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: June 16, 2020 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: January 13, 2020 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Barron 

JUDGE: 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, Minnesota. There was an oral 

argument by Brandon M. Schwartz.
2

For the joint-petitioner-appellant, there was a brief filed 

by Stephanie L. Finn, David J. Rice, Terry L. Moore, and Herrick 

& Hart, S.C., Eau Claire. There was an oral argument by Terry L. 

Moore.

An amicus curiae brief was filed on behalf of Wisconsin 

Chapter of American Academy of Matrimonial Lawyers by Daniel P. 

Bestul and Duxstad & Bestul, S.C., Monroe; with whom on the 

brief was Jennifer Van Kirk and Peckerman, Klein & Van Kirk LLP, 

Milwaukee. 
2020 WI 56

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP2132

(L.C. No. 2011PA46PJ)

STATE OF WISCONSIN : IN SUPREME COURT

In re the Paternity of B.J.M.:

Timothy W. Miller,

 Joint-Petitioner-Appellant,

 v.

Angela L. Carroll,

 Joint-Petitioner-RespondentPetitioner.

FILED

JUN 16, 2020

Sheila T. Reiff

Clerk of Supreme Court

DALLET, J., delivered the majority opinion of the Court, in 

which ROGGENSACK, C.J., and ZIEGLER, J., joined; and in which 

ANN WALSH BRADLEY, J., joined except for footnote 18. ANN WALSH 

BRADLEY, J., filed a concurring opinion. ZIEGLER, J., filed a 

concurring opinion. DALLET, J., filed a concurring opinion, in 

which HAGEDORN, J., joined. HAGEDORN, J., filed a dissenting 

opinion, in which REBECCA GRASSL BRADLEY, and KELLY, JJ., joined

except for footnote 1 and ¶¶120-24, but do join footnote 3.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 REBECCA FRANK DALLET, J. This case presents an issue 

of first impression: an allegation of judicial bias arising 

from a circuit court judge's undisclosed social media connection 

with a litigant.
No. 2017AP2132 

2

¶2 In this case, a circuit court judge accepted a 

Facebook "friend request" from the mother in a custody dispute 

after a contested hearing, but before rendering a decision.1 In 

the course of their 25-day Facebook "friendship," the mother 

"liked" 16 of the judge's Facebook posts, "loved" two of his 

posts, commented on two of his posts, and "shared" and "liked" 

several third-party posts related to an issue that was contested 

at the hearing. The judge never disclosed the Facebook 

friendship or the communications, and he ultimately ruled 

entirely in the mother's favor.

¶3 After discovering the Facebook friendship, the father 

moved the circuit court for reconsideration, requesting judicial 

disqualification and a new hearing. At the reconsideration 

hearing, the judge admitted to the Facebook interactions between 

himself and the mother. However, he denied the motion and 

claimed that he was impartial because he had already decided on 

his ruling prior to accepting her friend request.

¶4 The court of appeals reversed the circuit court's 

denial of the motion for reconsideration and remanded the case 

with directions that it proceed before a different circuit court 

judge.2

 

1 Judge Michael Bitney of the Barron County Circuit Court 

presided.

2 Miller v. Carroll, 2019 WI App 10, 386 Wis. 2d 267, 925 

N.W.2d 580.
No. 2017AP2132 

3

¶5 We conclude that the extreme facts of this case rebut 

the presumption of judicial impartiality and establish a due 

process violation. Accordingly, we affirm the court of appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶6 Timothy Miller and Angela Carroll stipulated to joint 

legal custody and shared physical placement of their minor son, 

Bruce, in August 2011.3 Five years later, Carroll filed a motion 

to modify the order pursuant to Wis. Stat. § 767.451 (2017-18).4 

Carroll sought sole legal custody, primary physical placement, 

child support payments, and a change in residence. Carroll's 

motion and supporting affidavits alleged that Miller engaged in 

acts of domestic violence against Carroll, and included a copy 

of a domestic abuse injunction that Carroll obtained that same 

month. Carroll also alleged that Miller failed to adequately 

parent and discipline Bruce. Miller vigorously opposed the 

motion and disputed the allegations of domestic violence. The 

case was assigned to Judge Michael Bitney.

¶7 Judge Bitney conducted a highly contested two-day 

evidentiary hearing over June 7-8, 2017, that included the 

testimony of 15 witnesses. At the conclusion of the hearing, 

Judge Bitney took the matter under advisement and gave the 

parties time to submit briefs, which they filed on June 16, 

 

3 For consistency, we will use the same pseudonym for the 

parties' minor son as utilized by the court of appeals. Miller, 

386 Wis. 2d 267, ¶1 n.1.

4 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated.
No. 2017AP2132 

4

2017. Three days after the briefs were filed, unbeknownst to 

Miller, Carroll sent Judge Bitney a "friend request" on 

Facebook. Judge Bitney affirmatively "accepted" Carroll's 

request.5 At the time Judge Bitney accepted the request, he had 

not yet rendered a decision on Carroll's motion. Judge Bitney 

never disclosed Carroll's request or his acceptance of the 

request.

¶8 During the 25 days between Judge Bitney's acceptance 

of Carroll's friend request and his issuance of a written 

decision entirely in her favor, Carroll engaged with and 

"reacted to" at least 20 of Judge Bitney's Facebook posts.6 The 

bulk of Carroll's "reactions" to Judge Bitney's posts were 

"likes" to prayers and Bible verses that he posted.7 

 

5 Facebook friendship is established by the acceptance of a 

previously sent "friend" request. See Law Offices of Herssein & 

Herssein, P.A. v. United Servs. Auto. Ass'n, 271 So. 3d 889, 895 

(Fla. 2018).

6 Facebook users can click a "like" button, which is 

represented by a thumbs-up icon, to "like" a Facebook page or 

post. See Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013). 

In 2016, Facebook also included other "reactions" in addition to

the "like" button: Love, Haha, Wow, Sad, or Angry. 

https://about.fb.com/news/2016/02/reactions-now-availableglobally/.

As the parties admit, the record may not include all of 

Carroll's Facebook activity with Judge Bitney.

7 Some of the posts that Carroll "liked" include:

 Dear Lord, give me this day the grace to be charitable 

in thought, kind in deed and loving in speech toward 

all. Amen.
No. 2017AP2132 

5

Additionally, Carroll "loved" one of Judge Bitney's posts 

reciting a Bible verse and another post regarding "advice" to 

children and grandchildren.8 Carroll also commented on two of 

Judge Bitney's posts related to his knee surgery: "Prayers on a 

healthy recovery Judge!!" and "Hope u get some rest and feel 

better as the days go on." Judge Bitney would have received a 

notification from Facebook each time Carroll reacted to one of 

 

 Whoever sows sparingly shall reap sparingly, whoever 

sows generously will reap generously. God loves a 

cheerful giver!

 Lord, may I be a doer of your word and not a hearer 

only.

 Dear Lord, restore us by the repose of sleep after our 

day's work is done so that renewed by your help I may 

serve you in body and soul through Christ our Lord. 

Amen.

 May the Gospel transform our lives that we may witness 

it to those around us. Amen

 Come to me all you who labor and are burdened, and I 

will give you rest. Matthew 11:28.

 Lord Jesus you have chosen me to be your disciple. 

Take & use what I can offer, however meager it may be 

for the greater glory of your name.

8 Carroll "loved" the following Bible verse that Judge 

Bitney posted: "Fear no one. Matthew 10:26."
No. 2017AP2132 

6

his posts.9 Judge Bitney also would have received a notification 

from Facebook each time Carroll commented on one of his posts.

¶9 In addition to "reacting" to and engaging with at 

least 20 of Judge Bitney's posts, Carroll posted on her Facebook 

page about the topic of domestic violence, which was at issue in 

the contested hearing. Carroll posted that she was "interested 

in" attending the "Stop the Silence Domestic violence awareness 

bike/car Run."10 Carroll "liked" a third-party post related to 

domestic violence and reacted "angry" to a third-party post 

entitled "Woman dies two years after being set on fire by exboyfriend." Finally, Carroll "shared" a third-party post 

related to domestic violence.11 Carroll's Facebook friends, 

including Judge Bitney, could see these "reactions" to, and 

"shares" of, third-party posts in their respective Facebook 

 

9 A Facebook user who posts content will receive a 

notification from each user who likes the post. See Olivia 

League, Whether You Like it or Not Your "Likes" are Out: An 

Analysis of Nonverbal Conduct in the Hearsay Context, 68 S.C. L. 

Rev. 939, 948 (2017); https://www.facebook.com/help/166890600000

6551?helpref=popular_topics.

10 Facebook allows a user's friends to see public events 

that a user has selected "interested in." 

See https://www.facebook.com/help/151154081619755?helpref=uf_per

malink.

11 "Sharing" a Facebook post means that it will show up on 

your friends' News Feeds and on your profile. 

See https://www.facebook.com/help/333140160100643.
No. 2017AP2132 

7

"News Feed."12 As a Facebook friend, Judge Bitney could also see 

Carroll's posts, photographs, and other information that she 

provided on her profile.13 Judge Bitney never disclosed the 

friendship, Carroll's reactions or comments to his posts, or 

Carroll's Facebook activity on his News Feed.

¶10 On July 14, 2017, Judge Bitney issued a written 

decision in favor of Carroll. In relevant part, he found that 

Carroll had shown "by the greater weight of credible evidence 

that Mr. Miller has engaged in a pattern of domestic abuse 

against . . . Carroll," which constituted a "substantial change" 

in the parties' circumstances since the 2011 stipulation.14 

Consequently, he granted Carroll sole legal custody and primary 

physical placement of Bruce, which he decided was in Bruce's 

best interest. Judge Bitney also approved Carroll's request to 

move from Rice Lake, Wisconsin to Durand, Wisconsin and ordered 

Miller to pay child support.

 

12 The News Feed is a "constantly updating list of stories 

in the middle of [the user's] home page. News Feed includes 

status updates, photos, videos, links, app activity and likes 

from people, Pages and groups."

https://www.facebook.com/help/1155510281178725.

13 See Parker v. State, 85 A.3d 682, 685 (Del. 2014) ("[A]

user will post content——which can include text, pictures, or 

videos——to that user's profile page delivering it to the 

author's subscribers.").

14 Wisconsin Stat. § 767.451(1)(b) requires a "substantial 

change of circumstances since the entry of the last order 

affecting legal custody" in order for a court to modify a 

custody or physical placement order "where the modification 

would substantially alter the time a parent may spend with his 

or her child."
No. 2017AP2132 

8

¶11 The same day that Judge Bitney issued his decision, 

the guardian ad litem (GAL) appointed to the case was alerted to 

a Facebook post that Carroll had authored regarding Judge 

Bitney's favorable ruling.15 Carroll's post read:

My boys and a [sic] I have been given a chance at 

greatness, peace, and safety.

The Honorable Judge has granted everything we 

requested. I'm overwhelmed with emotions and as 

bitter sweet as this is, we will have better from here 

on out.

. . .

I'll be bouncing off [Facebook] to focus all my 

attention on [Bruce] and helping him through these 

tough changes.

While viewing Carroll's post, the GAL inadvertently discovered 

that Carroll was Facebook friends with Judge Bitney.16 The GAL 

indicated that she "felt a duty" to immediately alert Miller's 

counsel of the Facebook friendship and Carroll's recent Facebook 

post.

¶12 Miller filed a motion for reconsideration, alleging 

that his due process right to an impartial judge was violated.17 

In denying the motion, Judge Bitney confirmed his Facebook 

friendship with Carroll, but asserted that he had no bias and 

 

15 A GAL was appointed to the case pursuant to Wis. Stat. 

§ 767.481(2)(c)3.

16 A Facebook user's "friend" list appears on her profile 

page. See Strunk v. State, 44 N.E.3d 1, 5 (Ind. Ct. App. 2015).

17 Miller did not bring a claim for judicial 

disqualification pursuant to Wis. Stat. § 757.19, or file an 

ethics complaint with the Office of Lawyer Regulation.
No. 2017AP2132 

9

that no "reasonable person in the circumstances of Mr. Miller or 

others . . . would seriously call into question the Court's 

objectivity or impartiality." Judge Bitney based his ruling on 

the fact that he "did not respond, other than to accept the 

Facebook friendship request . . . [and] did not like any posts, 

respond to any posts, or conduct any communication ex parte or 

otherwise with Ms. Carroll, other than simply accepting the 

Facebook friendship request." He further claimed that on the 

Monday he accepted Carroll's friend request he "had decided how 

[he] was going to rule, even though it hadn't been reduced to 

writing," despite the fact that the parties' briefs were only 

filed the previous Friday. Judge Bitney did not deny seeing 

Carroll's reactions, comments, or posts on Facebook. He 

admitted that the parties "presented accurately the substance of 

the interaction between Miss Carroll and the Court on Facebook." 

The record lacked any further clarification of the Facebook 

interactions between Carroll and Bitney.

