                                                                      2020 WI 56

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2017AP2132


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

                        Timothy W. Miller,
                                  Joint-Petitioner-Appellant,
                             v.
                        Angela L. Carroll,
                                  Joint-Petitioner-Respondent-
                        Petitioner.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                           Reported at 386 Wis. 2d 267,925 N.W.2d 580
                               PDC No:2019 WI App 10 - Published

OPINION FILED:          June 16, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 13, 2020

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Barron
   JUDGE:               Michael J. Bitney

JUSTICES:
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.
    For the joint-petitioner-appellant, there was a brief filed
by Stephanie L. Finn, David J. Rice, Terry L. Moore, and Herrick
& Hart, S.C., Eau Claire. There was an oral argument by Terry L.
Moore.


    An amicus curiae brief was filed on behalf of Wisconsin
Chapter of American Academy of Matrimonial Lawyers by Daniel P.
Bestul and Duxstad & Bestul, S.C., Monroe; with whom on the
brief was Jennifer Van Kirk and Peckerman, Klein & Van Kirk LLP,
Milwaukee.




                               2
                                                                    2020 WI 56




                                                            NOTICE
                                              This opinion is subject to further
                                              editing and modification.   The final
                                              version will appear in the bound
                                              volume of the official reports.
No.    2017AP2132
(L.C. No.   2011PA46PJ)

STATE OF WISCONSIN                        :            IN SUPREME COURT

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

Timothy W. Miller,
                                                                 FILED
            Joint-Petitioner-Appellant,
                                                            JUN 16, 2020
      v.
                                                               Sheila T. Reiff
Angela L. Carroll,                                          Clerk of Supreme Court


          Joint-Petitioner-Respondent-
Petitioner.


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     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.

                                               2
                                                                       No.   2017AP2132



     ¶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.

                                            3
                                                                                No.       2017AP2132



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



       Facebook friendship is established by the acceptance of a
       5

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).

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

represented by a thumbs-up icon, to "like" a Facebook page or
post. See Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013).
In 2016, Facebook also included other "reactions" in addition to
the   "like"  button:     Love,   Haha,  Wow,   Sad,  or   Angry.
https://about.fb.com/news/2016/02/reactions-now-available-
globally/.

     As the parties admit, the record may not include all of
Carroll's Facebook activity with Judge Bitney.
       7   Some of the posts that Carroll "liked" include:

               Dear Lord, give me this day the grace to be charitable
                in thought, kind in deed and loving in speech toward
                all. Amen.

                                                4
                                                             No.   2017AP2132



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."

                                     5
                                                                         No.    2017AP2132



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

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

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

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

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

the contested hearing.          Carroll posted that she was "interested

in" attending the "Stop the Silence Domestic violence awareness

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

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

entitled "Woman dies two years after being set on fire by ex-

boyfriend."        Finally,     Carroll         "shared"        a    third-party      post

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

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

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




     9 A Facebook user who posts content will receive a
notification from each user who likes the post.       See Olivia
League, Whether You Like it or Not Your "Likes" are Out:       An
Analysis of Nonverbal Conduct in the Hearsay Context, 68 S.C. L.
Rev. 939, 948 (2017); https://www.facebook.com/help/166890600000
6551?helpref=popular_topics.
     10 Facebook allows a user's friends to see public events
that      a     user    has     selected     "interested     in."
See https://www.facebook.com/help/151154081619755?helpref=uf_per
malink.
     11"Sharing" a Facebook post means that it will show up on
your    friends'    News    Feeds   and    on    your  profile.
See https://www.facebook.com/help/333140160100643.

                                           6
                                                                         No.       2017AP2132



"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.


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

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.

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

user will post content——which can include text, pictures, or
videos——to that user's profile page delivering it to the
author's subscribers.").

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

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."

                                            7
                                                                     No.   2017AP2132



       ¶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


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

§ 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).

       Miller
       17        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.

                                            8
                                                                       No.    2017AP2132



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.
                                         9
                                                                       No.   2017AP2132



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
                                         10
                                                                             No.     2017AP2132



       ¶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
                                                11
                                                                           No.     2017AP2132



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.


