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“Corruption in the judiciary is worse than corruption in any other branch of government.”
Should Judge Ginger Berrigan Be Censured?

In July, 2000, Judge Ginger Berrigan spent three weeks in Greece teaching a one-credit course for Tulane University as part of a summer study program offered by the School of Law [1].  This means that while Tulane was arguing to the U.S. Supreme Court that Judge Berrigan was no longer associated with the university [2], she was actively engaged in developing a curriculum and making arrangements with Tulane administrators and other Law School faculty.  Tulane paid Judge Berrigan $5,500 for this teaching commitment [3].

The prestige and honor of this invited professorship is suggested by the stature of some of its recipients. They include U.S. Supreme Court Justices Stephen Breyer, Antonin Scalia (1987, 1991, 1997, 2001, 2004) [4], Harry Blackmun (1992), William Rehnquist (1995, 1997, 2004), and Ruth Bader Ginsburg (1999, 2002) [5, 6].

Following an unusual postponement of the January 18, 2000 trial date, Judge Berrigan rescheduled Bernofsky's trial against Tulane University for retaliation and defamation in her Court for May 15, 2000 and repeatedly asserted that her association with the defendant was no reason why she should be recused from this case.  One month before trial, on April 18, 2000, she granted Tulane's Motion for Summary Judgment.

The description of Judge Berrigan's course, The Judicial Protection of Human Rights: In Theory and in Practice, includes discussions of  "...human rights issues, such as . . . discrimination on the basis of race, ethnic origin, [and] religion . . ."  These same issues comprised the basis of Bernofsky's 1995 lawsuit against Tulane.  Judge Berrigan's arbitrary dismissal of that lawsuit precluded a trial on the merits.

Although Judge Berrigan had known of her teaching engagement since November, 1999 [3], she failed to disclose this information to Bernofsky or his counsel.  Bernofsky learned of this additional involvement with Tulane through independent sources, and on April 4, 2000, he submitted a letter to Judge Berrigan seeking her recusal.  Judge Berrigan ignored this letter, and on April 18, 2000, she ruled against Bernofsky's every cause of action and dismissed his case without trial.

On May 2, 2000, Bernofsky filed a motion requesting that Judge Berrigan reconsider her recusal, and/or amend her judgment, and/or provide him a trial on the merits.  However, Judge Berrigan refused to disqualify herself or alter her judgment in favor of Tulane.  Bernofsky was then taxed for Tulane's legal costs.  On September 6, 2000, Judge Berrigan's rulings against Bernofsky were appealed to the U.S. Fifth Circuit Court of Appeals, which heard the case on April 3, 2001 and on April 10, 2001 affirmed the judgment of the district court, with Chief Judge Carolyn Dineen King dissenting [7].  A further petition for a rehearing en banc was denied May 14, 2001.  The issue was presented to the October, 2001 session of the U.S. Supreme Court, which denied Certiorari.


Judge Berrigan recognizes that she has a duty to recuse when faced with an apparent conflict of interest.  In 1993, Judge Berrigan, then an attorney, had been associated for several years with both Tulane University and the American Civil Liberties Union (ACLU).  By the time she was nominated for a federal judgeship in 1994, she had already resigned from her position with the ACLU [8], but she kept her seat on the Board of Tulane's Amistad Research Center [9] and subsequently accepted an adjunct professorship at Tulane [10].  In 1998, Judge Berrigan recused herself from a lawsuit in which the ACLU was a party [11], citing her association with that organization and its members [12].  In marked contrast, Judge Berrigan has repeatedly refused to recuse herself from lawsuits in which Tulane University was a party despite her uninterrupted and continuing association with that institution, its faculty, and administrators.

In February 1999, Judge Berrigan was the subject of a misconduct complaint.  Her close and long-standing association with Tulane University is described elsewhere on this Web site [13].  Clearly, her relationship with the defendant has deprived Bernofsky of his constitutional right to a due process hearing by an impartial tribunal.  Judge Berrigan has displayed a brazen disregard for the canons of judicial conduct and a willful defiance of U.S. recusal statutes.  Such behavior is unacceptable.  Judge Berrigan should accept the guidance of U.S. Supreme Court Justice Antonin Scalia and Fifth Circuit Chief Judge Carolyn King, who expressed by word and deed their view that a judge who accepts payment from Tulane University should recuse themselves from cases involving that university.  However, any reservations that may have been held by the Fifth Circuit were insufficient to create an issue for her promotion, and it elevated Judge Berrigan to the rank of Chief Judge of the Federal District Court for the Eastern District of Louisiana on November 28, 2001 [14].