¶13 Miller appealed the merits of Judge Bitney's decision 

and the denial of his motion for reconsideration. On the motion 

for reconsideration, the court of appeals concluded that Judge 

Bitney's actions "created a great risk of actual bias, resulting 

in the appearance of partiality." Miller v. Carroll, 2019 WI 

App 10, ¶2, 386 Wis. 2d 267, 925 N.W.2d 580. In reaching this 

conclusion, the court of appeals relied upon the timing of the 

Facebook friendship, the lack of disclosure of the friendship 

and Carroll's Facebook activity, ex parte communication 

concerns, and a consideration of this court's ethical rules. 
No. 2017AP2132 

10

Id., ¶¶21-27. The case was remanded for further proceedings 

before a different circuit court judge.

¶14 Carroll petitioned this court for review, which we 

granted.

II. STANDARD OF REVIEW

¶15 "The right to an impartial judge is fundamental to our 

notion of due process." State v. Goodson, 2009 WI App 107, ¶8, 

320 Wis. 2d 166, 771 N.W.2d 385; see also Caperton v. A.T. 

Massey Coal Co., 556 U.S. 868, 876 (2009) ("It is axiomatic that 

'[a] fair trial in a fair tribunal is a basic requirement of due 

process.'" (alteration in original) (quoted source omitted));

U.S Const. amends. V, XIV; Wis. Const. art. I, § 8. Whether 

Judge Bitney's partiality can reasonably be questioned is a 

matter of law that we review de novo. Goodson, 320 Wis. 2d 166, 

¶7.

¶16 We presume that a judge has acted fairly, impartially, 

and without bias. State v. Herrmann, 2015 WI 84, ¶24, 364 

Wis. 2d 336, 867 N.W.2d 772; Goodson, 320 Wis. 2d 166, ¶8. To 

overcome that presumption, the burden is on the party asserting 

judicial bias to show bias by a preponderance of the evidence. 

Herrmann, 364 Wis. 2d 336, ¶24. If a party rebuts this 

presumption and shows a due process violation, the error is 

structural and not subject to a harmless error analysis. See

Williams v. Pennsylvania, __ U.S. __, 136 S. Ct. 1899, 1909

(2016) ("[A]n unconstitutional failure to recuse constitutes 

structural error . . . .").

III. ANALYSIS
No. 2017AP2132 

11

¶17 We begin with background information on what a 

Facebook "friendship" entails. We next articulate the standard 

for resolving when the probability of actual bias rises to the 

level of a due process violation, and apply that analysis to the 

facts of this case.

A. Facebook "Friendships"

¶18 Facebook is a social media and social networking 

service with approximately 2.5 billion monthly active users.

See Press Release, Facebook, Facebook Reports Fourth Quarter and 

Full Year 2019 Results (Jan. 29, 2020). A user creates a 

Facebook profile by entering the user's name, date of birth, and 

e-mail address, and registering a password with the site. See

Smith v. State, 136 So. 3d 424, 432 (Miss. 2014). After 

creating a profile, a user establishes connections by sending 

other users a "friend" request. See Law Offices of Herssein & 

Herssein, P.A. v. United Servs. Auto Ass'n, 271 So. 3d 889, 895 

(Fla. 2018). The "friended" user must affirmatively accept the 

request for the two users to become Facebook "friends." See id. 

"Friends" have the ability to view and interact with each 

other's Facebook profiles. See State v. Eleck, 23 A.3d 818, 820 

n.1 (Conn. App. Ct. 2011).

¶19 When a Facebook user logs onto her Facebook page, she 

is automatically presented with updated activity from her

Facebook "friends" on the Facebook News Feed. See Rembrandt 

Soc. Media, LP v. Facebook Inc., 22 F. Supp. 3d 585, 590 (E.D. 

Va. 2013). The News Feed is a "constantly updating list of 

stories from people and Pages that [the User] follow[s] on 
No. 2017AP2132 

12

Facebook." Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013) 

(alterations in original) (quoted source omitted). Through this 

News Feed and access to other user's pages, Facebook allows its

users to "track friends' interests, affiliations, 'likes,' and 

general progression through life." Daniel Smith, When Everyone 

is the Judge's Pal: Facebook Friendship and the Appearance of 

Impropriety Standard, 3 Case W. Res. J.L. Tech. & Internet 66, 

97 (2012). A user can interact with Facebook friends on the 

site, including "posting and reading comments, events, news, 

and, in general, communicating with . . . others." United 

States v. Jordan, 678 Fed. Appx. 759, 761 n.1 (10th Cir. 2017)

(unpublished).

¶20 Facebook categorizes every social connection of a user 

as a "friend." "Some [Facebook users] may be friends in the 

traditional sense, but others are no more than acquaintances or 

contacts or in some cases may even be complete strangers." 

United States v. Tsarnaev, 157 F. Supp. 3d 57, 67 n.16 (D. Mass. 

2016); see also Chace v. Loisel, 170 So. 3d 802, 803 (Fla. Dist. 

Ct. App. 2014) ("The word 'friend' on Facebook is a term of 

art."). But, the Facebook user "typically knows massive amounts 

of information about each of his Facebook friends——far more than 

what he knows about the average 'real-life' acquaintance." 

Smith, supra ¶19, at 97. The accessibility of personal 

information on popular social media platforms such as Facebook 

presents unique concerns and implications regarding the 

potential for judicial bias.
No. 2017AP2132 

13

B. Judicial Bias and the Due Process Clause

¶21 "A fair trial in a fair tribunal is a basic 

requirement of due process." In re Murchison, 349 U.S. 133, 136 

(1955). We presume that a judge has acted fairly, impartially, 

and without bias. Herrmann, 364 Wis. 2d 336, ¶24. To overcome 

that presumption, the burden is on the party asserting judicial 

bias to show bias by a preponderance of the evidence. Id. In

evaluating whether a party has rebutted the presumption, 

Wisconsin courts have taken both a subjective and objective 

approach. Id., ¶26. A judge must disqualify himself from a 

case if he subjectively determines that he is unable to remain 

impartial. State v. Walberg, 109 Wis. 2d 96, 105-06, 325 

N.W.2d 867 (1982). Judge Bitney indicated that he believed 

himself to be fair and impartial, and therefore subjective bias 

is not at issue in this case. We focus on Miller's assertion 

that Judge Bitney was objectively biased due to the probability 

of actual bias.

¶22 The United States Supreme Court has established that a 

serious risk of actual bias can objectively rise to the level of 

a due process violation. See, e.g., Caperton, 556 U.S. 868. In 

Caperton, the Court reviewed its judicial bias jurisprudence and 

identified the previous instances where it had concluded, "as an 

objective matter," that recusal was required because "the 

probability of actual bias on the part of the judge or 

decisionmaker is too high to be constitutionally tolerable." 

Id. at 877. Applying existing principles to a new fact pattern, 

the Court reaffirmed that a court must assess whether "under a 
No. 2017AP2132 

14

realistic appraisal of psychological tendencies and human 

weakness,' the interest 'poses such a risk of actual bias or 

prejudgment that the practice must be forbidden if the guarantee 

of due process is to be adequately implemented." Id. at 883-84 

(quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). The Court 

defined the "risk of actual bias" as a "serious risk of actual 

bias——based on objective and reasonable perceptions" and 

clarified that "[a]pplication of the constitutional 

standard . . . will thus be confined to rare instances." Id. at 

884, 890.

¶23 Since Caperton, this court has decided one case 

involving judicial bias, Herrmann, 364 Wis. 2d 336. In 

Herrmann, the defendant claimed the circuit court's statements 

at sentencing reflected an objective bias. Id., ¶¶21-22. All 

members of the court agreed that the defendant had failed to 

rebut the presumption of impartiality and cited to Caperton. 

However, the Herrmann decision consisted of three separate 

writings, none of which garnered the vote of a majority of the 

court.

¶24 To assess whether the probability of actual bias rises 

to the level of a due process violation, we apply, verbatim, the 

standard from Caperton. We ask whether there is "a serious risk 

of actual bias——based on objective and reasonable perceptions." 

Caperton, 556 U.S. at 884. "Due process requires an objective 

inquiry" into whether the circumstances "would offer a possible 

temptation to the average . . . judge to . . . lead him not to 

hold the balance nice, clear and true." Id. at 885 (omissions 
No. 2017AP2132 

15

in original) (quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)).

We acknowledge that it is the exceptional case with "extreme 

facts" which rises to the level of a "serious risk of actual 

bias." Id. at 886-87; id. at 876 ("[M]ost matters relating to 

judicial disqualification [do] not rise to a constitutional 

level." (quoted source omitted)).

C. Application

¶25 We presume that Judge Bitney acted fairly, 

impartially, and without prejudice. See Herrmann, 364 

Wis. 2d 336, ¶24. We consider the totality of the circumstances

and conclude that Miller has rebutted this presumption by 

showing "a serious risk of actual bias." Caperton, 556 U.S. at 

884.18 These circumstances include: (1) the timing of the 

Facebook friend request and Judge Bitney's affirmative 

acceptance; (2) the volume of Carroll's Facebook activity and 

likelihood Judge Bitney viewed her posts and comments; (3) the 

content of the Facebook activity as it related to the context 

and nature of the pending proceeding; and (4) Judge Bitney's 

lack of disclosure.

¶26 We first consider the timing of the Facebook 

friendship: both when Carroll sent the friend request and when 

 

18 In her concurrence, Justice Ann Walsh Bradley advocates 

for an "appearance of bias" framework, relying on language from 

pre-Caperton court of appeals decisions, as well as her lead 

opinion in State v. Herrmann, 2015 WI 84, 364 Wis. 2d 336, 867 

N.W.2d 772. Rather than use the phrase "appearance of bias," 

this opinion relies on the exact language used by the United 

States Supreme Court in Caperton v. A.T. Massey Coal Co., 556 

U.S. 868 (2009).
No. 2017AP2132 

16

Judge Bitney affirmatively accepted it. Although Judge Bitney 

had "thousands" of Facebook friends, Carroll was not an 

established "friend." Instead, she was a current litigant who 

requested to be Judge Bitney's friend only after she testified 

at a contested evidentiary hearing in which he was the sole 

decision-maker. Judge Bitney had presided over the case since 

August of 2016; yet, Carroll friended him after he heard the 

evidence and the final briefs were submitted, but before he 

rendered a decision. The timing of the friend request implied 

that Carroll wanted to influence Judge Bitney's decision on her 

motion to modify legal custody, physical placement, and child 

support.

¶27 It is significant that Judge Bitney took the 

affirmative step of accepting Carroll's "friend request" prior 

to issuing a written decision on her motion. Sending a Facebook 

friend request does not automatically mean that the users become 

"friends." A user can decline a friend request or simply ignore

it. See Law Offices of Herssein & Herssein, 271 So. 3d at 895 

(noting that the "friended" user must affirmatively accept the 

request for the two users to become Facebook "friends"). By 

accepting Carroll's request, Judge Bitney accepted access to 

off-the-record facts that were relevant to the dispute, namely 

information regarding Carroll's character and parental fitness.19 

 

19 In an affidavit filed with the motion for 

reconsideration, Miller's sister asserted that Carroll made a 

"purposeful switch in [her] Facebook persona to support her 

position in the custody dispute," including changing her 

pictures and posts "from party type pictures and posts to family 

pictures and posts about children and family."
No. 2017AP2132 

17

Acceptance of Carroll's friend request enabled Judge Bitney to 

view Carroll's Facebook profile and see her posts, "reactions," 

comments, and "shares" on his constantly refreshing News Feed. 

Carroll's request, and Judge Bitney's acceptance, put Carroll in 

a different position than Miller and caused an improper 

asymmetry of access.

¶28 The likelihood Judge Bitney would have seen Carroll's 

Facebook activity is another important factor we consider in 

assessing whether there was a "serious risk of actual bias." 

Carroll engaged with and "reacted to" a significant number of 

Judge Bitney's Facebook posts. Carroll "liked" at least 16 of 

Judge Bitney's posts, primarily related to prayers and Bible 

verses, "loved" two other posts, and commented on two posts 

regarding his knee surgery, including sending him "prayers." 

Judge Bitney would have received a Facebook notification for 

each of Carroll's reactions and comments. See League, supra ¶8

n.9, at 948 (explaining that when a Facebook user likes another 

user's post, "the person who posted the content will get a 

notification that [the] user 'liked' his or her post" (footnotes 

omitted)). Carroll's Facebook activity also included "liking"

and "sharing" posts and articles related to domestic violence

awareness, and showing she was "interested in" an event 

promoting domestic violence awareness.

¶29 At the reconsideration hearing, Judge Bitney never 

denied seeing Carroll's reactions or comments to his posts, or 

her "shares," reactions, or "interest in" third-party posts and 

events related to domestic violence awareness, despite having an 
No. 2017AP2132 

18

opportunity to do so. Moreover, Judge Bitney was very active on 

Facebook during this time period, thus increasing the likelihood 

of him seeing Carroll's "likes," "loves," and "shares" on 

Facebook.20 The significant number of undisclosed contacts 

between Judge Bitney and Carroll in the 25 days before Judge 

Bitney rendered a decision entirely in Carroll's favor increased 

the likelihood of a serious risk of actual bias.