                                                  12
                                                                              No.     2017AP2132



             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
                                                  13
                                                                      No.     2017AP2132



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
                                       14
                                                                         No.     2017AP2132



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

We acknowledge that it is the exceptional case with "extreme

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

bias."      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


       In her concurrence, Justice Ann Walsh Bradley advocates
      18

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).

                                          15
                                                                No.    2017AP2132



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

       In
      19     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."
                                         16
                                                                         No.     2017AP2132



Acceptance of Carroll's friend request enabled Judge Bitney to

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

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

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

a   different      position        than       Miller     and    caused    an     improper

asymmetry of access.

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

Facebook activity is another important factor we consider in

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

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

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

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

verses,    "loved"       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
                                              17
                                                                  No.    2017AP2132



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.


       The record does not provide conclusive evidence that
      20

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.

                                         18
                                                                            No.   2017AP2132



      ¶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

       Had Carroll sent Judge Bitney a letter containing a
      21

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.

                                             19
                                                                        No.     2017AP2132



awareness event.         Allegations of domestic violence formed the

basis     for     Carroll's       motion       to    modify     child    custody       and

placement, and a finding of domestic violence formed the basis

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

supported       her   allegation        that   Miller    had     committed       domestic

violence against her and that she should therefore be awarded

custody.        But unlike the information presented at the hearing,

Miller was unaware that Judge Bitney had access to this off-the-

record information.

      ¶33    Finally,        we    consider          Judge      Bitney's        lack    of

disclosure, at any point, in any way or form, as an important

factor in assessing the serious risk of actual bias.                           Youkers v.

State, 400 S.W.3d 200 (Tex. App. 2013), provides guidance as to

how a judge should respond to communications from a social media

connection.        In Youkers, a Texas court of appeals considered a

judicial bias claim based on a trial judge's designation as a

Facebook friend of the victim's father.                        Id. at 204-07.          The

victim's father had sent the judge a private message on Facebook
asking for leniency for the defendant.                       Id. at 204.       The judge

responded to the message, advising the father that the message

was in violation of rules precluding ex parte communications,

stating that he stopped reading the message once he realized the

message     was    improper,      and    warning      that    any    further     messages

about the case would result in the two no longer being Facebook

friends.        Id.   The judge also advised the father that he was

placing the communication in the court's file, disclosing the
message to the lawyers on the case, and contacting the judicial
                                           20
                                                                      No.    2017AP2132



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


       Judges should be cautious when using social media and
      22

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.

       Facebook allows its users to control what content appears
      23

on      their      respective      News      Feed.             See
https://www.facebook.com/help/964154640320617/?helpref=hc_fnav

                                             21
                                                                           No.    2017AP2132



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).

       We need not reach the merits of Judge
       24                                                                         Bitney's
determination   as  it   relates to legal custody,                                physical
placement, and child support.

                                              22
                                                             No.     2017AP2132



                             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.




                                    23
                                                                         No.    2017AP2132.awb


      ¶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.
                                   1
                                                       No.       2017AP2132.awb


    ¶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.

                                    2
                                                                     No.    2017AP2132.awb


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).

                                            3
                                                                 No.    2017AP2132.awb


       ¶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).


                                           4
                                                                    No.   2017AP2132.awb


      ¶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.


      4See 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.").

                                          5
                                                                              No.   2017AP2132.awb


        ¶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.


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

Wis. 2d 336, 867 N.W.2d 772 (Ann Walsh Bradley, J., lead op.).

                                                  6
                                                                             No.     2017AP2132.awb

       Application of the constitutional standard implicated
       in this case will thus be confined to rare instances.
Caperton, 556 U.S. at 889-90 (quoting Aetna Life Ins. Co. v.

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

                                                 II

       ¶53    As the present case demonstrates, review is available

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

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

                                                 7
                                                                           No.    2017AP2132.awb


    ¶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.



                                              8
                                                              No.    2017AP2132.awb


       ¶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

                                         9
                                                                        No.   2017AP2132.awb


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.").

                                            10
                                             No.   2017AP2132.awb


¶64   For the foregoing reasons, I respectfully concur.




