There are over 1.82 billion daily active Facebook users and over 2.74 billion monthly active Facebook users. Instagram has over 1 billion active monthly users and over 500 million daily active users. Twitter has over 166 million daily active users. We have an entire generation that has never known life without social media. Elections are now won, lost, or, at a minimum, influenced by social media. State court judges, in most states, are elected officials and must run for re-election. While federal politics dominate social media headlines, we recently addressed the issue of whether a judge could be Facebook “friends” with a party in his courtroom.
The case involved a custody dispute in Barron County Wisconsin. The primary issues were which parent would have primary physical placement of the young son and whether the mom was permitted to move from the area due to physical abuse that resulted in a ten-year restraining order against the father. Following a very contentious two-day evidentiary hearing, but before the judge had issued his ruling, the mom Facebook “friend” requested the judge, who accepted the invitation. Shortly thereafter, the judge issued his ruling siding in favor of the mother.
Now, before you argue that there is no way that a judge should ever be Facebook “friends” with a litigant, consider a couple of things. The judge had over 2,000 “friends” on Facebook and is an elected official who must run for re-election. There were no private messages between the two or public posts regarding the case. The judge also stated on the record that he had made his mind up on the case before accepting the “friend” request which had no impact on his decision. And a separate judge in the same County had found the father had abused the mother to such an extent that he issued a ten-year restraining order protecting the mother.
The father appealed the decision to the Court of Appeals. The Court of Appeals ruled that the Facebook “friendship” violated the father’s due process clause rights. Due process had before only been utilized when a judge had a financial interest in the outcome of the case, had been both the prosecutor and the judge, and more recently, in a case in which a state supreme court justice had received over $3,000,000.00 in campaign donations from a party that later appeared in his court. Suffice to say, the due process clause was infrequently utilized to disqualify a judge.
The Wisconsin Supreme Court granted our petition on the case and a highly divided court issued a 4-3 decision affirming the Court of Appeals’ Decision. The Wisconsin Supreme Court’s opinion provides an interesting history of the due process clause, ultimately ruling, the first such supreme court in the County to do so, that a Facebook “friendship” between a party and judge was prohibited by the Constitution. Thus, while a party and judge could actually be friends and a judge and attorney could actually be friends, both of which likely would be constitutionally permitted, this social media “friendship” was prohibited. By the way, this is an entirely separate analysis from whether judges and attorneys are ethically prohibited by our rules of professional conduct/codes of judicial conduct.
The United States Supreme Court denied the petition for further review. As a result, at this point, judges, attorneys, and parties must tread safely while navigating the waters of social media. This issue will likely arise again in the future given the nearly universal use of social media in nearly all aspects of our lives. Stay tuned.