¶30 We further consider the context and nature of the 

pending litigation when assessing the serious risk of actual 

bias. This was a custody dispute in which Judge Bitney was the 

sole factfinder regarding the character and parental fitness of 

Miller and Carroll. His decision on the placement and custody 

of Bruce was necessarily driven by his personal evaluation of 

both parties, as their personal lives were relevant and the 

subject of extensive testimony from 15 witnesses. Carroll and 

Miller had an opportunity at the hearing to portray themselves 

in the best light. However, Carroll was provided with

additional opportunities to do this for 25 days through her 

access to Judge Bitney via Facebook.

 

20 The record does not provide conclusive evidence that 

Judge Bitney read any of Carroll's posts, but any evidence to 

the contrary is notably absent. Facebook uses an algorithm to 

determine which posts are most relevant and engaging to each 

user and then presents them at the top of the user's News Feed. 

A user will not see posts from each and every Facebook friend, 

so it is not guaranteed that Judge Bitney would have seen the 

posts by simply scrolling through his feed. The converse is 

also true; it cannot be guaranteed that Judge Bitney did not see 

Carroll's posts. See generally https://buffer.com/library/faceb

ook-news-feed-algorithm.
No. 2017AP2132 

19

¶31 The Facebook activity, including 18 "reactions" and 

two comments, was relevant to the decision-making process in a 

proceeding like this one, where Carroll's character, fitness, 

and credibility were paramount. Carroll was allowed the 

opportunity to give Judge Bitney additional information about 

herself and an extra "remember me" almost 25 different times 

during the time period when the matter was under advisement, all 

unbeknownst to Miller. By reacting to and engaging with Judge 

Bitney's posts, Carroll was effectively signaling to Judge 

Bitney that they were like-minded and, for that reason, she was 

trustworthy. She was conveying to him off-the-record 

information about her values, character, and parental fitness——

additional evidence Miller did not have the opportunity to 

rebut. Under a "realistic appraisal of psychological tendencies 

and human weaknesses," this off-the-record information about 

Carroll, created a serious risk of actual bias. Caperton, 556 

U.S. at 883 (quoted source omitted).

¶32 It is also striking that a portion of Carroll's 

Facebook activity was related to her main allegation against 

Miller at the contested hearing: domestic violence. Carroll 

"shared" third-party posts related to domestic violence, 

"reacted" to articles about the effects of domestic violence,21

and showed herself as "interested in" a domestic violence 

 

21 Had Carroll sent Judge Bitney a letter containing a 

domestic violence article, which he then read, he undoubtedly 

would have had to disclose that information to the parties. 

Carroll fails to distinguish that situation from the case at 

hand.
No. 2017AP2132 

20

awareness event. Allegations of domestic violence formed the 

basis for Carroll's motion to modify child custody and 

placement, and a finding of domestic violence formed the basis 

for Judge Bitney's decision. Carroll's Facebook activity 

supported her allegation that Miller had committed domestic 

violence against her and that she should therefore be awarded 

custody. But unlike the information presented at the hearing, 

Miller was unaware that Judge Bitney had access to this off-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 
No. 2017AP2132 

21

conduct commission to determine if further steps were required. 

Id.

¶34 Unlike in Youkers, where the judge took affirmative 

steps following the communications, Judge Bitney failed to 

disclose the friendship and the subsequent communications.22 

Judge Bitney could have initially ignored or denied Carroll's 

friend request and disclosed the request to the parties. He 

could have also disclosed the Facebook friendship when he 

received notification of Carroll's reactions to his posts, 

unfriended Carroll on Facebook, or changed his security settings 

to hide her posts from appearing on his News Feed.23 Instead, 

Judge Bitney failed to disclose the friendship or other Facebook 

activity, and the friendship was discovered only after Judge 

 

22 Judges should be cautious when using social media and 

appreciate the risk of ex parte communications being sent 

through social media sites. According to Black's Law 

Dictionary, an "ex parte communication" is a "communication 

between counsel or a party and the court when opposing counsel 

or party is not present." Ex parte communication, Black's Law 

Dictionary 337 (10th ed. 2014). The court of appeals concluded 

that "[t]he Facebook connection between Carroll and Judge Bitney 

involved ex parte communications" because Carroll sent, and 

Judge Bitney accepted, the Facebook friend request without 

Miller's knowledge. Miller, 386 Wis. 2d 267, ¶24. Further, the 

court noted that "ex parte communication occurred to the extent 

Judge Bitney and Carroll viewed each other's Facebook posts." 

Id. Although we do not explicitly focus on "ex parte 

communication concerns" as one of the factors in our analysis, 

see id., ¶¶24-26, we do consider the undisclosed nature of the 

communications as an important factor in assessing the serious 

risk of actual bias.

23 Facebook allows its users to control what content appears 

on their respective News Feed. See

https://www.facebook.com/help/964154640320617/?helpref=hc_fnav
No. 2017AP2132 

22

Bitney issued his decision. Because of Judge Bitney's lack of 

any means of disclosure, Miller was unable to review the 

interactions between Judge Bitney and Carroll and have an 

opportunity to refute what Judge Bitney might have seen Carroll 

post or share.

¶35 The totality of the circumstances and the extreme 

facts of this case, viewed objectively, rise to the level of a 

serious risk of actual bias, which rebuts the presumption of 

Judge Bitney's impartiality. The serious risk of actual bias is 

a structural error, which is "different from regular trial 

errors because they 'are structural defects in the constitution 

of the trial mechanism, which defy analysis by "harmless-error"

standards.'" State v. Pinno, 2014 WI 74, ¶49, 356 Wis. 2d 106, 

850 N.W.2d 207 (quoted source omitted). Accordingly, this 

matter must be reversed to proceed before a different circuit 

court judge since it is difficult to determine "how the error 

affected the trial."24 Id.; see also Williams, 136 S. Ct. at 

1909 ("The Court has little trouble concluding that a due 

process violation arising from the participation of an 

interested judge is a defect 'not amenable' to harmless-error 

review, regardless of whether the judge's vote was dispositive." 

(quoting Puckett v. United States, 556 U.S. 129, 141 (2009))); 

see also Pinno, 356 Wis. 2d 106, ¶50 (noting that a "biased 

judge" is a structural error).

 

24 We need not reach the merits of Judge Bitney's 

determination as it relates to legal custody, physical 

placement, and child support.
No. 2017AP2132 

23

IV. CONCLUSION

¶36 We conclude that the extreme facts of this case rebut 

the presumption of judicial impartiality and establish a due 

process violation. Accordingly, we affirm the court of appeals.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2017AP2132.awb

1

¶37 ANN WALSH BRADLEY, J. (concurring). In a unanimous 

opinion, the court of appeals concluded that "the circuit 

court's undisclosed [electronic social media] connection with a 

current litigant in this case created a great risk of actual 

bias, resulting in the appearance of partiality. Accordingly, 

Miller has demonstrated the judge was objectively biased." 

Miller v. Carroll, 2019 WI App 10, ¶2, 386 Wis. 2d 267, 925 

N.W.2d 580. I agree.

¶38 Although I join the majority 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, Carroll, gave rise to the appearance of 

partiality. Differentiating between subjective and objective 

bias, Judge Bitney opined that he was not subjectively biased 

and that the facts here did not support a conclusion that he was 

objectively biased. Id., ¶11. 

 

1 I join the majority opinion with the exception of footnote 

18.

2 See Wis. Stat. §§ 805.17(3), 806.07.
No. 2017AP2132.awb

2

¶40 The analysis in this case is best understood in light 

of a short preface detailing the development of the case law in 

this area. In determining whether a defendant's due process 

right to trial by an impartial and unbiased 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 that "the appearance of bias offends 

constitutional due process principles whenever a reasonable 

person——taking into consideration human psychological tendencies 

and weaknesses——concludes that the average judge could not be 

trusted to 'hold the balance nice, clear and true' under all the 

 

3 Although I use the term "judge," such term encompasses 

municipal court judges, circuit court judges, judges of the 

court of appeals, and justices of this court.
No. 2017AP2132.awb

3

circumstances." Id., ¶24. Further, the court emphasized that 

the appearance of bias is to be examined "based on what a 

reasonable person would conclude[,] . . . not what a reasonable 

trial judge, a reasonable appellate judge, or even a reasonable 

legal practitioner would conclude." Id., ¶26. Importantly, 

these statements recognize that the right to an impartial 

decisionmaker encompasses the appearance of bias and not simply 

the absence of actual bias.

¶43 Less than a month after the court of appeals applied 

the above-cited Gudgeon framework in Goodson, 320 Wis. 2d 166, 

the United States Supreme Court issued its opinion in Caperton, 

556 U.S. 868. The Caperton court determined that actual bias 

need not be shown to establish a violation of a party's right to 

a fair tribunal, reaffirming its previous declaration that "to 

perform its high function in the best way 'justice must satisfy 

the appearance of justice.'" In re Murchison, 349 U.S. 133, 136 

(1955) (quoting Offutt v. United States, 348 U.S. 11, 14 

(1954)). 

¶44 The Caperton court embraced a "probability of actual 

bias" standard ("the probability of actual bias on the part of 

the judge or decisionmaker is too high to be constitutionally 

tolerable"). Caperton, 556 U.S. at 877 (quoting Withrow v. 

Larkin, 421 U.S. 35, 47 (1975)). Ultimately, it set forth the 

essential inquiry into judicial bias, when there is no actual 

bias, as whether there is "a serious risk of actual bias——based 

on objective and reasonable perceptions . . . ." Caperton, 556 

U.S. at 884 (emphasis added). 
No. 2017AP2132.awb

4

¶45 Indeed, the Caperton court specified that it was not 

addressing whether there was actual bias present:

We do not question his subjective findings of 

impartiality and propriety. Nor do we determine 

whether there was actual bias. . . .

[T]he Due Process Clause has been implemented by 

objective standards that do not require proof of 

actual bias. In defining these standards the Court 

has asked whether, "under a realistic appraisal of 

psychological tendencies and human weakness," the 

interest "poses such a risk of actual bias or 

prejudgment that the practice must be forbidden if the 

guarantee of due process is to be adequately 

implemented."

Caperton, 556 U.S. at 882-84 (quoting Withrow, 421 U.S. at 47). 

It further made clear that "[d]ue process 'may sometimes bar 

trial by judges who have no actual bias and who would do their 

very best to weigh the scales of justice equally between 

contending parties.'" Id. at 886 (quoting Murchison, 349 U.S. 

at 136).

¶46 If under Caperton, something less than actual bias can 

be held to violate due process, then what is it?

¶47 The Caperton court relied upon basic principles from 

its precedent to inform the discussion. It employed terms such 

as "probability" and "perception" in framing a standard and 

inquiry. Scholars and commentators differ on what role the 

Murchison "appearance of bias" plays in the Caperton due process 

analysis. See, e.g., Comments, Caperton v. A.T. Massey Coal 

Co.: Due Process Limitations on the Appearance of Judicial 

Bias, 123 Harv. L. Rev. 73, 78-79 (2009) (collecting three 

disparate views).
No. 2017AP2132.awb

5

¶48 Some insight can be gleaned from a review of the 

transcript of the oral argument in Caperton. Two of the 

justices in the five justice majority opinion indicated that 

they viewed standards set by prior cases——"appearance of bias"

and "probability of bias"——as synonymous. So do I. To the mix, 

the Caperton opinion added the synonymous term "perception."

¶49 At oral argument, Justice Ginsburg commented that past 

cases used the terms "appearance [of bias]," "probability of 

bias," and "likelihood of bias" interchangeably. Referring to 

one of those past cases she stated:

I think of Justice Marshall's decision in Peters and 

Kiff, involving a grand jury, and he said that due 

process is denied in circumstances creating the 

likelihood or the appearance of bias. And there are 

other decisions, too, that use those terms 

interchangeably. So I don't know that probability of 

bias, likelihood of bias, appearance——that——those seem 

to me synonyms. 

Transcript of Oral Argument at 34-35, Caperton, 556 U.S. 868 

(No. 08-22).4 

¶50 In response to counsel's answer that appearance of 

bias was not part of the due process inquiry, Justice Stevens 

responded, "You don't think the community's confidence in the 

way judges behave is an important part of due process?" Id. at 

36. Justice Kennedy subsequently interjected, "But our whole 

system is designed to ensure confidence in our judgments." Id.

at 37. 

 

4 See Peters v. Kiff, 407 U.S. 493, 502 (1972) ("Moreover, 

even if there is no showing of actual bias in the tribunal, this 

Court has held that due process is denied by circumstances that 

create the likelihood or the appearance of bias.").
No. 2017AP2132.awb

6

¶51 The upshot of the analysis is that when appearance of 

bias is part of a due process challenge, it comes with an 

exacting standard. A defendant may rebut the presumption of 

impartiality by demonstrating that the appearance of bias 

reveals a serious risk of actual bias. Caperton, 556 U.S. at 

884-85; Goodson, 320 Wis. 2d 166, ¶14; Gudgeon, 295 Wis. 2d 189, 

¶23.5 This "appearance of bias" framework has been reliably 

applied in the courts of this state. See, e.g., State v. Dylan 

S., 2012 WI App 25, ¶30, 339 Wis. 2d 442, 813 N.W.2d 229; State 

v. Marcotte, 2020 WI App 28, ¶17, __ 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 of actual bias. Majority op., ¶24 (citing 

Caperton, 556 U.S. at 876, 886-87). As the Caperton court 

further observed, because almost every state has a code of 

conduct with more rigorous recusal standards than due process 

requires, most recusal disputes will be resolved without resort 

to the Constitution, making the constitutional standard's 

application rare. 

