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Critiques of the Judiciary
 
When judges themselves become culprits, society itself is imperiled.

-- Richard Lee Abrams
2017
Pursuing an Indictment for Criminal Judicial Misconduct

THE DEPARTMENT OF JUSTICE IS OBLIGATED TO ENFORCE LAWS THAT

PREVENT JUDGES FROM ABUSING THEIR AUTHORITY

Under 28 U.S.C. § 455(a), disqualification is mandatory in "any proceeding in which [the judge's] impartiality might reasonably be questioned."  In 1998, upon discovering that Judge Berrigan was employed by defendant Tulane University as an adjunct professor and also served on the board of one its research centers, plaintiff Carl Bernofsky filed a motion for her recusal, which ordinarily would trigger the response required by the above law, at which point 28 U.S.C. § 144 would become operative:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. (Emphasis added)

Despite having full knowledge of applicable law, Judge Berrigan denied the plaintiff's motion for recusal.  Downplaying the importance of her university teaching and board membership, she declared:  "There is no basis for the plaintiff's suggestion that [my] impartiality might reasonably be questioned by virtue of these two circumstances..."

That willful disregard of federal statutes by a public servant and federal employee was not only felonious, but a breach of trust that had been secured by a solemn oath.

Berrigan's position on recusal was a flagrant violation of controlling federal law, and the plaintiff immediately appealed her order to the Fifth Circuit Court of Appeals.  At the time, the plaintiff was unaware of the Fifth Circuit's cozy relationship with the defendant, Tulane University, which regularly extended its campus resources to the appellate court for conducting judicial hearings, and also engaged members of the district court with academic appointments in its Law School.

The Fifth Circuit granted Berrigan impunity.

A panel of three Circuit Judges led by Judge Reynaldo G. Garza dismissed the plaintiff's appeal on the basis that, "An order denying a motion to recuse is not immediately appealable."  Justification for this erroneous decision was based on dubious interpretations of cited law as well as previous rulings of the Fifth Circuit, themselves of questionable legitimacy.  The Court wrote:

Federal appellate courts have jurisdiction over appeals only from (1) final orders, 28 U.S.C. 1291; (2) orders that are deemed final due to jurisprudential exception or which can be properly certified as final pursuant to Fed. R. Civ. P. 54(b); and (3) interlocutory orders that fall into specific classes, 28 U.S.C. 1292(a), or which can be properly certified for appeal by the district court, 28 U.S.C. § 1292(b).

An analysis of the Court's opinion follows:

(1) In pertinent part, 28 U.S.C. § 1291 states:

The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States...

District Court Judge Berrigan's decision not to recuse herself appears to be eminently appealable to the appellate court.  The Fifth Circuit's attempt to distinguish the district court's decision — which followed a series of decisions unfavorable to the plaintiff — from a "final" decision is without merit.  The "finality" of Berrigan's order is without question.

(2) Fed. R. Civ. P. 54(b) states:

(b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief — whether as a claim, counterclaim, crossclaim, or third-party claim — or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

District Court Judge Berrigan's decision not to recuse herself would appear to end all actions intended to prevent her from adjudicating the ongoing claims of the plaintiff and thus is appealable to the appellate court.  The Fifth Circuit's attempt to construe Judge Berrigan's decision as a partial, temporary or incomplete action is without merit because a judge who is disqualified under 28 U.S.C. § 455(a) can no longer continue to adjudicate the claims of the involved parties.  Here, the Fifth Circuit inappropriately assumes that Judge Berrigan will persist in sitting in judgment, and that it will only accept appeals made after final rulings in the case have been rendered.  Such assumption directly contradicts the intention of the law and must be rejected.  The Fifth Circuit's artful but unarticulated definition of the term "final" is disingenuous, deceptive, and deceitful.

(3) 28 U.S.C. 1292 states, in pertinent parts:

(a) [T]he courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States. ...

(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

Plaintiff's appeal was clearly from an interlocutory order of the district court, and thus under 28 U.S.C. § 1292(a) was entirely appropriate.  Further discussion of circumstances under which an interlocutory order would not be appealable is irrelevant and meaningless.

Finally, the Fifth Circuit justifies why it does not have jurisdiction over plaintiff's appeal by citing its opinion in Nobby Lobby, Inc. v. City of Dallas, 970 F.2d 82, 85 & n.3 (5th Cir. 1992).

