Social media activities and the appearance of bias

  • United States
  • 07/24/2018
  • Norton Rose Fulbright LLP © 2018. All Rights Reserved.

By Joy Wang (US) on July 24, 2018

On June 21, 2018, the U.S. Supreme Court declined to decide the question of whether a district court judge is required to retroactively recuse himself when he allegedly follows the federal prosecutors on Twitter and, within hours after denying relief to the defendants, tweeted a link to an allegedly erroneous news article with a title implying that the defendants were liable. The relevant 9th Circuit opinion here is U.S. v. Sierra Pacific Industries, Inc., which was published on July 13, 2017.Background of U.S. v. Sierra Pacific Industries, Inc.

The case arose from a forest fire, later known as the Moonlight Fire, which burned down 46,000 acres of the Plumas and Lassen National Forests in northern California on September 3, 2007. In August 2009, the U.S. government brought a civil action against private forestry operators, Sierra Pacific Industries, Inc. (“Sierra Pacific”), Howell’s Forest Harvesting Company (“Howell”), and other individuals, seeking nearly $800 million in damages for the fire. The California Attorney General’s office also filed a state action against the defendants in the same month. Although the U.S. Attorney and the California Attorney General entered into a joint prosecution agreement, the two cases proceeded separately.

Three days before the trial in the federal court, the defendants settled with the federal government. The defendants agreed to pay $55 million and transfer 22,500 acres of land to the federal government. The federal case was dismissed with prejudice. The settlement agreement also included a term under which the parties acknowledged that facts and potential claims regarding this case may be different from facts believed to be true at the moment, and each party would accept and assume the risks of such possible differences and agree that the settlement agreement shall remain effective regardless.

The state case continued after the settlement of the federal case, and uncovered instances of alleged misrepresentation and fraud unknown during the federal proceedings. The state case was ultimately dismissed with prejudice before going to trial, but the California Superior Court imposed sanctions on the California Attorney General’s office for having “engaged in ‘pervasive misconduct’ and ‘a systematic campaign of misdirection with the purpose of recovering money from the Defendants.’”

The defendants then filed a motion for relief from judgment in the federal court under the Federal Rule of Civil Procedure 60(d)(3), arguing that the government’s alleged misrepresentations throughout the investigation and litigation constituted fraud on the court. In the motion, the defendants re-alleged the misrepresentations they had raised before the settlement, and added claims of newly-discovered fraud. Concluding that none of the allegations constituted fraud on the court, the federal district court denied the defendants’ Rule 60 motion.

On the same day the Rule 60 motion was denied, the U.S. Attorney’s Office for the Eastern District of California posted eight tweets about the outcome of the case on social media. That evening, a Twitter account that follows the U.S. Attorney’s Twitter account and allegedly owned by the federal district judge who decided the Rule 60 motion tweeted a link to a news article about the Moonlight Fire. The tweet contained the link and the title of the news article, “Sierra Pacific still liable for Moonlight Fire damages.”

The defendants appealed the denial of the Rule 60 motion in the 9th Circuit. They argued that the federal district court erred in denying the motion and the judge should retroactively recuse from the case due to the activities of the Twitter account allegedly owned by him.

The 9th Circuit Decision

The 9th Circuit affirmed the district court’s denial of the motion. A panel of the circuit held that the district court properly concluded that Sierra Pacific did not demonstrate fraud on the court. With regard to the social media claim, the panel reviewed it under the plain error standard after determining that the defendants could have raised the issues relating to the judge’s social media use in the district court following either of the disputed social media accounts’ pre-judgment tweets.

According to the panel, even assuming the federal judge is the owner of the Twitter account at issue, the account’s activities on social media did not warrant the judge’s retroactive recusal for two reasons. First, Twitter is a news and social networking service generally used by news organizations, celebrities or high-up government officials as one of the official means of communication, and the mere fact that the judge allegedly “follows” the federal prosecution’s Twitter account does not evidence the personal relationship needed for recusal. Second, the tweet posted by the account concerning the Moonlight Fire consisted only of the title and link to a publicly available article about the case, without any commentary, and under the plain-error standard of review, the judge did not plainly err in not retroactively recusing himself after tweeting about this article.

Nevertheless, the panel stated in its opinion that “this case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases.” The panel “reiterate[d] the importance of maintaining the appearance of propriety both on and off the bench.”

Petition to the U.S. Supreme Court

In its petition to the U.S. Supreme Court, the defendants urged review of the 9th Circuit opinion based on two grounds, one of which is that under “the totality of the circumstances,” the district court judge’s social media activities warranted “more than a caution” – they required recusal. According to the defendants, the Supreme Court should “make clear that a party facing a billion-dollar government civil action should not have to face a federal judge ‘following’ the local federal prosecutors or tweeting about his rulings.” In response, the U.S. Attorney argued that “the questions surrounding social media use by judges would benefit from further development in the lower courts before any intervention by [the U.S. Supreme Court].” The U.S. Attorney also stated that this case is an inappropriate vehicle for taking up the issue relating to judges’ use of social media because of the plain-error standard of review.

Rule 10 of the Rules of the Supreme Court of the United States makes clear that “[r]eview on a writ of certiorari is not a matter of right, but of judicial discretion,” and a petition will be granted “only for compelling reasons.” The Supreme Court ultimately denied review of the 9th Circuit decision in U.S. v. Sierra Pacific Industries, Inc. Consistent with its general practice, the Court did not specify reasons for its denial.

Lessons Learned

In alignment with the 9th Circuit panel’s comment, we would like to remind every public figure to use caution when engaging in social media activities. As the role of social media becomes more dominant in our everyday life, what is considered acceptable and not acceptable on social media needs to be re-examined. But before there is any clarity on the implications behind specific social media activities, it is wise to keep the engagement minimal and refrain from any ways of participation in social media that may appear questionable.

https://www.socialmedialawbulletin.com/2018/07/social-media-activities-appearance-bias/