"The Due Process Clause demarks only the outer 

boundaries of judicial disqualifications. Congress 

and the states, of course, remain free to impose more 

rigorous standards for judicial disqualification than 

those we find mandated here today." Because the codes 

of judicial conduct provide more protection than due 

process requires, most disputes over disqualification 

will be resolved without resort to the Constitution. 

 

5 See also State v. Herrmann, 2015 WI 84, ¶3, 364 

Wis. 2d 336, 867 N.W.2d 772 (Ann Walsh Bradley, J., lead op.). 
No. 2017AP2132.awb

7

Application of the constitutional standard implicated 

in this case will thus be confined to rare instances.

Caperton, 556 U.S. at 889-90 (quoting Aetna Life Ins. Co. v. 

Lavoie, 475 U.S. 813, 828 (1986)).

II

¶53 As the present case demonstrates, review is available 

to a litigant who advances a due process challenge when a judge 

decides to remain on a case after a motion for recusal. This is 

a subject with which this court has some familiarity. See State 

v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863 (per 

curiam); State v. Henley, 2011 WI 67, 338 Wis. 2d 610, 802 

N.W.2d 175 (per curiam).

¶54 In furtherance of the "rest of the story" referenced 

above, I observe that the majority opinion here is at odds with

Henley, 338 Wis. 2d 610. In Henley, the majority determined 

that when this court is faced with a motion to disqualify a 

single justice from a case, it is powerless to overturn that 

justice's determination: "determining whether to recuse is the 

sole responsibility of the individual justice for whom 

disqualification from participation is sought . . . ." Id., 

¶39. 

¶55 The majority in Henley made this determination without 

benefit of briefs or argument on the issue. Claiming a 

powerlessness to act, the majority in essence treated the due 

process claim challenging the participation of a justice as 

nonjusticiable. Thus, Henley's circle-the-wagons response

cannot peacefully coexist with the majority's due process 

analysis.
No. 2017AP2132.awb

8

¶56 Although, as here, a judge against whom bias is 

asserted may determine that no bias exists, reviewing courts, at 

whatever level, still have a role to play. When called upon to 

review an asserted due process violation for the failure to 

recuse, a reviewing court objectively determines whether the 

failure to recuse is consistent with due process principles.

¶57 Caperton announced the need for objective review of 

recusal challenges, regardless of the level of the court.

Indeed, the Caperton court, which involved a review of the 

recusal decision of a justice on the West Virginia Supreme 

Court, declared:

[O]bjective standards may also require recusal whether 

or not actual bias exists or can be proved. Due 

process "may sometimes bar trial by judges who have no 

actual bias and who would do their very best to weigh 

the scales of justice equally between contending 

parties." The failure to consider objective standards 

requiring recusal is not consistent with the 

imperatives of due process.

Caperton, 556 U.S. at 886 (quoting Murchison, 349 U.S. at 136).

¶58 The majority opinion in the present case follows 

Caperton, and explicitly adopts the "objective inquiry" it 

mandates in a due process analysis addressing the failure to 

recuse. Majority op., ¶24. It is thus fundamentally 

inconsistent with the approach taken by the Henley majority. 

The Henley court ignored the Caperton mandate referenced above 

that "[t]he failure to consider objective standards requiring 

recusal is not consistent with the imperatives of due process." 

Caperton, 556 U.S. at 886. 
No. 2017AP2132.awb

9

¶59 When the motion for recusal is made only to the judge 

against whom bias is asserted, and no review is requested, then 

Henley gets it half right: the decision regarding recusal 

begins and ends with the decision of that judge. But when a 

court is called upon to review a recusal decision, whether by 

appellate review or motion to this court, such a determination 

is no longer solely up to the judge against whom bias is 

asserted. 

¶60 If a constitutional due process challenge is asserted, 

it is up to the reviewing court to address the issue. Any 

language to the contrary does not pass constitutional muster as 

framed by Caperton and should be withdrawn. See also Polsky v. 

Virnich, 2011 WI 69, ¶4, 335 Wis. 2d 555, 804 N.W.2d 80 (per 

curiam) (opining that "this court does not have the power to 

remove a justice from participating in an individual proceeding, 

on a case-by-case basis" and that "due process is provided by 

the decisions of the individual justices who decide to 

participate in the cases presented to the court"); Wis. S. Ct. 

IOP III.L.1 (Sept. 12, 2019) ("The decision of a justice to 

recuse or disqualify himself or herself is that of the justice 

alone.").

¶61 It would be incongruous for the Caperton due process 

standard to apply to our review of a circuit court or court of 

appeals judge's determination to recuse, yet leave the decision 

to a single justice's determination when such a due process 

issue is presented in this court. Due process is due process. 

The right to a fair tribunal exists no matter the level of the 
No. 2017AP2132.awb

10

court. As uncomfortable as it may be, our internal operating 

procedure cited above does not take precedence over the United 

States Supreme Court's statements in Caperton.

¶62 What is at stake is nothing less than the 

institutional legitimacy of our courts:

Appearances matter because the judiciary's reputation 

is essential to its institutional legitimacy——that is, 

to the public's respect for and willingness to abide 

by judicial decisionmaking. Indeed, scholars of the 

federal court system suggest that the public's 

perception of the judiciary's independence and 

integrity is the primary source of its legitimacy, and 

ultimately its power.

Amanda Frost, Keeping Up Appearances: A Process-Oriented 

Approach to Judicial Recusal, 53 U. Kan. L. Rev. 531, 532 

(2005); see also Williams-Yulee v. Florida Bar, 575 U.S. 433, 

445 (2015) (explaining that the United States Supreme Court has 

"recognized the vital state interest in safeguarding public 

confidence in the fairness and integrity of the nation's elected 

judges") (internal quotations omitted).6

¶63 In sum, I write separately to call attention to the 

critical role the appearance of bias can play in the due process 

analysis. I further write to address the impact of the present 

case on recusal practice in this court and statewide.

 

6 See also Siefert v. Alexander, 608 F.3d 974, 985 (7th Cir. 

2010) ("Due process requires both fairness and the appearance of 

fairness in the tribunal."); Martin H. Redish & Lawrence C. 

Marshall, Adjudicatory Independence and the Values of Procedural 

Due Process, 95 Yale L.J. 455, 484 (1986) ("Indeed, if there 

exists any reasonable doubt about the adjudicator's impartiality 

at the outset of a case, provision of the most elaborate 

procedural safeguards will not avail to create [the] appearance 

of justice.").
No. 2017AP2132.awb

11

¶64 For the foregoing reasons, I respectfully concur.
No. 2017AP2132.akz

1

¶65 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join 

the majority because it does not adopt the standard suggested in 

Justice Ann Walsh Bradley's concurrence. Rather, the majority 

opinion is consistent with the language of the United States 

Supreme Court in Caperton, my writing (joined by two other 

justices) in Herrmann, and my writing in Allen. See Caperton v. 

A.T. Massey Coal Co., 556 U.S. 868 (2009); State v. Herrmann, 

2015 WI 84, ¶¶112-62, 364 Wis. 2d 336, 867 N.W.2d 772 (Ziegler, 

J., concurring); and State v. Allen, 2010 WI 10, ¶¶259-72, 322 

Wis. 2d 372, 778 N.W.2d 863 (Ziegler, J., concurring). Here, 

"the extreme facts of this case rebut the presumption of 

judicial impartiality and establish a due process violation." 

Majority op., ¶36. I conclude, consistently with Caperton, that

there is a serious risk that Judge Bitney was actually biased, 

in violation of the Due Process Clause.1 

¶66 I also agree with much of Justice Hagedorn's writing 

(see dissent, ¶¶104-127) because recusal must not be used as a 

strategic weapon to judge-shop. I write separately to again 

 

1 In her concurrence, Justice Ann Walsh Bradley advocates 

for a different standard from the one in the majority opinion; a 

different standard from the one announced in Caperton v. A.T. 

Massey Coal Co., 556 U.S. 868 (2009). She advocates for an 

appearance of bias standard. To be clear, I join the majority 

opinion only because it specifically disavows that standard and 

adopts the precise standard set forth by the Supreme Court in 

Caperton——a serious risk of actual bias. See majority op., ¶25 

n.18.

Justice Ann Walsh Bradley also apparently invites future 

litigants to challenge our decision in State v. Henley, 2011 

WI 67, 338 Wis. 2d 610, 802 N.W.2d 175. The parties did not 

brief or argue that Henley is inconsistent with Caperton. In 

this case, that assertion comes from Justice Ann Walsh Bradley 

alone.
No. 2017AP2132.akz

2

emphasize that Caperton due process violations are rare and 

limited to the most extraordinary and extreme cases. But the 

facts presented here are indeed extraordinary. To be clear, our 

decision in this case is not an expansion of Caperton, but, 

rather, a faithful application of it to the facts of this case——

which, in many ways, are even more extreme than those of 

Caperton itself. 

¶67 I also write separately, in light of this case, to 

caution the Wisconsin bench about the hazards of electronic 

social media, and Facebook in particular. I caution judges to 

avoid using social media such as Facebook unless significant 

safeguards are in place to avoid a situation like that present 

here. If a judge chooses to participate in social media, then 

additional——not fewer——precautions must be taken. An appearance 

of impropriety is not itself sufficient to constitute a due 

process violation. But more is present here. As a result, I 

respectfully concur.

I. ANALYSIS

A. Due Process And Caperton

¶68 Whether due process requires a judge's recusal is a 

question of law this court reviews de novo. State v. Pinno, 

2014 WI 74, ¶39, 356 Wis. 2d 106, 850 N.W.2d 207. "A fair trial 

in a fair tribunal is a basic requirement of due process." In 

re Murchison, 349 U.S. 133, 136 (1955). An impartial judge is 

crucial to a fair trial and, therefore, "'[d]ue process requires 

a neutral and detached judge.'" State v. Rochelt, 165 

Wis. 2d 373, 378, 477 N.W.2d 659 (Ct. App. 1991) (quoting State 
No. 2017AP2132.akz

3

v. Washington, 83 Wis. 2d 808, 833, 266 N.W.2d 597 (1978)). "We 

presume that judges are impartial," neutral, and detached, and 

the burden is on the party challenging that presumption to rebut 

it. Pinno, 356 Wis. 2d 106, ¶103.

¶69 In Caperton, the Supreme Court concluded that a 

judge's failure to recuse violates due process if there is 

"objective proof of actual bias" or "a serious risk of actual 

bias." Herrmann, 364 Wis. 2d 336, ¶158 (Ziegler, J., 

concurring) (citing Caperton, 556 U.S. at 883-84). A mere 

appearance or allegation of bias alone will not rebut the 

presumption that a judge is impartial and will not constitute a 

due process violation.2 Id., ¶160. Rather, under Caperton, the 

standard is whether 

a reasonable, well-informed person, knowledgeable 

about judicial ethical standards and the justice 

system and aware of the facts and circumstances the 

judge knows or reasonably should know, would 

reasonably question the judge's ability to be 

impartial because of actual bias or the probability of 

a serious risk of actual bias. Such circumstances are 

exceedingly rare.

Id. The Supreme Court addressed one such rare and extraordinary 

set of circumstances in Caperton, 556 U.S. 868.

¶70 I have previously summarized the facts of that case:

The "extreme facts" that amounted to a due 

process violation in Caperton began with a $50 million 

jury verdict that was entered in favor of Caperton and 

against A.T. Massey. Caperton, 556 U.S. at 872. 

 

2 An appearance of impropriety, while perhaps disqualifying 

by rule (as I discuss below), is not the standard we apply in a 

due process analysis under Caperton, 556 U.S. 868. It is rare 

indeed that we would determine that a judge who has determined 

they can sit on a case, should not have.
No. 2017AP2132.akz

4

"After the verdict but before the appeal, West 

Virginia held its 2004 judicial elections." Id. at 

873. Five justices sit on the West Virginia Supreme 

Court of Appeals. Id. at 874–75. Whoever won the 

West Virginia Supreme Court of Appeals' 2004 election 

would most certainly be on the court when it decided 

whether to sustain or overturn this $50 million 

verdict against A.T. Massey. Id. at 873.

Donald Blankenship, who was A.T. Massey's 

chairman, chief executive officer, and president, 

"[knew] that the Supreme Court of Appeals of West 

Virginia would consider the appeal in the case." Id.

Blankenship spent $3 million to support the election 

of Brent Benjamin, an attorney who was running against 

Justice Warren McGraw for a seat on the West Virginia 

Supreme Court of Appeals. Id. . . .

Blankenship's $3 million of expenditures 

supporting the election of Benjamin, who if elected 

would be on the West Virginia Supreme Court of Appeals 

when it decided the pending case involving 

Blankenship's company, dwarfed all other spending in 

the election. . . . Id. . . .

