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Conflict of Interest and the Press

CENSORING AN OBJECTIONABLE ARTICLE FROM THE INTERNET

When Chief Judge Carolyn Dineen King of the U.S. Fifth Circuit Court of Appeals dissented from the majority who dismissed Bernofsky's appeal in 2001, she wrote of Judge Berrigan's decision: "a reasonable person might question her impartiality.  I would reverse the judgment and remand with instructions to send the case to another judge."

The Times-Picayune newspaper of New Orleans carried the story on the front page of its May 8th, 2001 edition under the headline, "Judge finds herself on trial."  The respected journalist, Susan Finch, penned the article.

At some point after publication, that article was absent from newspaper databases such as NewsBank and could no longer be retrieved from Internet sources.  In 2016, when Bernofsky decided to reprint the article, he was only able to locate it on archived microfilm created shortly after the article appeared (see video).  Its online absence kept the page-1 story from ever being discovered by anyone who did not already know of its existence.

An explanation of that article's disappearance is important because it would provide a window into the mechanism of how public information can be suppressed.

Its deletion does not appear to be accidental, but rather the result of pressure from an influential party who wanted embarrassing information about them to be removed from the public record.  Either of the parties discussed in that article would have the clout to censor it from Internet databases.

While this story was being prepared, NewsBank was contacted about the article that had been missing from its database for more than 15 years.  Eight days later, NewsBank responded, stating that the article was now added to its database, and that the omission looked like the result of a technical problem rather than an "editorial selection."

The article can now be accessed online.  However, its prior omission does appear to be the result of an "editorial selection" because another, previously-indexed front page article from the same May 8th 2001 edition now appears in duplicate on NewsBank's database, an indication that the subject article had been selectively omitted earlier.

Although one cannot be certain who requested suppressing online access to Finch's article, The Times-Picayune appears to have complied.  If this is so, then it is unfortunate the newspaper would allow such an incident to impugn its long-standing reputation for excellence and integrity.


Judge finds herself on trial

Tulane case prompts conflict-of-interest call

SUSAN FINCH

May 8, 2001

One federal magistrate was an adjunct professor at Tulane Law School.  Another magistrate's wife was a doctor at Tulane Medical Center.  And the district judge a few years earlier had taught at Tulane Law School and sat on the board of the Amistad Research Center, which is housed on the university's Uptown campus.

So when former Tulane Medical School biochemistry professor Carl Bernofsky filed a lawsuit in mid-1998 accusing the university of maligning him to prospective employers after it fired him three years earlier, should any of them have stepped aside?

Citing potential conflicts, or at least the appearance of them, Magistrates Joseph Wilkinson and Lance Africk recused themselves.

U.S. District Judge Ginger Berrigan did not.

Although a divided federal appeals court recently backed Berrigan's decision, Bernofsky plans to pursue the matter.  The case spotlights the ethical calls federal judges must make on whether their professional, personal or financial ties warrant stepping aside in a case to avoid conflicts of interest or the appearance of impropriety.

In keeping the case, Berrigan said her Tulane teaching stint was as a temporary, unpaid volunteer substituting for a fellow judge, and her association with Amistad, which is legally separate from Tulane, ended in 1994.

Before ruling last spring on Tulane's motion to throw out the Bernofsky case, however, Berrigan was picked to teach a three-week course in Greece for Tulane Law School's Summer School Abroad 2000, a job that carried a $5,500 stipend.  Citing this development, Bernofsky again asked Berrigan to disqualify herself.

She declined, and two weeks later Berrigan threw out all the professor's claims against the university, just as she had done with an earlier suit in which he charged his firing was the result of anti-Semitic discrimination by his department chairman.

A judge's dissent

Tulane, which had succeeded in getting Bernofsky's other cases dismissed, accused the former professor of "judge shopping."

But last month, a week after hearing arguments on Bernofsky's appeal, a panel of the 5th U.S. Circuit Court of Appeals upheld Berrigan's dismissal of his case.

On whether Berrigan should have recused herself, the panel divided 2-1.  In a sharp dissent, 5th Circuit Chief Judge Carolyn Dineen King said a reasonable person would have viewed the summer teaching assignment and pay that went with it "as something of a plum."

"She accepted the assignment in the midst of this litigation against the Administrators of the Tulane Educational Fund, indeed on the eve of her decision to grant summary judgment in favor of the Fund," King's dissent said

Under the circumstances, and with no evidence of any change in the relationship between the fund and the law school, "I think that a reasonable person might question her impartiality," King said, adding that she would have reversed Berrigan's judgment and sent the case back to the district court for assignment to another judge.

In light of King's dissent, Bernofsky's attorney has asked the full appeals court to reconsider its April 10 ruling

Lawyer Victor Farrugia said the standard is whether a person on the street would think that poses a potential conflict.  "People on the street, they're appalled the judge decided the case and took the money to go to Greece at the same time," he said.

Lawyer Dane Ciolino, who teaches legal and judical ethics at Loyola Law School, called the case "a close call."

"I could see that to a lay person, Tulane is Tulane is Tulane," Ciolino said.  But to a reasonably educated person, you can realize Tulane Law School is distinct from parts of Tulane involved in this suit."

