting Tumey, 273 U.S. at 523). the Chief Justice reasoned, so too are And common recusal issues like "friendship with a party or lawyer, prior employment prior experience, speeches and membership writings, countless other considerations." in clubs religious Id. at 892. 7 or associations, affiliation, and No. 2017AP2132.bh ¶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. majority does here. That is what the 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. thousands of friends, smaller circle. but only A Facebook user can have follow the updates of a far 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. 8 No. 2017AP2132.bh ¶119 For instance, we do not know, and therefore cannot conclude, whether Judge violence-related posts. Bitney ever saw Carroll's domestic 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 Facebook friend request. decision to accept Carroll's 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. do not follow every comment or like on Again, many people 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. 9 Nor would "Merry No. 2017AP2132.bh Christmas!" or "The Sunday, didn't he?" pastor preached a wonderful sermon on 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 unique. Suppose Carroll and Judge Bitney were already friends on Facebook. and members in the community are not that 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 isolated members of the community. that judges are They read the news. not 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. 10 And it is precisely No. 2017AP2132.bh 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 Bitney should member have of been this court would more careful. agree that Knowingly Judge 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. of bias, But the claim here is that, far beyond an appearance this miscue was extreme, exceptional, extraordinary, raising a serious risk of actual bias. and 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., 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 longstanding 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. 3 11 No. 2017AP2132.bh dissenting) ("Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. all The Court today continues its quixotic quest to right wrongs and Constitution."). repair We should all imperfections therefore default through to the 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. 12 No. 2017AP2132.bh really the most extreme thus far." dissenting). Id. at 899 (Roberts, C.J., 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, damage it does to the judiciary as a whole. the more The presumption that judges will follow the law regardless of their personal views and replaced regardless by the of their associations presumption that impressionable, and not to be trusted. decision claims. will invite more judges quickly being are frail, Make no mistake, today's Constitution-based recusal And with it, faith in the judiciary will be undermined, not strengthened. as ever is Caperton" With each new blessing of a new "just as bad recusal claim, the 13 judiciary continues its No. 2017AP2132.bh constitutional takeover of new areas of law that the people, through their written Constitution, left to themselves. ¶127 Nothing Constitution transform nor Judge in in the original Supreme Bitney's constitutional controversy. Court social public meaning precedent media of requires misstep our us to into a 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. 14 No. 2017AP2132.bh 1
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