In addition, the United States Supreme Court 

noted that the election results were not a landslide 

victory. Id. A total of 716,337 people voted in the 

West Virginia Supreme Court of Appeals race. See id.

Benjamin was elected with a narrow margin of 53.3% of 

the votes. Id. Benjamin defeated his opponent by 

fewer than 50,000 votes (Benjamin received 382,036 

votes and Justice McGraw received 334,301). Id.

Approximately 11 months after Justice Benjamin 

won the election, and shortly before A.T. Massey filed 

its petition for appeal, Caperton moved to disqualify 

Justice Benjamin in the particular case that was 

pending the entire election between A.T. Massey and

Caperton. Id. at 873–74. Caperton argued that the 

due process clause required Justice Benjamin's recusal 

"based on the conflict caused by Blankenship's 

campaign involvement." Id. at 874. Justice Benjamin 

denied the recusal motion. Id. The West Virginia 

Supreme Court of Appeals, by a 3–to–2 vote, reversed 

the $50 million verdict against A.T. Massey. Id.

Justice Benjamin joined the majority opinion. Id.
No. 2017AP2132.akz

5

"Caperton sought rehearing, and the parties moved 

for disqualification of three of the five justices who 

decided the appeal." Id. In particular, Caperton 

again moved to disqualify Justice Benjamin. Id. at 

875. Justice Benjamin denied the motion. Id.

Justice Elliot Maynard, who joined the three-justice 

majority opinion, granted Caperton's recusal motion 

because "[p]hotos had surfaced of Justice Maynard 

vacationing with Blankenship in the French Riviera 

while the case was pending." Id. at 874. Justice 

Larry Starcher, one of the two dissenting justices, 

"granted [A.T.] Massey's recusal motion, apparently 

based on his public criticism of Blankenship's role in 

the 2004 elections." Id. at 874–75. The West 

Virginia Supreme Court of Appeals subsequently granted 

rehearing. Id. at 875. Justice Benjamin, then 

serving as acting chief justice, selected two West 

Virginia circuit judges to replace the two recused 

justices on the case between Caperton and A.T. Massey. 

Id. . . . The West Virginia Supreme Court of Appeals 

again voted 3–to–2 to reverse the $50 million verdict 

against A.T. Massey. Id. at 875. Justice Benjamin 

again joined the majority. Id. Caperton petitioned 

the United States Supreme Court to review Justice 

Benjamin's denial of its recusal motions.

The United States Supreme Court granted 

certiorari to determine "whether the Due Process 

Clause of the Fourteenth Amendment was violated when 

[Justice Benjamin] denied a recusal motion." Id. at 

872. The Supreme Court determined "that, in all the 

circumstances of [that] case, due process require[d] 

recusal." Id.

The United States Supreme Court concluded that 

there was a serious risk of Justice Benjamin's actual 

bias in sitting on Caperton because: (1) the case had 

been pending since before Justice Benjamin was 

elected; (2) the jury verdict in that case was $50 

million; (3) if elected, Justice Benjamin would be 

sitting on the court that would review this $50 

million verdict; (4) Blankenship's extraordinary $3 

million expenditures supporting Benjamin dwarfed the 

amount spent by both campaign committees combined; (5) 

Blankenship's $3 million expenditures exceeded the 

expenditures of all other Benjamin supporters 

combined; and (6) Blankenship's $3 million 

expenditures had a "significant and disproportionate 

influence" in helping Benjamin win a close election. 
No. 2017AP2132.akz

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See Caperton, 556 U.S. at 883–86. The Supreme Court 

emphasized that "[t]he temporal relationship between 

the campaign contributions, the justice's election, 

and the pendency of the case [was] also critical." 

Id. at 886.

Herrmann, 364 Wis. 2d 336, ¶¶129-36 (Ziegler, J., concurring); 

see also Allen, 322 Wis. 2d 372, ¶¶263-69 (Ziegler, J., 

concurring). I note that the extreme facts of Caperton largely 

centered around Blankenship's conduct as a party to the 

litigation, not that of the judge.

¶71 "'[N]owhere in Caperton does the majority state that 

anything less than this "perfect storm," created by those 

extreme and extraordinary facts coupled with the timing of the 

election and the parties' pending case, would be sufficient to 

constitute a due process violation.'" Herrmann, 364 

Wis. 2d 336, ¶138 (Ziegler, J., concurring) (quoting Allen, 322 

Wis. 2d 372, ¶269 (Ziegler, J., concurring)).

¶72 Here, this case has nothing to do with campaign 

spending or a requested recusal based upon a financial interest 

in any respect. Rather, this case involves a judge's choice to 

create a Facebook account and to personally and affirmatively 

accept and maintain a Facebook friendship with a litigant, 

during a pending proceeding, giving that litigant the 

opportunity to communicate with the judge, and without any 

safeguards to ensure the integrity of the pending proceeding. 

In this case, the judge made the Facebook account——the judge 

chose to allow that exposure. The judge personally managed the 

account and failed to protect against litigants influencing the 

judge through communications on Facebook. Unsurprisingly, the 
No. 2017AP2132.akz

7

litigant seized upon that opportunity by trying to correspond 

with and influence the judge through the unprotected Facebook 

account created, maintained, and monitored by the judge.3 Here, 

it is this objectively demonstrated attempt by a litigant to 

influence a judge through that judge's Facebook account during a 

pending proceeding that is at issue. Furthermore, while not 

required here, the judge decided to hold a hearing on the motion 

for recusal and render a decision on the record. The record 

supporting the motion is ample, but the decision denying the 

motion for recusal is exceedingly lean. See infra, ¶¶15-17.

¶73 As I explain below, we have nothing less than a 

"perfect storm" of "extreme and extraordinary facts" here. 

Herrmann, 364 Wis. 2d 336, ¶138 (Ziegler, J., concurring) 

(quoting Allen, 322 Wis. 2d 372, ¶269 (Ziegler, J., 

concurring)). The majority opinion aptly summarizes those 

facts, and I will assume the reader's familiarity with them. 

See majority op., ¶¶6-12. But I will describe some of the facts 

of this case separately to demonstrate that they are not only 

analogous to those in Caperton, but, in some aspects, even more 

extreme and extraordinary.

B. Caperton And This Case

¶74 Here, a judge affirmatively created a Facebook 

account; instead of making it private, he made it available to 

the public; he accepted a party as a "friend" during pending 

litigation in which the judge was the sole decision-maker and 

 

3 Judges may of course wish to have a social media account 

for campaign purposes, but those are often monitored by a 

campaign and need not necessarily exist beyond the campaign.
No. 2017AP2132.akz

8

fact-finder; and, he had no safeguards in place to avoid 

inappropriate communication with the party. While Judge Bitney 

could have done any number of things differently, he set himself 

up for a Caperton violation by allowing Carroll to engage in 

activity that indeed met the Caperton standard. Unbeknownst to 

the other litigant (Miller), Carroll was objectively attempting 

to influence Judge Bitney during pending litigation. Carroll 

had this opportunity because of Judge Bitney's creation of, 

personal management of, and activity in his Facebook account, 

which lacked safeguards to protect against a party's influence 

during pending litigation. It is the convergence of the judge's 

unprotected Facebook account, to which he gave asymmetric access 

to one party, unbeknownst to the other, to communicate with the 

judge on relevant issues, during pending and highly contested 

litigation, in which the judge was the sole decision-maker, that 

causes the violation in this case. The facts of this case are 

in many ways even more connected, direct, extreme, and 

extraordinary than those in Caperton, where a third party 

monetarily and openly supported a judge in an election believing 

that the judge would eventually, if elected, rule on that 

party's case that was proceeding through the appellate process.

¶75 In 2009, in Caperton, the Supreme Court took special 

note of the timing of the election and Blankenship's support of 

Justice Benjamin, knowing that, if he won the election, he would 

be a judge on A.T. Massey's case on appeal. See Caperton, 556 

U.S. at 873 (noting, "[a]fter the verdict but before the appeal, 

West Virginia held its 2004 judicial elections. Knowing the 
No. 2017AP2132.akz

9

Supreme Court of Appeals of West Virginia would consider the 

appeal in the case, Blankenship decided to support an attorney 

who sought to replace Justice McGraw") (emphasis added). The 

Supreme Court stated, "The temporal relationship between the 

campaign contributions, the justice's election, and the pendency 

of the case is . . . critical. It was reasonably foreseeable, 

when the campaign contributions were made, that the pending case 

would be before the newly elected justice." Id. at 886. Hence, 

the fact that there was a pending case that would be before the 

judge was of great significance. 

¶76 In this case, Carroll's friendship request, Judge 

Bitney's personal and affirmative acceptance of it, and the many 

Facebook activities thereafter occurred during the pendency of 

this litigation before Judge Bitney. In the 25 days between 

Judge Bitney's acceptance of Carroll's Facebook friendship and 

his final decision, Carroll reacted to or commented on Judge 

Bitney's Facebook posts at least 20 times. Those interactions 

included information relevant to the issues to be decided——

Carroll's credibility, character, and parental fitness. In that 

same 25-day period, Carroll also posted on her Facebook account 

about domestic violence, showed that she was "interested in" 

attending a domestic violence-related event, and reacted to or 

shared other third-party content related to domestic violence, 

an issue which was highly relevant to the custody dispute. Even 

worse, all this occurred after a highly contested hearing, but 

before Judge Bitney issued his final decision. Carroll 

requested, and Judge Bitney personally and affirmatively 
No. 2017AP2132.akz

10

accepted, ex parte access to him during the drafting of his 

decision. Carroll offered, and Judge Bitney personally and 

affirmatively accepted, access to off-record facts relevant to 

the litigation during the time when he was deciding whether she 

was the more fit parent.

¶77 Here, the timing of the conduct is even more direct 

than in Caperton. In Caperton, there was a "temporal 

relationship" between the court's decision and the campaign 

support because Blankenship's campaign support occurred before 

the case came to the West Virginia Supreme Court of Appeals. 

556 U.S. at 886. Here, unlike Caperton, the Facebook friendship 

and the judge's decision were not just temporally related. They 

occurred at the same time. The commencement of the friendship 

and the many Facebook communications occurred during the 

decision-making phase of the proceedings where the judge, not a 

jury, was the sole decision-maker. In Caperton, the Supreme 

Court concluded that at the time of Blankenship's campaign 

support, it was "reasonably foreseeable" that Justice Benjamin 

would hear the case if he won the election. Id. Here, Judge 

Bitney was currently presiding over the case; he had yet to 

render his decision in a pending, highly contested case. The 

Facebook communications were directly related to Carroll's 

credibility as a witness and fitness as a parent. Moreover, the 

content of the Facebook communications was objectively poised to 

evidence to the judge that one party, Carroll, had the same 

values and beliefs as the judge and was, therefore, the better 

parent. Thus, the timing of the conduct in this case is even 
No. 2017AP2132.akz

11

more extraordinary than in Caperton, as it was not just a 

probability, but a certainty, that Judge Bitney would hear 

Carroll's case; indeed, he was currently presiding over and 

deciding it. Carroll and Judge Bitney became Facebook friends 

and Carroll communicated with Judge Bitney on Facebook during 

the exact same time period when he was deciding her highly 

contested child custody case.

¶78 In Caperton, the parties and the public at large were 

all well aware of Blankenship's attempt to influence the 

election. Unlike here, where Miller knew nothing of Carroll's 

actions, Caperton knew all along that A.T. Massey and 

Blankenship were attempting to influence the outcome of the 

appeal by supporting Justice Benjamin's candidacy. See

Caperton, 556 U.S. at 873-74 (stating, "[B]efore [A.T.] Massey 

filed its petition for appeal in West Virginia's highest court, 

Caperton moved to disqualify now-Justice Benjamin . . . based on 

the conflict caused by Blankenship's campaign involvement"). 

Blankenship's campaign support was public knowledge. But in 

this case, Judge Bitney gave Carroll an opportunity to 

communicate with him and try to influence him through their 

Facebook friendship while the other party, Miller, had no 

knowledge at all. The fact that Judge Bitney allowed Carroll to 

be in a position to objectively influence him, and she seized 

that opportunity, unbeknownst to Miller until after Judge Bitney 

issued his decision, is a fact even more extraordinary than 

Caperton.
No. 2017AP2132.akz

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¶79 Furthermore, in Caperton, there was a full record of 

the controversy and Justice Benjamin thoroughly considered and 

analyzed his ability to remain impartial. The Supreme Court 

noted, "Justice Benjamin was careful to address the recusal 

motions and explain his reasons why, on his view of the 

controlling standard, disqualification was not in order. In 

four separate opinions issued during the course of the appeal, 

he explained why no actual bias had been established." 

Caperton, 556 U.S. at 882. "In other words, based on the facts 

presented by Caperton, Justice Benjamin conducted a probing 

search into his actual motives and inclinations" and made a 

thorough record. Id. In this case, the same cannot be said of 

Judge Bitney. Here, the record is lean at best. While there is 

objective evidence of communication from one party to the judge 

over and over at the same time the judge was deciding the case, 

there is hardly anything in the record to refute it or 

demonstrate that the contact was of no moment.