"There is nothing about being an adjunct professor that would render her biased toward the larger university," he said, adding that in most cases such jobs are for no pay.  "But I could see how a lay person might be concerned."

Federal rules give guidance

Judges routinely struggle with such issues.  Last year, for example, U.S. District Judge Morey Sear stepped aside in an Internet gambling case because he owned stock in one of the defendants, a bank that issues credit cards and accepted charges from offshore "virtual" gambling parlors.

Also last year, the 5th Circuit said U.S. District Judge Carl Barbier abused his discretion in refusing to disqualify himself from a suit filed by the Republic of Panama against the tobacco industry.

The appeals court said "a reasonable person might harbor doubts" about Barbier's impartiality because as president of the Louisiana Trial Lawyers Association, before he was appointed the the bench, his name was included on a motion to file a friend-of-the-court brief on behalf of the Panamanian plaintiffs in a suit against the tobacco companies.

Federal rules governing judges offer some guidance.  In 1975, a new rule took effect requiring recusal in any proceeding in which a judge's impartiality "might reasonably be questioned."

Thirteen years later, in a Louisiana case, the U.S. Supreme Court elaborated and said even the appearance of a conflict of interest is grounds for a judge to be disqualified.

In that decision, the high court said New Orleans District Judge Robert Collins should not have presided over a court battle between a Kenner pharmacist and a company that wanted to build a hospital in Kenner on land owned by Loyola University.  Collins sat on the university's board but claimed he had not remembered the board was involved in negotiations over the land.  Even after the relationship was brought to his attention, he did not step aside, the court noted in ruling against him.

Federal law requires judges to disqualify themselves when they have a financial interest in the subject matter of a case.  Financial interest is defined as "ownership of a legal or equitable interest, however small, or a relationship as director, adviser or other active participant in the affairs of a party."

Even then, reasonable people can differ over how to apply such definitions.

Case Study

In the Tulane case, for example, Berrigan in written rulings said she had no financial interest in the case or in Tulane because the $5,500 summer school stipend was repayment for cost and expenses, not a salary.

She also noted that, although the Code of Conduct for United States Judges requires judges who teach at a law school to recuse themselves from all cases involving that institution as a party, the rule doesn't distinguish between paid and unpaid teaching positions.

Berrigan also said that Bernofsky's suit was similar to an earlier case he filed, which she also threw out on summary judgment.

"Knowledge of the history of the previous litigation was essential to evaluating the merits of the current litigation, a knowledge this court already had but which would require a new judge to independently amass," Berrigan wrote.  "This frankly was a factor to 'keep' the case at this juncture rather than recuse."

At the appeals court hearing, Judge Thomas Reavley asked whether U.S. Supreme Court justices who have taught at Tulane's summer abroad program would have to be recused if Bernofsky sought review of his case in their court.  Justice Antonin Scalia, for example, has taken part in Tulane's program three times and is scheduled to go to Greece this summer in the spot Berrigan held last year, Farrugia said.

"I think if the case ever got to the Supreme Court, and it was Justice Scalia, who has gone four times on Tulane's nickel, and a case came up with Tulane, I think Justice Scalia probably should recuse himself, yes," he said.

In the end, though, the 5th Circuil ruled with unusual speed in Berrigan's favor, though not along any obvious ideological lines.  Reavley, elevated to the bench by President Carter, and Judge Edith H. Jones, appointed by President Reagan, backed Berrigan, a Clinton appointee.  King was named to the bench by President Carter.

Berrigan, in her rulings and written explanations to the appeals court, signaled the call was a close one.  She also told the 5th Circuit that under case law, she had an obligation not to recuse herself but welcomed guidance from a higher court.

"It was a pure legal legal issue, not involving factual findings or credibility calls," Berrigan said.  "And the appellate court looks at it afresh."

Copyright 2001, The Times-Picayune
Publishing Corporation


From: Susan Finch, "Judge finds herself on trial,"The Times-Picayune, New Orleans, May 8, 2001, p. A-1.  Susan Finch can be reached at sfinch@timespicayune.com.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.  Note: This article was referenced as an exhibit in Bernofsky's brief to the U.S. Supreme Court.







Facts of case discussed further

CARL BERNOFSKY

May 16, 2001

In reference to Susan Finch's article about U.S. District Judge Ginger Berrigan's participation in my lawsuits against Tulane ("Judge finds herself on trial") May 8, Justice Antonin Scalia did, in fact, recuse himself from both the consideration and decision of two recent petitions for certiorari involving Tulane.

Furthermore, under the codes of judicial conduct, Judge Berrigan had a duty to disclose any potential conflict of interest, but she never did.  Had we known of her association with Tulane University at the time of the appeal of my 1995 lawsuit against Tulane for discriminatory discharge, we certainly would have raised this as an issue.  Our discovery occurred independently after the appeal.

Finally, while Judge Berrigan claims to have resigned from Tulane's Amistad Research Center just prior to my 1995 lawsuit against Tulane, she listed her participation in the Center in the Almanac of The Federal Judiciary for the years 1995, 1996, and 1997.

