Judge's decision to friend' litigant prompts review of ethical use of social media.


Byline: Michaela Paukner, mpaukner@wislawjournal.com

In a courtroom video seen by millions of people around the world, Judge Tammy Kemp hugs former Dallas police officer Amber Guyger and hands her a bible. The white former officer had just been sentenced to 10 years in prison for murdering her black neighbor. Kemp's hug prompted outrage on social media and a complaint from the Freedom From Religion Foundation. The foundation has asked the Texas State Commission on Judicial Conduct to investigate Kemp's actions, saying they "overstepped judicial authority."

With the rise of social media, dozens of states are grappling with how services like Facebook fit with the Code of Judicial Ethics.

A case now before the Wisconsin Supreme Court will give the justices a chance to adopt a new rule or clarify existing rules about judges' use of social media. It marks the first time Wisconsin's courts are discussing social media and whether or not such services provide an opening to judicial bias.

The appeal in Miller v. Carroll mainly concerns whether Baron County Judge J. M. Bitney's decision to become Facebook "friends" with a litigant in a case before him should lead to judicial disqualification because of the appearance of impartiality and ex parte communications. When the case went up for appeal, the appellate judges overturned Bitney's initial ruling in favor of the litigant.

"We caution that judges should recognize that online interactions, like real-world interactions, must be treated with a degree of care," wrote appellate Judge Mark Seidl.

Daniel Blinka, professor at Marquette University Law School, said communication between judges and other parties has become much more complex in the age of social media.

"These problems have always been around," said Daniel Blinka, professor at Marquette University Law School. "They were just easier to navigate."

Blinka said avoiding ex parte communication was much easier in the 1990s and earlier, when judges and involved parties would usually only speak in person. A judge could respectfully decline to comment during chance in-person encounters, and in chambers, require an attorney to wait to have a conversation until other interested parties were present. Now, judges must consider how a decision to communicate, or not communicate, with someone online can be perceived.

"It's not just being impartial," said Blinka. "It's avoiding the appearance of impartiality."

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