¶80 Judge Bitney did rule on Miller's motion for recusal, 

but the ruling is exceedingly lean in light of what appears to 

be ex parte communication. Judge Bitney could have denied 

seeing Carroll's various reactions to and comments on his 

Facebook posts. But he did not. Nor did he deny seeing 

Carroll's Facebook posts relating to domestic violence. Nor did 

he deny viewing her Facebook profile. He could have explained 

the safeguards he has in place. He could have explained how he 

manages his Facebook account. But he did not. Rather, Judge 

Bitney admitted that the parties "presented accurately the 
No. 2017AP2132.akz

13

substance of the interaction between Miss Carroll and the Court 

on Facebook" and that, on the day he and Carroll became Facebook 

friends, his decision had not yet been "reduced to writing." 

Judge Bitney's statement that the evidence presented in the 

motion was an accurate reflection of his "interaction" with 

Carroll is consistent with the remainder of the record, which is 

void of any denial that he saw Carroll's comments, posts, or 

reactions on Facebook.4 This record is far from adequate to 

overcome the objective evidence that one party was communicating 

with the judge on a Facebook account developed and maintained by 

the judge during the pendency of a case where the judge, not a 

jury, is the decision-maker.

¶81 It is worth noting that, in a case tried before a 

jury, if the court had any question regarding improper 

communication between a party and a member of the jury, we would 

expect a full record to be made. While judges need not detail 

all that goes into their decision-making as to whether to stay 

on a case, when a challenge is made as was made here, it is 

somewhat akin to that of a party or witness attempting to unduly 

influence a juror in a pending case. Yet, even though this 

judge chose to hold a hearing and render a decision on the 

record, we are left with an ample record of evidence in support 

 

4 An "interaction" is defined as a "mutual or reciprocal 

action or influence"; it is inherently interpersonal. 

"Interaction." Merriam-Webster.com Dictionary, Merriam-Webster, 

https://www.merriam-webster.com/dictionary/interaction. Accessed 

4 Jun. 2020.
No. 2017AP2132.akz

14

of the motion for recusal and little else. This case is indeed 

extraordinary.

¶82 In Caperton, the Supreme Court stated:

We conclude that there is a serious risk of actual 

bias——based on objective and reasonable perceptions——

when a person with a personal stake in a particular 

case had a significant and disproportionate influence 

in placing the judge on the case by raising funds or 

directing the judge's election campaign when the case 

was pending or imminent.

Caperton, 556 U.S. at 884. In this case, Carroll was "a person 

with a personal stake" in the proceedings. Id. Indeed, she had 

the ultimate stake in the case as a mother seeking custody of 

her child. Carroll also had the opportunity to "significant[ly] 

and disproportionate[ly] influence" the case. Id. She had a 

Facebook friendship with Judge Bitney in which she could 

introduce off-record facts relevant to Judge Bitney's decision, 

facts which Miller had no opportunity to rebut. And all this 

occurred "when the case was pending" and Judge Bitney's decision 

was "imminent." Id. In Caperton, it was not the judge's

actions, but the party's actions and their "significant and 

disproportionate influence" on the case that caused the Caperton

violation. Id. Similarly, while Judge Bitney could have, and 

should have, more prudently managed his Facebook account, it is 

Carroll's conduct during the pendency of the litigation that is 

of particular concern. 

¶83 Finally, in Caperton, the extraordinary conduct was 

attributed only to Blankenship; Blankenship paid the $3 million 

in support of Justice Benjamin during his campaign. Justice 

Benjamin concluded that no one could "point to any actual 
No. 2017AP2132.akz

15

conduct or activity on [his] part which could be termed 

'improper.'" Caperton, 556 U.S. at 882 (quoting Caperton v. 

A.T. Massey Coal Co., 679 S.E.2d 223, 293 (W. Va. 2008)). The 

Supreme Court agreed that Justice Benjamin's conduct was not 

"improper." See id. ("We do not question [Justice Benjamin's] 

subjective findings of impartiality and propriety."). Here, the 

facts are different. It was the judge who established and

personally managed his Facebook account, allowed public access 

(even personally accepting a friendship with a litigant in a 

pending case wherein the judge was the sole decision-maker), and 

had no protection in place against attempted influence.

¶84 I note that even those who would find no Caperton

violation in this case agree that Judge Bitney's management of 

his Facebook account evidenced significant shortfalls with the 

lack of protections afforded. See dissent, ¶124 ("Every member 

of this court would agree that Judge Bitney should have been 

more careful."). Indeed, we can easily "point to . . . actual 

conduct or activity on [Judge Bitney's] part which could be 

termed 'improper.'" Caperton, 556 U.S. at 882 (quoting 

Caperton, 679 S.E.2d at 293). Put simply, Carroll would not 

have had ex parte access to Judge Bitney if he had not given it 

to her. Judge Bitney affirmatively chose to let Carroll, a 

party to a highly contested child custody hearing over which he 

presided, become his Facebook friend. Judge Bitney personally 

and affirmatively accepted her friendship request. Even worse, 

since Carroll's personal life, character, and parental fitness 

were relevant to the custody dispute, Judge Bitney affirmatively 
No. 2017AP2132.akz

16

accepted access to off-record and relevant facts about Carroll 

when he accepted her friend request. Judge Bitney did not 

disclose his Facebook friendship with Carroll. He did not 

disclose any of their Facebook interactions. Judge Bitney's 

conduct in allowing a party such access in this case was not 

just improper. It was extraordinary. 

¶85 There is a serious risk that Judge Bitney was actually 

biased, in violation of the Due Process Clause. Here, as in 

Caperton, the violation occurs in part because of the party's 

actions, and in part because of the judge's actions. Certainly, 

Judge Bitney set up Carroll's ex parte access by choosing to be 

on social media and not having sufficient safeguards in place. 

But Caperton and this case both flow from the party's actions 

attempting to influence a judge or court during pending and 

existing proceedings——here, while the highly contested case was 

actually pending before Judge Bitney, the sole decision-maker.

¶86 The extreme facts of this case are as follows: (1) 

Judge Bitney personally managed his Facebook account; (2) Judge 

Bitney was the decision-maker and fact-finder in a pending 

custody dispute; (3) the custody dispute was highly contested 

and included the testimony of 15 witnesses; (4) the guardian ad 

litem's recommendation was contrary to the judge's decision; (5) 

Carroll requested a Facebook friendship with Judge Bitney 

immediately after final briefs in the case were submitted; (6) 

Judge Bitney personally and affirmatively accepted that 

friendship request; (7) in the 25 days between accepting the 

Facebook friendship and Judge Bitney's final decision, Carroll 
No. 2017AP2132.akz

17

reacted to or commented on Judge Bitney's Facebook posts at 

least 20 times; (8) those interactions included information 

relevant to the issues to be decided——Carroll's character and 

parental fitness; (9) in that same 25-day period, Carroll also 

posted on her account about domestic violence, showed that she 

was "interested in" attending a domestic violence-related event, 

and reacted to or shared other third-party content related to 

domestic violence, an issue which was highly relevant to the 

custody dispute; (10) Judge Bitney did not unfriend Carroll, 

disclose the Facebook friendship, or disclose the interactions; 

(11) Judge Bitney did not deny seeing any of Carroll's Facebook 

posts, comments, or reactions, or her profile page; and (12) 

Judge Bitney's decision was grounded in a conclusion that Miller 

had engaged in domestic violence against Carroll, was 

overwhelmingly in favor of Carroll, and uprooted the preexisting physical placement of the child.5

¶87 Under Caperton, this perfect storm of extreme and 

extraordinary facts, viewed objectively, undoubtedly 

demonstrates a serious risk of actual bias.

C. Judges And Facebook

¶88 The Preamble to the Wisconsin Supreme Court Rules 

setting forth the Code of Judicial Conduct ("the Code") states:

Our legal system is based on the principle that 

an independent, fair and competent judiciary will 

 

5 In his dissent, Justice Hagedorn describes the facts of 

this case as "ordinary." See dissent, ¶¶104, 106, 114, 117, 

125, 126. I most certainly hope they are not. Indeed, this 

concurrence demonstrates why the facts of this case are not (and 

should not be) ordinary.
No. 2017AP2132.akz

18

interpret and apply the laws that govern us. The role 

of the judiciary is central to American concepts of 

justice and the rule of law. Intrinsic to all 

provisions of this Code are the precepts that judges, 

individually and collectively, must respect and honor 

the judicial office as a public trust and strive to 

enhance and maintain confidence in our legal system. 

The judge is an arbiter of facts and law for the 

resolution of disputes and a highly visible symbol of 

government under rule of law.

SCR ch. 60 Preamble. The Code then sets forth a series of 

ethical rules that judges must follow. A judgeship carries with 

it profound responsibilities to the people, the bench, the bar, 

and to justice.

¶89 First, let me make clear that a violation of the Code 

does not automatically constitute a violation of due process. 

Whereas due process violations address serious risks of actual 

bias, the Code addresses the appearance of bias even if there is 

no actual bias. See Herrmann, 364 Wis. 2d 366, ¶151 (Ziegler, 

J., concurring) ("'Where only the appearance of bias is at 

issue, a litigant's recourse is to seek disqualification under 

state disqualification statutes[.]") (quoting People v. Freeman, 

222 P.3d 177, 178 (Cal. 2010); see id. ("'Less extreme cases——

including those that involve the mere appearance, but not the 

probability, of bias——should be resolved under more expansive 

disqualification statutes and codes of judicial conduct.'") 

(quoting Freeman, 222 P.3d at 185 (citing Caperton, 556 U.S. at 

889-90)). In this case, Miller brought a claim grounded in the 

Due Process Clause, not the Code. Accordingly, we do not 

analyze whether Judge Bitney's conduct constituted a violation 

of the Code. However, social media, while something judges are 

permitted to use as citizens and community members, should be 
No. 2017AP2132.akz

19

used with caution. Indeed, judges must always be mindful of how 

their actions as private citizens can impact their ability to 

preside over certain cases.

¶90 By way of example, under SCR 60.05(3)(c)2.d., a judge 

may not ask lawyers or those likely to appear before the judge 

to buy tickets to a pancake breakfast for a local neighborhood 

center. Comment, SCR 60.05(3)(c)2.d. "[A] judge may pass the 

collection basket during services at church, may ask friends and 

neighbors to buy tickets to a pancake breakfast for a local 

neighborhood center and may cook the pancakes at the event but 

may not personally ask attorneys and others who are likely to 

appear before the judge to buy tickets to it." Id. A judge is 

supposed to take precautions with in-person interactions with 

those who appear in front of the judge. Should that not be 

equally applicable for judges on social media?

¶91 Judicial use of Facebook has spawned vigorous debate 

regarding whether and to what extent judges ought to use 

Facebook, and the ethical issues Facebook poses for judges. 

See, e.g., Hon. Richard L. Gabriel & Nina Varsava, Friending, 

Following, and Liking Social Media and the Courts, Colo. Law., 

July 2019, at 9; Hon. M. Sue Kurita, Electronic Social Media: 

Friend or Foe for Judges, 7 St. Mary's J. Legal Malpractice & 

Ethics 184 (2017); Shaziah Singh, Friend Request Denied: 

Judicial Ethics & Social Media, 7 Case W. Reserve J.L. Tech. & 

Internet 153 (2016); John G. Browning, Why Can't We Be Friends? 

Judges' Use of Social Media, 68 U. Miami L. Rev. 487 (2014); 

Hon. Craig Estlinbaum, Social Networking & Judicial Ethics, 2 
No. 2017AP2132.akz

20

St. Mary's J. Legal Malpractice & Ethics 2 (2012); Samuel 

Vincent Jones, Judges, Friends, and Facebook: The Ethics of 

Prohibition, 24 Geo. J. Legal Ethics 281 (2011).

¶92 This debate continues, and various jurisdictions have 

taken different approaches to the intersection between judicial 

use of social media and ethical rules. Singh, supra ¶91, at 

158-71 (summarizing approaches and stating that: Florida, 

Oklahoma, and Massachusetts take a "strict approach"; 

California, Arizona, Utah, Texas, North Carolina, and Florida 

take a "moderate approach"; and Maryland, New York, Kentucky, 

Ohio, South Carolina, Georgia, Tennessee, and the American Bar 

Association take a "liberal approach").

¶93 Judge Bitney was not the first judge to have chosen to 

use electronic social media. Indeed, there have been many 

troubling cases involving judicial use of electronic social 

media in recent years. See Browning, supra ¶91, at 497-502

(collecting cases), describing, for example:

 In re Dempsey, 29 So. 3d 1030 (Fla. 2010), in which a 

judge's conduct violated a canon of judicial conduct 

when her campaign video on YouTube misrepresented her 

qualifications; and

 Doe v. Sex Offender Registry Bd., 959 N.E.2d 990 

(Mass. App. Ct. 2012), in which a hearing officer 

posted "inappropriate" comments on Facebook relating 

to Doe's appeal of his classification as a sex 

offender.
No. 2017AP2132.akz

21

See also Kurita, supra ¶91, at 211-33 (collecting cases), 

describing, for example:

 Kiniti-Wairimu v. Holder, 312 F. App'x 907 (9th Cir. 