                           11
                                                                  No.   2017AP2132.akz


       ¶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

       In her concurrence, Justice Ann Walsh Bradley advocates
       1

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.
                               1
                                                                    No.    2017AP2132.akz


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
                                             2
                                                                    No.    2017AP2132.akz


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

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

the burden is on the party challenging that presumption to rebut

it.   Pinno, 356 Wis. 2d 106, ¶103.

      ¶69    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.

      2An 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.

                                           3
                                            No.   2017AP2132.akz

"After the verdict but before the appeal, West
Virginia held its 2004 judicial elections."     Id. at
873.   Five justices sit on the West Virginia Supreme
Court of Appeals.    Id. at 874–75.    Whoever won the
West Virginia Supreme Court of Appeals' 2004 election
would most certainly be on the court when it decided
whether to sustain or overturn this $50 million
verdict against A.T. Massey. Id. at 873.

     Donald   Blankenship,  who   was  A.T.   Massey's
chairman, chief executive officer, and president,
"[knew] that the Supreme Court of Appeals of West
Virginia would consider the appeal in the case." Id.
Blankenship spent $3 million to support the election
of Brent Benjamin, an attorney who was running against
Justice Warren McGraw for a seat on the West Virginia
Supreme Court of Appeals. Id. . . .

     Blankenship's   $3    million   of    expenditures
supporting the election of Benjamin, who if elected
would be on the West Virginia Supreme Court of Appeals
when   it   decided   the    pending  case    involving
Blankenship's company, dwarfed all other spending in
the election. . . . Id. . . .

     In addition, the United States Supreme Court
noted that the election results were not a landslide
victory. Id. A total of 716,337 people voted in the
West Virginia Supreme Court of Appeals race. See id.
Benjamin was elected with a narrow margin of 53.3% of
the votes.    Id.   Benjamin defeated his opponent by
fewer than 50,000 votes (Benjamin received 382,036
votes and Justice McGraw received 334,301). Id.

     Approximately 11 months after Justice Benjamin
won the election, and shortly before A.T. Massey filed
its petition for appeal, Caperton moved to disqualify
Justice Benjamin in the particular case that was
pending the entire election between A.T. Massey and
Caperton.   Id. at 873–74.    Caperton argued that the
due process clause required Justice Benjamin's recusal
"based on the conflict caused by Blankenship's
campaign involvement."   Id. at 874.   Justice Benjamin
denied the recusal motion.     Id.   The West Virginia
Supreme Court of Appeals, by a 3–to–2 vote, reversed
the $50 million verdict against A.T. Massey.        Id.
Justice Benjamin joined the majority opinion. Id.



                           4
                                            No.   2017AP2132.akz

     "Caperton sought rehearing, and the parties moved
for disqualification of three of the five justices who
decided the appeal."     Id.   In particular, Caperton
again moved to disqualify Justice Benjamin.       Id. at
875.    Justice Benjamin denied the motion.          Id.
Justice Elliot Maynard, who joined the three-justice
majority opinion, granted Caperton's recusal motion
because "[p]hotos had surfaced of Justice Maynard
vacationing with Blankenship in the French Riviera
while the case was pending."      Id. at 874.    Justice
Larry Starcher, one of the two dissenting justices,
"granted [A.T.] Massey's recusal motion, apparently
based on his public criticism of Blankenship's role in
the 2004 elections."       Id. at 874–75.      The West
Virginia Supreme Court of Appeals subsequently granted
rehearing.    Id. at 875.      Justice Benjamin, then
serving as acting chief justice, selected two West
Virginia circuit judges to replace the two recused
justices on the case between Caperton and A.T. Massey.
Id. . . . The West Virginia Supreme Court of Appeals
again voted 3–to–2 to reverse the $50 million verdict
against A.T. Massey.    Id. at 875.     Justice Benjamin
again joined the majority.    Id.    Caperton petitioned
the United States Supreme Court to review Justice
Benjamin's denial of its recusal motions.

     The   United   States   Supreme   Court  granted
certiorari to determine "whether the Due Process
Clause of the Fourteenth Amendment was violated when
[Justice Benjamin] denied a recusal motion."   Id. at
872.   The Supreme Court determined "that, in all the
circumstances of [that] case, due process require[d]
recusal." Id.