From Nobby Lobby, footnote 3, the Fifth Circuit writes:

In its appeal, the City [of Dallas] seeks review of the district judge's refusal to disqualify himself under 28 U.S.C. § 455(a). We decline to review the court's denial of the City's motion to recuse, however, because the judge's decision is not an appealable interlocutory order under 28 U.S.C. § 1292(a). ...

In Nobby Lobby, the Fifth Circuit had already reviewed and upheld more than once the plaintiffs' complaint that the City's seizure of their equipment for marketing pornographic material was unconstitutional.  The defendant's last-minute discovery that the district judge had a small and indirect financial interest in the plaintiffs' business and would not recuse himself was judged not to be an appealable interlocutory order because the appellate process had already concluded, was not timely, and was not further appealable in accordance with res judicata as exemplified by other cases enumerated in Nobby Lobby, footnote 3.

In contrast, Bernofsky's appeal was from an interlocutory order inasmuch as his affected litigation was active and continued for years to come, with results that were clearly influenced by Judge Berrigan's intimate involvement with the defendant university.1

In 2016, the Fifth Circuit's indulgence of judicial misconduct reached new heights when it ruled in an unrelated case that it would not investigate past impeachable offenses of judges who simply retired before any criminal charges could be brought.  According to this new doctrine of judicial entitlement, retirement would not only exempt culprit judges from having their past crimes investigated, it would also entitle them to receive their full salaries (as "annuities") for the rest of their lives.

That ruling, which protects fellow "brothers or sisters of the robe" from being disciplined for past breaches of "good behavior" or worse, grew out of a complaint of judicial misconduct brought against U.S. District Judge Walter S. Smith, Jr. for stalking and making sexual advances in his chambers against a staff member of the court.  The victim, whose health was compromised as a result of the abuse, was driven to leave her position as deputy clerk at the U.S. District Courthouse in Waco, Texas.2

With this ruling of the Fifth Circuit in mind, Bernofsky in 2017 filed a Petition for a Writ of Mandamus to the U.S. Supreme Court (Docket No. 17-205) which asks the simple question:3

Should judges be exempt from investigation and prosecution for commission of past high crimes and misdemeanors in connection with cases over which they presided?

The request made of the Supreme Court is likewise straightforward:3

In conclusion, petitioner, Carl Bernofsky, respectfully prays that a writ of mandamus be issued by this High Court to direct the Judicial Council of the Fifth Circuit, or preferably an equivalent alternative body, to conduct an investigation of the Hon. Helen "Ginger" Berrigan, Judge of the United States District Court for the Eastern District of Louisiana, for the potentially impeachable offenses outlined in the accompanying petition under review.


Endnotes
  1. For documents related to Judge Berrigan's abuse of authority, see the table in "Case Update," which covers the period of October, 1998 to March, 2004 and includes links to such documents as the original motion for recusal, Bernofsky's complaint of judicial misconduct, and petitions for writs of mandamus, both to the Fifth Circuit Court of Appeals and the U.S. Supreme Court.

    See also the tables associated with the "Tulanelink Video," which covers court filings for the period of June, 2016 to the present and includes the 2017 petition for writ of mandamus to the U.S. Supreme Court.

  2. For further information about the Judge Walter S. Smith, Jr. case, see: "Escaping Judicial Accountability Through Retirement" and "A New Doctrine of Judicial Entitlement".

  3. See the 2017 Petition for Writ of Mandamus (Docket No. 17-205) and Appendix to the Petition for Writ of Mandamus (Docket No. 17-205).

  4. For links to Petitions to Congress, see the "Site Map" table, which covers the period of July, 2004 to June, 2016.


FIXING THE JUDICIARY

ALTERNATIVE JUDICIAL FIXES

IMPEACHABLE OFFENSES

THE LOCAL PRESS RESPONDS

JUDICIAL INSPECTOR GENERAL

EROSION OF FIRST AMENDMENT RIGHTS

BALANCING THE SCALES

  JUDICIAL ENTITLEMENT

DEFENDING BLOGGERS' RIGHTS

RULES FOR IMPEACHING A JUDGE

CENSURE JUDGE BERRIGAN

THE END OF JUSTICE

OCCUPY THE COURTS!

MYTH OF JUDICIAL IMPARTIALITY


 
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