2009), in which an immigration judge independently 

researched a Kenyan citizen's family online when his 

application for withholding of removal and protection 

under the Convention Against Torture was pending, 

violating due process; and

 State v. Thomas, 376 P.3d 184 (N.M. 2016), in which a 

judge posted twice on his campaign Facebook account 

regarding a trial in his courtroom, including a post 

saying, "In the trial I presided over, the jury 

returned guilty verdicts for first-degree murder and 

kidnapping just after lunch. Justice was served. 

Thank you for your prayers." Id. at 189.

¶94 I note that this case, and many others, involve use of 

electronic social media by a third party, not just the judge. A 

judge who uses electronic social media subjects himself or 

herself to the risk of misuse of a social media relationship by 

a third party. I am concerned that no matter how cautious and 

attentive the judge may be, a judge who uses electronic social 

media may expose both the judge and the judiciary as a whole to 

an appearance of bias or impropriety.

¶95 Accordingly, I strongly urge my colleagues on the 

bench to weigh the advantages and disadvantages of using 

electronic social media like Facebook. See Jones, supra ¶91, at 

302 (concluding that, "[t]o avoid the perils that emanate from 
No. 2017AP2132.akz

22

current and future [electronic social networking] capacities——

including, but not limited to, 'friending'——the Judicial Code 

should be viewed as a restrictive juridical construct"). And if 

a judge chooses to use a social media platform like Facebook, 

then that judge must proceed with the utmost diligence and 

caution. See Gabriel & Varsava, supra ¶91, at 12 (concluding 

that "judges who wish to participate in social media should 

proceed with caution, asking themselves before acting whether 

their social media activities could be deemed by a reasonable 

person to undermine the judges' independence, integrity, or 

impartiality; place the judiciary in disrepute; or interfere 

with their ability to carry out the substantial duties that have 

been entrusted to them").

II. CONCLUSION

¶96 I join the majority because it does not adopt the 

standard suggested in Justice Ann Walsh Bradley's concurrence. 

Rather, the majority opinion is consistent with the language of 

the United States Supreme Court in Caperton, my writing (joined 

by two other justices) in Herrmann, and my writing in Allen. 

See Caperton, 556 U.S. 868; Herrmann, 364 Wis. 2d 336, ¶¶112-62 

(Ziegler, J., concurring); and Allen, 322 Wis. 2d 372, ¶¶259-72 

(Ziegler, J., concurring). Here, "the extreme facts of this 

case rebut the presumption of judicial impartiality and 

establish a due process violation." Majority op., ¶36. I 

conclude, consistently with Caperton, that there is a serious 

risk that Judge Bitney was actually biased, in violation of the 

Due Process Clause. 
No. 2017AP2132.akz

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¶97 I also agree with much of Justice Hagedorn's writing 

(see dissent, ¶¶104-127) because recusal must not be used as a 

strategic weapon to judge-shop. I write separately to again 

emphasize that Caperton due process violations are rare and 

limited to the most extraordinary and extreme cases. But the 

facts presented here are indeed extraordinary. To be clear, our 

decision in this case is not an expansion of Caperton, but, 

rather, a faithful application of it to the facts of this case——

which, in many ways, are even more extreme than those of 

Caperton itself. 

¶98 I also write separately, in light of this case, to 

caution the Wisconsin bench about the hazards of electronic 

social media, and Facebook in particular. I caution judges to 

avoid using social media such as Facebook unless significant 

safeguards are in place to avoid a situation like that present 

here. If a judge chooses to participate in social media, then 

additional——not fewer——precautions must be taken. An appearance 

of impropriety is not itself sufficient to constitute a due 

process violation. But more is present here. 

¶99 For the foregoing reasons, I respectfully concur.
No. 2017AP2132.rfd

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¶100 REBECCA FRANK DALLET, J. (concurring). I write 

separately to provide additional guidance and clarification for 

the bench and bar. There is nothing inherently inappropriate 

about a judge's use of social media platforms like Facebook. 

There is no rule or judicial ethics opinion in Wisconsin 

prohibiting or limiting a judge's use of social media. In fact, 

the use of social media platforms "can benefit judges in both 

their personal and professional lives." ABA Comm'n on Ethics & 

Prof'l Responsibility, Formal Op. 13-462 at 4 (2013). 

Participation in social media is one way for judges to remain 

active in the community and "can prevent [judges] from being 

thought of as isolated or out of touch." Id. at 1. 

Additionally, Facebook and other social media platforms have 

become important campaign tools for judges to deliver campaign 

messages to the voters in Wisconsin. See Susan Criss, Use of 

Social Media by Judges, The, 60 Advocate (Texas) 18 ("Few 

judicial campaigns can realistically afford to refrain from 

using social media to deliver their message to the voting 

public.").

¶101 A judge's Facebook connection to a party or an 

attorney, without more, does not rebut the presumption of 

impartiality. Requiring automatic disqualification in every 

case involving a Facebook acquaintance would not reflect the 

true nature of a Facebook friendship and "casts a large net in 

an effort to catch a minnow." Chace v. Loisel, 170 So. 3d 802, 

804 (Fla. Dist. Ct. App. 2014); see also Law Offices of Herssein 

& Herssein, P.A. v. United Servs. Auto Ass'n, 271 So. 3d 889, 
No. 2017AP2132.rfd

2

897 (Fla. 2018)) ("No reasonably prudent person would fear that 

she could not receive a fair and impartial trial based solely on 

the fact that a judge and an attorney appearing before the judge 

are Facebook 'friends' with a relationship of an indeterminate 

nature."); ABA Formal Op. 13-462 at 2-3 ("Simple designation as 

an [electronic social media] connection does not, in and of 

itself, indicate the degree or intensity of a judge's 

relationship with a person."). If a mere acquaintance on 

Facebook required judicial recusal, it would promote 

gamesmanship among parties and weaponize social media. 

¶102 However, judges must be cautious in their use of 

social media. As the American Bar Association (ABA) has 

reasoned, "[a] judge may participate in electronic social 

networking, but as with all social relationships and contacts, a 

judge must . . . avoid any conduct that would undermine the 

judge's independence, integrity, or impartiality . . . ." ABA 

Formal Op. 13-462 at 1. Public confidence in the administration 

of justice demands that members of the judiciary perform their 

duties impartially and free from any sort of bias. See ABA 

Comm'n on Ethics & Prof'l Responsibility, Formal Op. 19-488 at 2 

(2019); see also Williams-Yulee v. Florida Bar, 575 U.S. 433, 

445 (2015)(reaffirming the "'vital state interest' in 

safeguarding 'public confidence in the fairness and integrity in 

the nation's elected judges'" (quoted source omitted)). A 

judge's online "friendships," just like a judge's real life 

friendships, must be approached with care and caution.
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¶103 I am authorized to state that Justice BRIAN HAGEDORN 

joins this concurrence.
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¶104 BRIAN HAGEDORN, J. (dissenting). For most of 

American history, the United States Constitution was understood 

to say close to nothing about judicial recusal. This area of 

law, with a few extremely narrow exceptions, was left to state 

regulation and oversight. But as it has in many areas, the 

judiciary began to expand the constitutional footprint, inch by 

inch, and lately, step by step. Today's decision continues the 

march away from the original public meaning of our Constitution, 

and greatly risks merging ordinary judicial recusal questions 

with the narrow proscriptions of the Due Process Clause.

¶105 The question in this case is not whether, under an 

objective standard, Judge Bitney would be able to hold the 

balance nice, clear, and true in light of the circumstances. 

The question is likewise not whether Judge Bitney may have 

transgressed the recusal standards in the Wisconsin Statutes or 

Code of Judicial Conduct. Rather, the question presented is 

whether the record in this case demonstrates that the Fourteenth 

Amendment's Due Process Clause required Judge Bitney's recusal, 

and therefore whether Miller's due process right to an impartial 

tribunal was violated. Under the governing United States 

Supreme Court precedent, recusal is constitutionally required 

only when actual bias is present or when the facts of a case are 

so extreme as to constitute a serious risk of actual bias.

¶106 Miller claims this constitutes one of the rare cases 

where the risk of actual bias is constitutionally intolerable. 

I disagree. This is a relatively normal appearance of bias 

case. Granted, given its intersection with modern social media, 
No. 2017AP2132.bh

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an area comparatively unexplored in judicial ethics circles, 

this fact pattern carries with it a sense of novelty. But 

outside of its medium, the facts before us are rather ordinary 

in the types of risks and potential conflicts at issue. I 

conclude the circumstances here are not so extreme as to violate 

Miller's due process right to an impartial tribunal. I 

respectfully dissent.1

I. THE CONSTITUTION AND RECUSAL

¶107 The Due Process Clause of the Fourteenth Amendment 

prohibits states from depriving "any person of life, liberty, or 

property, without due process of law." U.S. Const. amend. XIV, 

§ 1. The touchstone for a claim based on this constitutional 

protection is the "settled usages and modes of proceeding 

existing in the common and statute law of England." Tumey v. 

Ohio, 273 U.S. 510, 523 (1927); see also Murray's Lessee v. 

Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 277 

(1856); Honda Motor Co. v. Oberg, 512 U.S. 415, 430 (1994).

¶108 Under the common law, the grounds for judicial 

disqualification were simple and narrow: a man could not act as 

the judge in his own case. See generally Williams v. 

 

1 I also join Justice Dallet's concurrence regarding 

judicial use of social media. Judges must be careful, but we 

are elected officials and members of civil society. Social 

media can be an important platform to inform citizens of who 

judges are as people, to educate the citizenry regarding the 

judicial role, and to promote candidacy for public office. The 

dangers are not significantly greater than those attendant to 

judicial involvement in non-profit work, participation in 

community-wide justice initiatives, and shaking hands at the 

town Fourth of July parade.
No. 2017AP2132.bh

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Pennsylvania, 136 S. Ct. 1899, 1917 (2016) (Thomas, J., 

dissenting). In practice, this prohibition was limited to cases 

where the judge had a direct and personal financial stake in the 

outcome, or where the judge was a party in the action. Id. 

Neither personal bias nor an appearance of bias was enough. 

Personal interest, not potential bias, was the only concern 

sufficient to trigger judicial disqualification. Id. One 

scholar summarized it this way: "English common law practice at 

the time of the establishment of the American court system was 

simple in the extreme. Judges disqualified for financial 

interest. No other disqualifications were permitted, and bias, 

today the most controversial ground for disqualification, was 

rejected entirely." John P. Frank, Disqualification of Judges, 

56 Yale L.J. 605, 611–12 (1947).

¶109 Early American federal and state laws expanded the 

narrow common law rule in limited ways, notably to instances 

where the judge previously served as an attorney in the same 

case. Williams, 136 S. Ct. at 1918-19 (Thomas, J., dissenting). 

But the narrowness of this limitation cannot be overstated. By 

way of illustration, one of the most famous cases in American 

legal history, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), 

was presided over by Chief Justice John Marshall. But it was 

then-Secretary of State John Marshall who failed to deliver the 

commissions that led to the mandamus action before the high 
No. 2017AP2132.bh

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court in the first place.2 See Williams, 136 S. Ct. at 1919 

(Thomas, J., dissenting). None of that violated the common law 

or constitutional rules for judicial disqualification as 

understood at the time.

¶110 The United States Supreme Court has recognized a 

constitutionally protected due process right to an impartial 

tribunal. See In re Murchison, 349 U.S. 133, 136 (1955) ("A 

fair trial in a fair tribunal is a basic requirement of due 

process."). But it has also been crystal clear that the "Due 

Process Clause demarks only the outer boundaries of judicial 

disqualifications." Aetna Life Ins. Co. v. Lavoie, 475 

U.S. 813, 828 (1986). The vast majority of judicial 

disqualification issues are matters for state law and policy, 

not the Constitution. Tumey, 273 U.S. at 523.

¶111 Until recently, the Supreme Court's due process 

precedent was consonant with the narrow common law rule. Cases 

in the 20th century made clear that due process disqualified 

judges when they had "a direct, personal, substantial pecuniary 

interest" in the outcome of a case. See id. (explaining recusal 

required of a judge who would profit from a case only upon a 

conviction of the defendant); see also Aetna Life Ins., 475 

U.S. at 823-24 (explaining recusal required of a judge whose 

 

2 In fact, Secretary Marshall tasked his younger brother, 

James Markham Marshall, to deliver the commissions——including 

the commission intended for Marbury. See Marbury v. Madison, 5

U.S. (1 Cranch) 137, 146 (1803) (referring to James Marshall's 

affidavit); see also Michael W. McConnell, The Story of Marbury 

v. Madison: Making Defeat Look Like Victory, in Constitutional 

Law Stories 17-18 (Michael C. Dorf ed., 2d ed. 2009) (discussing 

the circumstances that gave rise to Marbury).
No. 2017AP2132.bh

5

decision in a case would have a "clear and immediate effect of 

enhancing both the legal status and the settlement value of" the 

judge's own cases against the same defendant). Around the 

middle of the 20th century, the Supreme Court also found that 

due process is violated by a "judge who was at the same time the 

complainant, indicter and prosecutor." Murchison, 349 U.S. at 

135. Thus, for most of its history, the Supreme Court applied 

due process only to variants of the common law rules——where a 

judge had a direct, personal, substantial pecuniary interest, 

and where a judge served as counsel in the case below. These 

standards were based on the notion of a direct conflict and 

personal interest, what might be labeled actual bias. Moreover, 

because the constitutional proscriptions remained narrow, states 

had considerable room to enact stricter recusal rules based on 

policy and prudence, not constitutional command.

