A Federal Judge And His Twitter Account: A Cautionary Tale
Do you think this judge crossed the line in his use of social media?
Lawyers and Twitter can be a dangerous combination. Just ask this Biglaw partner, or this one.
Judges on Twitter raise issues as well. I’ve previously written in defense of judicial tweeting — based in part on exemplars like Justice Don Willett of Texas, who’s entertaining, enlightening, and ethical in his tweets. But a case currently pending before the U.S. Court of Appeals for the Ninth Circuit does present concerns.
United States v. Sierra Pacific Industries arises out of the Moonlight Fire, a 2007 wildfire that scorched almost 65,000 acres of California land before its containment. The federal government blamed the fire on Sierra Pacific, a lumber producer that the government accused of negligence in the hiring and supervision of a logging contractor. Sierra Pacific settled with the government, without admitting liability. But now, in the wake of serious doubts about the propriety of the government’s investigation, Sierra Pacific seeks to vacate the settlement, arguing that it was reached as the result of a fraud on the court.
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Judge William B. Shubb (E.D. Cal.) denied Sierra Pacific’s motion to terminate the settlement. Sierra Pacific is now appealing that ruling to the Ninth Circuit. Here’s the Twitter issue, raised on page 80 of Sierra Pacific’s opening brief (citations and footnotes omitted):
Judge Shubb issued his order denying Defendants’ motion on April 17, 2015, at 2:45 p.m. Over the next two hours, the Sacramento AUSAs used their “@EDCAnews” Twitter account to broadcast eight congratulatory Tweets concerning Judge Shubb’s order and the case’s merits to their office’s Twitter followers. Defendants have since confirmed that, through his then-public Twitter account, titled “@nostalgist1,” Judge Shubb “followed” @EDCAnews and thus received those Tweets. The mere existence of social network relationships between a judge and one of the parties appearing before him creates an appearance of bias and raises “significant concern” regarding the risk of ex parte communications. Those concerns materialize when a “followed” party posts Tweets regarding the case’s merits and the judge’s reasoning, which are then directed to the judge in his capacity as a follower.
This might seem like pretty minor stuff. One could dismiss Sierra Pacific’s complaints as little more than hurt feelings — especially when the company complains in a footnote that “Sierra Pacific has a Twitter account as well, which Judge Shubb does not follow.” But there’s more going on here:
Additionally, that evening at 9:51 p.m., Judge Shubb completed the feedback loop by posting on his @nostalgist1 public Twitter account: “Sierra Pacific still liable for Moonlight Fire damages.” Just beneath this post, Judge Shubb linked to an article with the same title from the Central Valley Business Times.
Contrary to Judge Shubb’s imprimatur, the title was false. Sierra Pacific was never found liable and has paid no damages. Indeed, [retired Superior Court] Judge [Leslie C.] Nichols, the only neutral to evaluate the merits of this joint prosecution, found the government’s partner unable to make a prima facie case against Defendants. In the federal settlement, Defendants expressly disclaimed liability and have never paid a cent in damages.
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Now this strikes me as problematic. Judges shouldn’t tweet about cases pending before them, even if the tweets are just links to news articles. This argument by Sierra Pacific seems persuasive to me:
Judge Shubb’s inaccurate public post violates Canon of Judicial Conduct 3A(6) and only increases the appearance of bias. It also prejudices Sierra Pacific and all Defendants in the pending state court appeal regarding the Moonlight Fire. When a judge selectively posts third-party communications pertaining to his or her cases, it necessarily creates the appearance of bias, especially with respect to articles that are inaccurate and prejudicial. The act of picking and choosing one article of many reveals a willingness to step out of the role of a neutral. By assenting to and posting a particular article, the court entangles itself with the message and slant of that article, thereby creating the appearance of having picked sides or of favoring one spin over another.
Sierra Pacific drops a footnote imagining the shoe on the other foot:
The government would, of course, also have cause for concern if Judge Shubb Tweeted “Prosecutors Burn Down The Law” and linked to the Wall Street Journal’s Moonlight Fire editorial with that title, or if he had Tweeted “A wildfire of corruption” and linked to the Washington Post’s Moonlight Fire opinion piece of that title.
After the government sent Judge Shubb a letter informing him that his Twitter usage was being raised on appeal, Judge Shubb changed his account from “public” to “protected,” meaning that only approved followers can see his tweets. But he didn’t delete his account; you can see it (and send him a follow request) here.
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I’m troubled by Judge Shubb’s tweeting (for the reasons set forth in Sierra Pacific’s Ninth Circuit brief and motion for judicial notice). As Judge Simone Marstiller notes in Social Media 101 for Judges (gavel bang: Justice Willett), judges on Twitter should exercise good judgment, self-censoring when appropriate: “Before sending or responding to a tweet, DO ask yourself whether your statement could be seen as inappropriate, or could convey partiality or bias.”
But perhaps I’m being a stick in the mud? And we don’t yet have the government’s brief, which will presumably defend Judge Shubb’s actions. Readers, what do you think?
UPDATE (11/30/2015, 5:00 p.m.): Here is the government’s defense of Judge Shubb (if, in fact, it was Judge Shubb doing the tweeting — which the government argues isn’t a proper subject for judicial notice). Thoughts?
Judge Shubb's Twitter activity in the Sierra Pacific case is:
Loading ...Prosecutors Burn Down the Law [Wall Street Journal]
A Wildfire of Corruption [Washington Post]
Social Media 101 for Judges [National Association of Women Judges]
United States v. Sierra Pacific Industries: Appellants’ Opening Brief [U.S. Court of Appeals for the Ninth Circuit]
United States v. Sierra Pacific Industries: Appellants’ Motion for Judicial Notice [U.S. Court of Appeals for the Ninth Circuit]