Tulane has a tradition of honoring public officials and their families with awards, scholarship gifts, paid travel, and academic titles, and this has a prejudicial influence on those officials when they are called upon to render "impartial" judgments in disputes to which Tulane is a party.  Clearly, those public officials should be compelled to recuse themselves under such circumstances when they fail to do so voluntarily.  Judge Berrigan should heed the case of Judge Ronald Bodenheimer, who was charged with case-fixing by a federal grand jury.  The accused judge faced a maximum penalty of 35 years in prison and a $1.5 million fine for "...conspiracy to violate the civil rights of a litigant..." [15].  In a bizarre twist of irony that shows how far the local judiciary has descended into hypocrisy, Judge Berrigan was appointed to sit in judgment of Judge Bodenheimer [16].  The two judges apparently came to terms with a sentence of only 3.5 years in prison for Bodenheimer in exchange for his confession of guilt and promise to implicate others [17].  In 2007, Bodenheimer was transferred to a halfway house in Baton Rouge, where he will be closer to his family while completing his sentence [18].

Douglas Kendall, Executive Director of the Community Rights Counsel, has lamented to Congress about the lack of an effective deterrent to judges' transgressions of legal and ethical standards [19].  The absence of deterrent has emboldened some judges to seek new levels of autocracy.  Judge Berrigan, by abusing her authority, flouting the laws of this country, and engaging in judicial activism for her own personal and political ends has made herself a prime candidate for disciplinary measures.  Does Judge Berrigan's conduct qualify her for censure?  If you believe that government officials should not be allowed to go unchallenged when they trample on the constitutional rights of any individual, you are invited to express your view.

On August 23, 2016, four days after Bernofsky's petition seeking Judge Berrigan's impeachment reached the office of the Federal Judicial Center, she notified President Obama that she is retiring from active service, thereby relinquishing her seat on the U.S. District Court for the Eastern District of Louisiana [20].  According to columnist James Gill, Judge Berrigan had been on leave from the court since January, 2016 because of unspecified "personal misfortunes which evidently persist" [21].  However, the issue of retirement is of particular relevance because the Fifth Circuit has made it a practice of exempting retired judges from prior offenses that would be considered felonies if committed by ordinary citizens [22].

The integrity of the court is dependent on the public's confidence in that institution, and once that confidence is eroded, the legitimacy of the court is lost.  That is why it is imperative to investigate corrupt judges and hold them responsible for failing to adhere to federal laws and canons of conduct designed to maintain the court's integrity [23].  Accountability is not only necessary for maintaining the public's confidence in the judiciary, it also serves as a deterrant to other judges who might be inclined to abuse their authority to benefit one party at the expense of the other.  The current policy of judges protecting one another from accountability is wrong and can only lead to continued disregard of the law by wayward members of the judiciary.  This is a tragedy because democracy suffers in the face of injustice.

Endnotes
  1. "Greek Isles & Thessaloniki," Tulane Law School Summer School Abroad 2000,  pp. 22 - 33.  The official dates for the session classes were July 9 - July 28, 2000 (ibid., p. 27.)

  2. "Judge Berrigan is not an adjunct faculty member at Tulane University."   From: Respondent's Brief in Opposition, filed Sept. 28, 1999, p. 4.  Case No. 99-372, Supreme Court of the United States.

  3. Personal communication from Judge Berrigan to counsel for plaintiff and defense, April 19, 2000.  See also: Order and Reasons, Docket #88, May 31, 2000, at 2.  [Note:  Judge Berrigan accepted Tulane's assignment to teach following the U.S. Supreme Court's Nov. 1, 1999 denial of Bernofsky's petition to recuse her.]