¶112 In 2009, the Supreme Court entertained a case with 

extreme facts, and responded with a limited expansion of the 

protections afforded by the Constitution. Caperton v. A.T. 

Massey Coal Co., 556 U.S. 868 (2009). In Caperton, West 

Virginia Supreme Court Justice Brent Benjamin declined to recuse 

on a case reviewing a $50 million verdict. Id. at 873-74. 

During the three years between entry of that verdict and the 

appeal to Justice Benjamin's court, one of the parties in the 

case spent $3 million to help elect Justice Benjamin to his

position. Id. at 872-73. Those expenditures, which were more 

than all other supporters combined, had a "significant and 

disproportionate influence" in helping elect Justice Benjamin in 
No. 2017AP2132.bh

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a close race. Id. at 873, 884. This was, as it were, a perfect 

storm of facts——extraordinarily disproportionate campaign 

contributions in a close election from a party in a pending 

case.

¶113 Facing this, the Court indicated for the first time 

that something less than actual bias may be of constitutional 

import. But its application was limited to cases where, under 

an objective inquiry, "a serious risk of actual bias" is 

present. Id. at 884-86. "Serious risk" does not mean simply a 

meaningful risk, but one far outside the norm, one right next to 

the line of actual bias. The Court went out of its way to 

stress this was no ordinary situation, stating for example: 

 "On these extreme facts the probability of actual 

bias rises to an unconstitutional level."

 "[T]his is an exceptional case."

 "The facts now before us are extreme by any 

measure. The parties point to no other instance 

involving judicial campaign contributions that 

presents a potential for bias comparable to the 

circumstances in this case."

 "Our decision today addresses an extraordinary 

situation where the Constitution requires 

recusal."

Id. at 884, 886-87. The unmistakable message was that 

"[a]pplication of the constitutional standard implicated in this 

case will thus be confined to rare instances." Id. at 890. 

Under Caperton, appearance of bias is not enough to trigger a 

constitutional problem. Rather, recusal is required under the 

Constitution only in the extreme, exceptional, and extraordinary 

case where the risk of actual bias is so unusually high that it 
No. 2017AP2132.bh

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cannot be tolerated. Id. at 877 (recusal required where "the 

probability of actual bias on the part of the judge or 

decisionmaker is too high to be constitutionally tolerable" 

(quoted source omitted)).

II. APPLICATION

¶114 Two problems plague the majority's analysis. First, 

most of the court's opinion reads like an ordinary discussion on 

recusal, but Caperton limits application of the Due Process 

Clause to extreme situations. Second, the majority functionally 

finds facts by embracing every negative inference from a record 

that is, at best, ambiguous.

¶115 When the Supreme Court decided Caperton, Chief Justice 

Roberts warned in dissent that some might use this open door to 

turn routine judicial recusal questions into due process claims. 

Id. at 899-900 (Roberts, C.J., dissenting). The Chief Justice 

stressed——with no disagreement from the majority——that recusal 

is generally not an issue of constitutional concern. Id. at 

892-93. The Supreme Court had previously said that "[m]atters 

of kinship, personal bias, state policy, remoteness of interest, 

would seem generally to be matters merely of legislative 

discretion." Id. at 892 (quoting Tumey, 273 U.S. at 523). And 

given this, the Chief Justice reasoned, so too are common 

recusal issues like "friendship with a party or lawyer, prior 

employment experience, membership in clubs or associations, 

prior speeches and writings, religious affiliation, and 

countless other considerations." Id. at 892.
No. 2017AP2132.bh

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¶116 It is true that Caperton opened the door to 

constitutional claims alleging something less than actual bias. 

But the opening was more crevice than canyon. It is easy to 

recite the standard that any constitutional claim based on a 

serious risk of bias must be an "extreme case," but that cannot 

operate as a license to neglect its import. That is what the 

majority does here. It recites Caperton's repeated admonition 

that only extreme cases implicate the Constitution. Yet, its 

analysis would look almost no different if this were a case 

based on the recusal standards in our statutes or judicial 

ethics rules.

¶117 The record before us doesn't tell us much, but what it 

does tell suggests this is not a needle-in-the-haystack judicial 

recusal case; it is quite ordinary. The thrust of the recusal 

argument rests on the fact that Judge Bitney accepted a Facebook 

friend request from a party while a case was pending, and did 

not disclose it. But that's rather sparse evidence from which 

to conclude a certain ethics violation occurred, much less a due 

process problem.

¶118 Broadly speaking, Facebook, like other social media, 

can be something one interacts with much or little. Settings 

may be adjusted so that one never sees notifications regarding 

comments or likes on one's posts. A Facebook user can have 

thousands of friends, but only follow the updates of a far 

smaller circle. And though we do know Judge Bitney was an 

active Facebook user, the record does not tell us anything about 

his interactions with Carroll herself.
No. 2017AP2132.bh

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¶119 For instance, we do not know, and therefore cannot 

conclude, whether Judge Bitney ever saw Carroll's domestic 

violence-related posts. Thus, even if those could be seen as 

"ex parte communications concerning a pending . . . proceeding," 

as the majority construes them, we have no factual findings from 

which we could definitively say anything like that occurred. 

SCR 60.04(g) (prohibiting most ex parte communications regarding 

a pending matter). We also cannot say, for that matter, whether 

Judge Bitney viewed any of Carroll's posts or Facebook activity 

while the case was pending.

¶120 It is also difficult, without more facts, to know what 

to read into Judge Bitney's decision to accept Carroll's 

Facebook friend request. Judge Bitney undoubtedly has thousands 

of parties before him each year. It could be he was not aware 

her case was pending at the time he accepted the request. It 

could be he routinely accepts all Facebook friend requests he 

receives without paying much attention to who they are from. 

While the record could support more problematic inferences, the 

record as we have it supports more innocent ones as well.

¶121 Further, we do not know if Judge Bitney was even aware 

that Carroll had liked his posts or whether he saw the two "get 

well soon" comments she left on his posts. Again, many people 

do not follow every comment or like on a Facebook post. 

Moreover, there's nothing particularly sinister about a party 

wishing a judge a speedy recovery from knee surgery. A similar 

greeting from parties or counsel while passing in the halls of 

the courthouse would raise no one's eyebrows. Nor would "Merry 
No. 2017AP2132.bh

10

Christmas!" or "The pastor preached a wonderful sermon on 

Sunday, didn't he?" These benign interactions are a routine 

part of being a person in a finite community.

¶122 To that point, these kinds of interactions between a 

judicial officer and members in the community are not that 

unique. Suppose Carroll and Judge Bitney were already friends 

on Facebook. Would liking Bible verses in his Facebook feed and 

wishing him a speedy recovery from knee surgery be cause to 

invoke the Due Process Clause? I think not. Suppose Carroll 

came to a "Re-Elect Judge Bitney" rally during the last election 

cycle and wrote a Facebook post supporting him. This would not 

constitute constitutional grounds for recusal either. Nor would 

a large campaign contribution trigger due process concerns apart 

from the uniquely problematic confluence of events that Caperton

occasioned. 556 U.S. at 887 ("The parties point to no other 

instance involving judicial campaign contributions that presents 

a potential for bias comparable to the circumstances in this 

case.").

¶123 It is important to remember that judges are not 

isolated members of the community. They read the news. They 

receive unsolicited and stray comments about cases or parties. 

Judges may, particularly in smaller communities, know a party's 

family history from another case, or have heard stories from 

judicial colleagues about a party before them. Judges may go to 

church with parties before them, volunteer with the local Rotary 

chapter, or be former high school football teammates with a 

party's father. Judges are people too. And it is precisely 
No. 2017AP2132.bh

11

these sorts of ordinary, and generally unproblematic, life 

interactions that undergird the strong presumption that judges 

are impartial. The very concept of an impartial judiciary 

depends upon the belief that judges can manage through their 

biases, news feeds, political supporters, former co-workers, and 

neighbors to render decisions without fear or favor to any 

party.

¶124 Every member of this court would agree that Judge 

Bitney should have been more careful. Knowingly or not, 

accepting a Facebook friend request from a party while a case is 

pending raises an appearance of bias that judges should strive 

to avoid. But the claim here is that, far beyond an appearance 

of bias, this miscue was extreme, exceptional, and 

extraordinary, raising a serious risk of actual bias. Despite 

the majority's confident assertions, this record tells us far 

too little to conclude the Constitution is implicated. We as a 

court must not deploy the Constitution as a means to right all 

recusal wrongs.3 See Caperton 556 U.S. at 903 (Scalia, J., 

 

3 The concurrence of Justice Ann Walsh Bradley tries to take 

Caperton even further. She would seemingly transform many 

appearance of bias questions into constitutional claims. And 

separately, she also argues that Caperton is inconsistent with 

our decision in State v. Henley, 2011 WI 67, 338 Wis. 2d 610, 

802 N.W.2d 175 (per curiam), confirming this court's 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.
No. 2017AP2132.bh

12

dissenting) ("Divinely inspired text may contain the answers to 

all earthly questions, but the Due Process Clause most assuredly 

does not. The Court today continues its quixotic quest to right 

all wrongs and repair all imperfections through the 

Constitution."). We should therefore default to the strong 

presumption that Judge Bitney can withstand a hearty breeze——

even what could have been attempted influence in this case by 

Carroll——and still not blow over.

¶125 Blurring this standard leads to the very dangers Chief 

Justice Roberts cautioned against in his Caperton dissent. All 

future litigants, he warned, "will assert that their case is 

 

First, our recusal procedures come from good stock; they 

follow the United States Supreme Court's model for courts of 

last resort. See Henley, 338 Wis. 2d 610, ¶¶28-31 (noting the 

United States Supreme Court's procedure, which this court has 

followed for more than 150 years, was unchanged by Caperton). 

Therefore, any problem that allegedly exists here is no more 

acute than it is for the Supreme Court itself.

Second, the recusal decisions of individual justices on 

this court are reviewable in the exact same way the recusal 

decision here was——by a higher court. That is, litigants may 

appeal the recusal decisions of members of this court to the 

United States Supreme Court. That, of course, is exactly what 

happened in Caperton. In short, there is nothing incongruous 

about the existence of a due process claim and our rule allowing 

justices to decide for themselves whether recusal is 

appropriate.

The recusal wars that plagued this court for several years 

have concluded; I bid them good riddance. Nothing since Henley, 

which was decided after Caperton, demands another round of 

squabbling over these issues. Justice Ann Walsh Bradley is 

right about one thing——the integrity of our courts is at stake. 

Encouraging litigants to use recusal as a weapon, turning 

justices against one another, and casting more public doubt on 

the integrity of our colleagues is the only thing that will come 

from Justice Bradley's invitation. These zombies are best kept 

entombed.
No. 2017AP2132.bh

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really the most extreme thus far." Id. at 899 (Roberts, C.J., 

dissenting). And each new allegedly extreme case will entice 

the judiciary "to correct the extreme case, rather than adhering 

to the legal principle." Id. Sometimes, the Chief Justice 

reminded us, the cure is worse than the disease. Id. at 902. 

While trying to protect the integrity of the judiciary, the 

invitation to dress ordinary judicial disqualification claims as 

constitutional cases "will itself bring our judicial system into 

undeserved disrepute, and diminish the confidence of the 

American people in the fairness and integrity of their courts." 

Id.

¶126 Although this court must follow Caperton, it has no 

constitutional warrant to expand it. The more this court takes 

ordinary recusal questions and turns them into constitutional 

questions, the more we will see these claims. And the more we 

see these claims, the more recusal will become a litigation 

weapon (after all, a due process violation is structural error). 

And the more recusal becomes a litigation weapon, the more 

damage it does to the judiciary as a whole. The presumption 

that judges will follow the law regardless of their personal 

views and regardless of their associations is quickly being 

replaced by the presumption that judges are frail, 

impressionable, and not to be trusted. Make no mistake, today's 

decision will invite ever more Constitution-based recusal 

claims. And with it, faith in the judiciary will be undermined, 

not strengthened. With each new blessing of a new "just as bad 

as Caperton" recusal claim, the judiciary continues its 
No. 2017AP2132.bh

14

constitutional takeover of new areas of law that the people, 

through their written Constitution, left to themselves.

¶127 Nothing in the original public meaning of our 

Constitution nor in Supreme Court precedent requires us to 

transform Judge Bitney's social media misstep into a 

constitutional controversy. I respectfully dissent.

¶128 I am authorized to state that Justices REBECCA GRASSL 

BRADLEY and DANIEL KELLY join this dissent except for footnote 1 

and ¶¶120-24, but they do join footnote 3.
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