Facebook and Twitter logos. Photo Credit: Mike Scarcella/ ALM

The U.S. Supreme Court should wait before wading into questions about how judges are using social media, the U.S. Department of Justice told the justices in a case that puts a spotlight on a California federal judge's Twitter account.

The timber company Sierra Pacific Industries Inc. is trying to undo a $122 million settlement in part based on the argument that the trial judge's Twitter activity—”following” prosecutors and tweeting a news story link about one of his rulings—created an appearance of bias.

U.S. Solicitor General Noel Francisco this week urged the justices not to grant review in the case Sierra Pacific Industries v. United States. Francisco said there was no error in the judge's allegedly following the public Twitter account of a U.S. Attorney's Office.

U.S. Solicitor General Noel Francisco. Credit: Diego M. Radzinschi/ The National Law Journal

“[T]he U.S. Attorney's Office's public tweets are 'news items released to the general public, intended for wide distribution to an anonymous public audience,'” Francisco wrote. “A district court's 'following' such an account does not generate an appearance of bias any more than watching the office's press conferences on television or reading about the office's activities in the newspaper.”

The company, represented by Kirkland & Ellis, is appealing a decision by the U.S. Court of Appeals for the Ninth Circuit that upheld the settlement. The government suit stemmed from the 2007 Moonlight Fire that burned nearly 65,000 acres in the Plumas National Forest in Northern California. The company sought to undo the settlement as a “fraud on the court” because of alleged government misconduct.

Last July, the Ninth Circuit said Sierra Pacific's allegations that government lawyers withheld pertinent information and induced witnesses to provide misleading testimony failed to make a claim rising to the level of “fraud on the court.” The appellate court also rejected Sierra Pacific's argument that Twitter posts by the trial judge, William Shubb, who was overseeing the case, showed bias and warranted a recusal.

“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,” Ninth Circuit Chief Judge Sidney Thomas wrote.

Kirkland & Ellis partner Paul Clement, counsel to Sierra Pacific, has asked the high court to decide two issues that he said “go to the very heart of the integrity and impartiality of our justice system. One is as old as the Republic; the other is unique to our social media age.”

Clement argues Shubb should have recused himself retroactively because he follows prosecutors on social media and because he tweeted a link to a story about the proceedings in front of him. The petition also raises questions about whether the judge should have considered post-settlement evidence in his ruling on Sierra Pacific's claims about “fraud on the court.”

On the issue of Shubb's tweet, Clement said in his petition: “This 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. The technology may be new, but the principle is not: Concerns about impartiality are at their zenith when the citizen faces off against the prosecutor.”

The news story Shubb reportedly tweeted was headlined: “Sierra Pacific still liable for Moonlight Fire damages.” Sierra Pacific entered a settlement with the government that “expressly denied liability,” according to Clement.

“While that is subtlety that might be lost on an editor seeking a pithy headline, it was not lost on Judge Shubb in tweeting it,” Clement told the Supreme Court. “Having the 'impartial' federal judge 'follow' only the federal prosecutors and 'tweet' about his ruling favoring the prosecutors (via an inaccurate article, no less) is one social media trend our justice system cannot tolerate.”

Francisco, in the Justice Department's brief, said Sierra Pacific cites no authority for its argument that “following” those public news dispatches on Twitter generates an appearance of bias. “And the American Bar Association, which authors the Model Code of Judicial Conduct, has advised that closer electronic media connections—such as judges and litigants identifying each other as 'friends' on Facebook—do not ordinarily require disclosure, much less recusal,” Francisco added.

Francisco told the justices that questions surrounding judges' use of social media “would benefit from further development in the lower courts” before the Supreme Court takes up a case raising these issues.

“Moreover, this case would be an inappropriate vehicle for taking up the subject because the case's plain-error posture would make it unnecessary for this court to decide the appropriate bounds of judicial social media use in order to reject petitioners' plain-error challenge,” Francisco wrote.

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