     The United States Supreme Court concluded that
there was a serious risk of Justice Benjamin's actual
bias in sitting on Caperton because: (1) the case had
been pending since before Justice Benjamin was
elected; (2) the jury verdict in that case was $50
million; (3) if elected, Justice Benjamin would be
sitting on the court that would review this $50
million verdict; (4) Blankenship's extraordinary $3
million expenditures supporting Benjamin dwarfed the
amount spent by both campaign committees combined; (5)
Blankenship's $3 million expenditures exceeded the
expenditures   of   all  other   Benjamin    supporters
combined;    and   (6)   Blankenship's    $3    million
expenditures had a "significant and disproportionate
influence" in helping Benjamin win a close election.
                           5
                                                                         No.   2017AP2132.akz

      See Caperton, 556 U.S. at 883–86.  The Supreme Court
      emphasized that "[t]he temporal relationship between
      the campaign contributions, the justice's election,
      and the pendency of the case [was] also critical."
      Id. at 886.
Herrmann, 364 Wis. 2d 336, ¶¶129-36 (Ziegler, J., concurring);

see   also       Allen,        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


                                               6
                                                                   No.    2017AP2132.akz


litigant seized upon that opportunity by trying to correspond

with and influence the judge through the unprotected Facebook

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

it is this objectively demonstrated attempt by a litigant to

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

pending proceeding that is at issue.                       Furthermore, while not

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

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

supporting the motion is ample, but the decision denying the

motion for recusal is exceedingly lean.                 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.

                                           7
                                                                    No.     2017AP2132.akz


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

                                              8
                                                                 No.    2017AP2132.akz


Supreme Court of Appeals of West Virginia would consider the

appeal in the case, Blankenship decided to support an attorney

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

Supreme    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

                                           9
                                                                  No.    2017AP2132.akz


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

decision.       Carroll    offered,        and   Judge   Bitney    personally         and

affirmatively accepted, access to off-record facts relevant to

the litigation during the time when he was deciding whether she

was the more fit parent.

       ¶77    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

                                           10
                                                                              No.   2017AP2132.akz


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.



                                                 11
                                                                               No.    2017AP2132.akz


      ¶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

                                                 12
                                                                 No.   2017AP2132.akz


substance of the interaction between Miss Carroll and the Court

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

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

Judge    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.

                                          13
                                                                      No.    2017AP2132.akz


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
                                            14
                                                                 No.    2017AP2132.akz


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

                                          15
                                                                   No.     2017AP2132.akz


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

                                             16
                                                                          No.    2017AP2132.akz


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

least      20    times;      (8)    those      interactions          included    information

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

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

posted on her account about domestic violence, showed that she

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

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

domestic violence, an issue which was highly relevant to the

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

disclose the Facebook friendship, or disclose the interactions;

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

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

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

had       engaged       in    domestic         violence        against         Carroll,     was

overwhelmingly          in    favor       of   Carroll,        and    uprooted      the    pre-

existing physical placement of the child.5

      ¶87       Under     Caperton,       this       perfect    storm     of    extreme     and

extraordinary             facts,          viewed         objectively,            undoubtedly
demonstrates a serious risk of actual bias.

                               C.     Judges And Facebook

      ¶88       The   Preamble       to     the   Wisconsin          Supreme    Court     Rules

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

                 Our legal system is based on the principle that
      an        independent, fair and competent judiciary will

      5In 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.

                                                17
                                                            No.   2017AP2132.akz

      interpret and apply the laws that govern us. The role
      of the judiciary is central to American concepts of
      justice and the rule of law.        Intrinsic to all
      provisions of this Code are the precepts that judges,
      individually and collectively, must respect and honor
      the judicial office as a public trust and strive to
      enhance and maintain confidence in our legal system.
      The judge is an arbiter of facts and law for the
      resolution of disputes and a highly visible symbol of
      government under rule of law.
SCR ch. 60 Preamble.        The Code then sets forth a series of

ethical rules that judges must follow.           A judgeship carries with

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

and to justice.