Copyright 2001, The Times-Picayune
Publishing Corporation


From: Carl Bernofsky, "Facts of case discussed further," The Times-Picayune, LETTERS, New Orleans, May 16, 2001, p. B-6.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Ruling under fire as "conflict of interest"

Ex-Tulane professor asks for review of case dismissal

EDITORIAL

May 9, 2001

A federal judge who accepted a Tulane University teaching assignment in Greece the day before she threw out a lawsuit against the university is under scrutiny before the 5th U.S. Circuit Court of Appeals.

The motion on behalf of former biochemistry professor Carl Bernofsky asks the full court to reconsider a recent decision by a sharply divided three-judge panel to throw out the case.  Bernofsky claims that the university maligned him to prospective employers after firing him, and that U.S. District Judge Ginger Berrigan had a conflict of interest when she threw out his case.

Berrigan was one of three jurists with connections to Tulane when Bernofsky filed his libel lawsuit.  The other two, who were magistrates, removed themselves from consideration to preside over the case.

Berrigan's relationship with Tulane began before she accepted the overseas assignment.  She did some part-time teaching at the law school and sat on the board of the Amistad Research Center, which is legally separate from the university but housed on its campus.

In a dissent in last month's three-judge panel ruling upholding Berrigan's decision to throw out Bernofsky's claims, 5th Circuit Chief Judge Carolyn Dineen King said a reasonable person would have viewed the summer teaching assignment and its $5,500 pay "as something of a plum."

"I think that a reasonable person might question her impartiality," King said, adding that she would have reversed Berrigan's judgment and sent the case back to the district court for assignment to another judge.

Berrigan, in written explanations to the appeals court, said that, under case law, she had an obligation not to recuse herself but welcomed guidance from a higher court.

"It was a pure legal issue, not involving factual findings or credibility calls," Berrigan said.

Copyright 2001, Capital City Press 
Baton Rouge, La.


From: "Ruling under fire as 'conflict of interest' - Ex-Tulane professor asks for review of suit dismissal," The Advocate, EDITORIAL, Baton Rouge, May 9, 2001, p. 7-BS.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Court won't hear Tulane appeal

SUSAN FINCH

May 19, 2001

The full 5th U.S. Circuit Court of Appeals will not consider a claim by a former Tulane University Medical School professor that the judge who dismissed his defamation and retaliation lawsuit against the university last year should have removed herself from the case because of her ties to the school.

Biochemistry professor Carl Bernofsky, fired in 1995 after 20 years on the medical school's faculty, is leaning toward asking the U.S. Supreme Court to review the case, his attorney said Friday.

In the suit, Bernofsky charged that a letter Tulane sent to one of his prospective employers contained false information and amounted to retaliation against him for complaining that he was a victim of anti-Semitic discrimination at Tulane.

Last spring, U.S. District Judge Ginger Berrigan threw the case out without a trial and rejected Bernofsky's argument that she should have given the case to another judge because of her appointment to teach a summer 2000 Tulane Law School course in Greece for a $5,500 stipend.

Bernofsky appealed to the 5th Circuit.  In response, Berrigan said in court papers that she did not believe the rules required her to step down but asked the appeals court for guidance.

A three-judge panel last month upheld Berrigan's dismissal of Bernofsky's lawsuit and split on whether Berrigan should have recused herself.  The majority said Berrigan did nothing wrong and agreed there was no reason for her to give up the case.  The third member of the panel — 5th Circuit Chief Judge Carolyn King — said the teaching stint would appear "something of a plum" to the average observer, and that Berrigan should have stepped aside.

In light of the divided decision, Bernofsky asked that the full appeals court reconsider his case.  That request was denied this week in a brief ruling.

Victor Farrugia, Bernofsky's attorney, said he was disappointed.  "It seems to me that the 5th Circuit is dodging the issue of whether or not to look at the conduct of one of their judges, but that's just my opinion," Farrugia said.

Copyright 2001, The Times-Picayune
Publishing Corporation


From: Susan Finch, "Court won't hear Tulane appeal," The Times-Picayune, New Orleans, May 19, 2001, p. B-4.  Susan Finch can be reached at sfinch@timespicayune.com.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Endnotes
Re: Bernofsky v. Tulane
Plaintiff's appeal of lawsuit against Tulane University for retaliation and defamation to the
U.S. Court of Appeals for the Fifth Circuit
  1. PLAINTIFF'S BRIEF, September 6, 2000.
  2. PLAINTIFF'S REPLY, December 7, 2000.
  3. COURT JUDGMENT, April 10, 2001.
  4. OTHER COURT ACTIONS, October 15, 1998 and onward.



IMPEACHING A JUDGE FOR NON-RECUSAL

THE LOCAL PRESS RESPONDS

BALANCING THE SCALES

FIXING THE JUDICIARY

JUDICIAL INSPECTOR GENERAL

 

RULES FOR IMPEACHING A JUDGE

EROSION OF FIRST AMENDMENT RIGHTS

THE END OF JUSTICE

OCCUPY THE COURTS!

MYTH OF JUDICIAL IMPARTIALITY


 
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