Judge's Twitter Activities Did Not Constitute Bias

Judge's Twitter Activities Did Not Constitute Bias

  Monday, July 17, 2017    Julie Tappendorf

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Recently, the Ninth Circuit Court of Appeals addressed an argument that the sitting judge in a case should have been recused because of his social media activities.  U.S. v. Sierra Pacific Indus. (9th Cir. July 13, 2017). After being found liable for damages relating to forest fires in California, the defendants (2 forestry operators) appealed the decision, requesting that the case be reversed on several grounds, including bias on the part of the judge for the following activities:

1. Following a public Twitter account maintained by the U.S. Attorney constituted improper ex parte communications; and
2. Tweeting a link to an allegedly erroneous news article required reversal of the district court's decision.

The Court first held that the judge's alleged "following" of the U.S. Attorneys' office on Twitter did not prove bias, stating as follows:

[T]he fact that an account holder "follows" another Twitter user does not evidence a personal relationship and certainly not one that, without more, would require recusal.

The Court next addressed the claim that following the U.S. Attorneys' Twitter account constituted improper ex parte communications between the judge and the U.S. Attorneys' office, in the context of an opinion from the Code of Conduct applicable to judges that states:

[C]oncerns of improper communication arise in the context of the exchange of frequent messages, 'wall posts', or 'tweets' between a judge or judicial employee and a 'friend' on a social network who is also counsel in a case pending before the court.

In the Court's opinion, the mere "following" of the States Attorneys' Twitter account did not rise to the level of social media communications that would fall within the Code of Conduct.

Finally, in the Court's opinion, the judge's tweet that linked to a news article about the case did not mandate recusal since the tweet did not contain only the title and link, and no commentary from the judge. The Court based its opinion in part because the Twitter account in question did not publicly identify the judge as the account holder. It's not clear if the outcome would have been different if that had not been the case - in other words, if the account was clearly identified as the judge's Twitter account.  

The Court concluded its opinion with some advice to judges on social media activities:

Nonetheless, this case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench.

Post Authored by Julie Tappendorf