{"id":1128,"date":"2017-07-14T18:14:18","date_gmt":"2017-07-14T22:14:18","guid":{"rendered":"https:\/\/abovethelaw.com\/?p=470735"},"modified":"2017-07-14T18:14:18","modified_gmt":"2017-07-14T22:14:18","slug":"did-this-judges-tweeting-constitute-reversible-error","status":"publish","type":"post","link":"https:\/\/abovethelaw.com\/legal-innovation-center\/2017\/07\/14\/did-this-judges-tweeting-constitute-reversible-error\/","title":{"rendered":"Did This Judge’s Tweeting Constitute Reversible Error?"},"content":{"rendered":"
\"\"

Judge William B. Shubb<\/p><\/div>\n

There are any number of things a trial judge can do that are ill-advised, unwise, or just plain stupid. Not all of them will constitute reversible error.<\/p>\n

Back in November 2015, I wrote about an interesting Ninth Circuit appeal in which the appellants sought to make an issue of some tweeting<\/a> allegedly done by Judge\u00a0William B. Shubb<\/a> (E.D. Cal.). I found some of Judge Shubb’s tweets to be troubling, and so did Above the Law readers. In our online poll<\/a>, 84 percent of you voted the tweets in question to be improper.<\/p>\n

Now the Ninth Circuit has spoken, and while it didn’t exactly bless the tweets, it did not find reversible error. From the Sacramento Bee<\/a> (via How Appealing<\/a>):<\/p>\n

[Appellant Sierra Pacific] raised questions about a tweet that Judge Shubb allegedly sent out hours after his decision in the case linking to a news story. The Twitter account, which does not include the judge\u2019s name, tweeted out the news link at 9:51 p.m. the night of the judge\u2019s order, the company argued, showing that Shubb had revealed \u201ca willingness to step out of the role of a neutral.\u201d<\/p>\n

The 9th Circuit panel didn\u2019t buy that argument, writing that \u201cthe allegations do not warrant retroactive recusal even if the judge is the owner of the account.\u201d<\/p>\n

The Twitter account, @Nostalgist1<\/a>, listed 335 tweets as of Thursday, with 36 followers. The account\u2019s tweets and profile information were set to \u201cprotected\u201d and viewable only to confirmed followers.<\/p><\/blockquote>\n

As you can see if you look at the opinion<\/a> of Chief Judge Sidney Thomas (joined by Judges Mary Murguia and Jon P. McCalla), the panel agreed with much of the government’s defense<\/a> of the tweeting. The Ninth Circuit didn’t get into whether the tweets could be the subject of judicial notice (the government’s first argument), but instead concluded that the tweets were insufficient to create an appearance of bias requiring recusal. (Note that, because Sierra Pacific didn’t raise the issue below, the panel reviewed just for plain error — a good example of former Ninth Circuit clerk Mark Herrmann’s point that the standard of review can decide cases<\/a>.)<\/p>\n

But just because you can<\/em> tweet something doesn’t mean that you should<\/em>. Instead, exercise good judgment and, on occasion, self-censor. Covfefe?<\/a><\/p>\n

“Timber giant loses in court again”<\/a> [How Appealing]
\nUnited States v. Sierra Pacific Industries, Inc.<\/a> [U.S. Court of Appeals for the Ninth Circuit]<\/p>\n

Earlier<\/strong>:<\/p>\n