  4. Tulane's involvement with this conservative justice in 2001 was not limited to sponsorship of his teaching trip to Greece.  Justice Scalia was also the honored guest speaker at a Tulane forum to which the press was invited (The Times Picayune, April 7, 2001, p. B-1).
  5. International & Comparative Law & European Legal Studies, Tulane Law School, 2000, p. 5.
  6. "Greek Isles & Thessaloniki," Tulane Law School Summer School Abroad 2001, p. 29.  See also: Tulane Law School Summer School Abroad 2002, 2003 and 2004[Note:  In November, 1999, Justice Scalia denied Bernofsky's request for an extension of time to file a petition for a rehearing of his Supreme Court petition to recuse Judge Berrigan (Application No. A99-425).  The Clerk of Court who handled this transaction, William K. Suter, was a Tulane graduate (LLB, 1962).  Suter was subsequently featured in a 2000 Tulane Law School promotional CD entitled, "Something More."]

  7. "Ruling under fire as 'conflict of interest'; Ex-Tulane professor asks for review of suit dismissal," The Advocate, Baton Rouge, La., May 9, 2001, p. 7-B.

  8. Bruce Alpert, "Judicial nominee sailing along," The Times-Picayune, January 28, 1994, p. A-9.

  9. Almanac of the Federal Judiciary, 1997, Vol. 1, 5th Circuit, p. 3.

  10. Tulane Law School Catalog for 1995-96, p. 104.

  11. Phillip E. O'Neill v. The State of Louisiana, Civil Action No. 98-2807, U.S. District Court, Eastern District of Louisiana.

  12. Joe Gyan, Jr., "Judge Steps Down from ACLU Lawsuit," Baton Rouge Advocate, October 17, 1998, p. 15-a.

  13. See:  Conflict of InterestComplaint of Judicial MisconductWrit of Mandamus1999 Supreme Court PetitionSupreme Court ReplyReconsiderationAppeal to U.S. Fifth CircuitReply to Tulane's ResponsePetition for Rehearing En Banc2001 Supreme Court Petition.

  14. "Judicial Milestones," The Third Branch (www.uscourts.gov/ttb/feb02ttb/milestones.html). accessed August 31, 2002.

  15. Martha Carr and Manuel Torres, "Ex-judge accused of fixing case; New indictment for Bodenheimer," The Times-Picayune, New Orleans, February 6, 2003, p. A-1.

  16. Martha Carr and Manuel Torres, "Ex-judge seeks to quash evidence; Bodenheimer: Government twisted facts," The Times-Picayune, New Orleans, February 18, 2003, p. B-1.

  17. Martha Carr and Manuel Torres, "Jeff judge confesses in 3 schemes; Bodenheimer agrees to help in courthouse corruption probe," The Times-Picayune, New Orleans, April 1, 2003, p. A-1.

  18. Drew Broach, "Ex-judge sent to halfway house; Bodenheimer should be freed in September," The Times-Picayune, New Orleans, March 29, 2007, p. B-1.

  19. Douglas T. Kendall, Oversight Hearing on Operation of Federal Judicial Misconduct and Recusal Statutes, Testimony to the House Committee on the Judiciary, Subcommittee on Courts, the Internet and Intellectual Property, November 29, 2001 (http://www.communityrights.org/PDFs/Presentations/DTKTestimony.pdf), accessed September 16, 2003.

  20. John Simerman, "'Senior status' for Judge Helen 'Ginger' Berrigan opens second seat on federal bench in New Orleans," TheAdvocate.Com, New Orleans, September 9, 2016, http://www.theadvocate.com/new_orleans/news/courts/article_ae9b4eb0-76e4-11e6-8582-fbeb7e802d9f.html, accessed 09/11/2016

  21. James Gill, "A fat retirement plan for federal judges," The Advocate, Baton Rouge, September 15, 2016.

  22. See: Tulanelink, "Escaping Judicial Accountability Through Retirement," with articles relating to the retirement of Judge Walter S. Smith, Jr.

  23. See: Tulanelink, "Pursuing an Indictment for Criminal Judicial Misconduct," with links to the 2017 Petition for Writ of Mandamus to the U.S. Supreme Court (Docket No. 17-205).
 

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