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You follow a judge on Twitter. (There's plenty of them to be found.) He tweets about life on the bench. You tweet about cats and the occasional courtroom victory. The judge even retweets you on occasion.
If this tweeting takes place while you have a case pending before said judge, have you both engaged in ex parte communication or created the appearance of bias? At least one Ninth Circuit appellant thinks so.
It All Starts With a Moonlight Fire
The facts on the ground are fairly simple. In 2007, the Moonlight Fire spread through northern California, causing $31 million in damages and burning through almost 65,000 acres. The fire was blamed on Sierra Pacific Industries and the logging company soon entered into a settlement that cost it $55 million and 22,500 acres of land. But, after serious claims of prosecutorial fraud were raised, Sierra Pacific sought to terminate the settlement.
That motion ended up before Judge William B. Shubb in the Eastern District of California. Judge Shubb refused to terminate the settlement, ruling that claims of fraud were "wholly devoid of any substance."
Were Those Tweets #Ex_Parte?
Enter Twitter. As Above the Law notes, Sierra Pacific's appeal to the Ninth Circuit makes some incendiary claims about Judge Shubb's Twitter habits. Shubb tweets under the then-public @nostalgist1 handle and follows the Sacramento AUSA account, @EDCAnews. Those AUSAs, excited by their win, tweeted several self-congratulatory messages, which Judge Shubb could have seen. According to Sierra Pacific's opening brief:
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.
If you ask us, it's a pretty weak argument. Twitter is a public platform and both the judge and prosecutors' Twitter accounts were public. The AUSAs' tweets were no more "directed to" the judge than they were any follower or even the general public. Imagine, for example, that Sierra Pacific had published an op-ed decrying the prosecutors' alleged fraud -- in a paper that Judge Shubb subscribed to. It would be hard to say that crossed any lines. The same, we think, can be said of Twitter follows.
Creating the Appearance of Bias?
But forget the follows -- there's also the tweets. As Sierra Pacific notes, the same day that the AUSA's were tweeting of their victory, the judge tweeted out "Sierra Pacific still liable for Moonlight Fire damages" with a link to an online article with that title. As the company notes, the headline was inaccurate; Sierra Pacific never accepted liability for the fire.
And here they have a point. Judges shouldn't publically comment on cases before them. They further shouldn't comment on them inaccurately. While a follow isn't enough to show bias or risk ex parte communications, in our eyes, it's hard to say that these tweets don't create the appearance of bias. Sierra Pacific writes, and we agree, that:
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 slat of that article, thereby creating the appearance of having picked sides or of favoring one spin over another.
The takeaway? If you want to play it safe, put your judge-based social media on pause when you're in the middle of litigation. And if you're a judge, exercise some common sense and don't publically comment on your cases, even if it's just sharing an article.