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District Court Judge's Retweet Doesn't Require Recusal, Nor Reversal

By George Khoury, Esq. | Last updated on

In a recent decision by a three judge panel at the Ninth Circuit Court of Appeals, judges that use Twitter got a little bit more clarity on when Tweeting violates judicial ethics.

The case involved an appeal of a motion for relief from judgment filed by Sierra Pacific Industries, a lumber producer, after a settlement related to a 2007 wildfire. Sierra, for their appeal, alleged that the district court erred in refusing to grant relief from the settlement that the company agreed to with the government.

The underlying motion for relief was based on a whole host of alleged fraudulent conduct on the part of the government lawyers, and curiously, on one tweet from an anonymous account, allegedly controlled by Judge Shubb, who presided over the motion.

Tweeting Behind the Bench

Sierra claimed that after their motion for relief was denied by Judge Shubb, the jurist retweeted out a news article from the U.S. Attorneys' Office with a misleading headline, from an anonymized Twitter account: @nostalgist1. The headline imputed that Sierra was liable for the fire, when, in fact, the settlement agreement disclaimed liability, and did not even characterize the multi-million dollar settlement amount as damages.

Sierra also alleged that the judge, due to his supposed Twitter account following the U.S. Attorneys' Office official Twitter account, was conflicted from ruling on the motion, and should have recused himself.

The Ninth Circuit panel did not find any of Sierra's claims convincing. Regarding the claims of fraud on the part of the government lawyers, the court noted that Sierra knew of all the alleged conduct prior to settlement, and as such, should not have settled if they wished to preserve their claim. Additionally, the court, in reviewing the terms of the settlement agreement, found that Sierra had specifically waived their right to move for relief by releasing all "unknown claims" as part of the agreement.

As to the Tweet, the court found that the timing of the Tweet, logically, could not prove any ex parte communication, or improper conduct, occurred. As the Tweet was allegedly retweeted by the judge after the motion was decided. Further, the court noted that the retweet was devoid of comment, and the account did not have any personally identifying information. The court noted that even had this account been verified as belonging to Judge Shubb, Sierra's request for retroactive recusal, and relief from the judgment, would still not be granted.

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