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

does not automatically constitute a violation of due process.

Whereas due process violations address serious risks of actual

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

no actual bias.     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
                                       18
                                                             No.   2017AP2132.akz


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

                                      19
                                                                              No.   2017AP2132.akz


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.



                                                  20
                                                                         No.    2017AP2132.akz


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

                                              21
                                                               No.    2017AP2132.akz


current and future [electronic social networking] capacities——

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

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

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

then   that      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.
                                           22
                                                                   No.     2017AP2132.akz


    ¶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.




                                            23
                                                                             No.     2017AP2132.rfd

    ¶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,

                                                 1
                                                                             No.      2017AP2132.rfd

897 (Fla. 2018)) ("No reasonably prudent person would fear that

she could not receive a fair and impartial trial based solely on

the fact that a judge and an attorney appearing before the judge

are Facebook 'friends' with a relationship of an indeterminate

nature."); ABA Formal Op. 13-462 at 2-3 ("Simple designation as

an [electronic social media] connection does not, in and of

itself,     indicate         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.



                                                 2
                                             No.   2017AP2132.rfd

    ¶103 I am authorized to state that Justice BRIAN HAGEDORN

joins this concurrence.




                             3
                                                                      No. 2017AP2132.bh


      ¶104 BRIAN       HAGEDORN,   J.        (dissenting).            For   most     of

American history, the United States Constitution was understood

to say close to nothing about judicial recusal.                        This area of

law, with a few extremely narrow exceptions, was left to state

regulation and oversight.           But as it has in many areas, the

judiciary began to expand the constitutional footprint, inch by

inch, and lately, step by step.              Today's decision continues the

march away from the original public meaning of our Constitution,

and greatly risks merging ordinary judicial recusal questions

with the narrow proscriptions of the Due Process Clause.

      ¶105 The question in this case is not whether, under an

objective   standard,      Judge   Bitney      would    be     able    to   hold    the

balance nice, clear, and true in light of the circumstances.

The   question    is   likewise    not   whether       Judge    Bitney      may    have

transgressed the recusal standards in the Wisconsin Statutes or

Code of Judicial Conduct.           Rather, the question presented is

whether the record in this case demonstrates that the Fourteenth

Amendment's Due Process Clause required Judge Bitney's recusal,
and therefore whether Miller's due process right to an impartial

tribunal    was   violated.        Under      the   governing         United   States

Supreme Court precedent, recusal is constitutionally required

only when actual bias is present or when the facts of a case are

so extreme as to constitute a serious risk of actual bias.

      ¶106 Miller claims this constitutes one of the rare cases

where the risk of actual bias is constitutionally intolerable.

I disagree.       This is a relatively normal appearance of bias
case.   Granted, given its intersection with modern social media,

                                         1
                                                                           No. 2017AP2132.bh


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.

       I also join Justice Dallet's concurrence regarding
       1

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.

                                                 2
                                                                  No. 2017AP2132.bh


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




                                       3
                                                                       No. 2017AP2132.bh


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).

                                           4
                                                                     No. 2017AP2132.bh


decision in a case would have a "clear and immediate effect of

enhancing both the legal status and the settlement value of" the

judge's     own    cases   against       the    same   defendant).       Around      the

middle of the 20th century, the Supreme Court also found that

due process is violated by a "judge who was at the same time the

complainant, indicter and prosecutor."                     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

                                            5
                                                                  No. 2017AP2132.bh


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
                                          6
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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.

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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.

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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

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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

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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.,




      3The concurrence of Justice Ann Walsh Bradley tries to take
Caperton even further.      She would seemingly transform many
appearance of bias questions into constitutional claims.      And
separately, she also argues that Caperton is inconsistent with
our decision in State v. Henley, 2011 WI 67, 338 Wis. 2d 610,
802 N.W.2d 175 (per curiam), confirming this court's long-
standing rule leaving recusal decisions to the individual
justice.   In particular, she argues that the recusal decisions
of justices must likewise be subject to the same objective due
process review——but by the other members of this court. Henley
is settled law, and there are good reasons to keep it that way.

                                              11
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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.

                                    12
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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

                                             13
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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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