A federal judge taught at a university, was a board member of one of its research centers, received $5,500 to teach a summer course at a resort location in Greece, and presided over a series of lawsuits against that same university during the same period while never disclosing her association with it. The cases against the university were dismissed without being tried on the merits.
When the judge's connections with the defendant university were independently discovered by the plaintiff and the judge was asked to recuse herself, she responded: "There is no basis for the plaintiff's suggestion that [my] impartiality might reasonably be questioned by virtue of these . . . circumstances under 28 U.S.C. Sec. 455." Subsequent complaints of judicial misconduct and appeals to compel the judge's recusal were similarly dismissed.
Those events are from the case of Carl Bernofsky v. Administrators of the Tulane Educational Fund, Civil Action Nos. 95-358, 98-1557, 98-1792, and 98-2102, filed in Federal District Court for the Eastern District of Louisiana, the Honorable Helen Ginger Berrigan presiding. (See video.)
The above example is not unique. Throughout the country, judges who are associated with universities are routinely called upon to adjudicate cases in which those universities are defendants in lawsuits.
The relevant canon of the Judicial Conference that regulates judicial conduct in the above situation states, in pertinent part: "A judge who teaches at a law school should recuse from all cases involving that educational institution. The judge should recuse (or remit) from cases involving the university, as well as those involving the law school..." . . . "Similar factors govern recusal of judges serving on a university advisory board." (Guide to Judiciary Policies and Practices, Vol. II, Chap. V, Sec. 3.4-3(a), reissued 6/15/99).
Unfortunately, that canon does not have the force of law and thus is unenforceable. The present petition seeks to correct this defect by amending the existing recusal statute with language that will compel the recusal of judges from cases that involve the educational institutions at which they teach. The resolution follows below.
Note 1: The recusal statute, Title 28 US Code Section 455, may be accessed at http://www4.law.cornell.edu/uscode.
Note 2: The need for this legislation is apparent from the refusal of the Fifth Circuit to recognize the automatic disqualification of judges who are paid to teach at a university or law school and hear cases in which the school is a party (Faculty Rights Coalition v. Hanks, Case No. 05-20348, 5th Cir. June 29, 2006).
Note 3: In 2008, a committee of the Judicial Conference considered incorporating into its revised Code of Judicial Conduct language that mirrors the legislation proposed by this petition. The judicial body failed to curtail this judicial conflict of interest. See: "Public Comments Aid Study of Proposed Changes to Code of Conduct for Judges," The Third Branch: Newsletter of the Federal Courts, Vol. 40, No. 5, May, 2008, http://www.uscourts.gov/ttb/2008-05/article07.cfm, accessed 05/28/08.
To House and Senate Judiciary Committee Members:
WHEREAS the clear intention of the Judicial Conference regarding judges associated with a university is embodied in a canon published in the Guide to Judiciary Policies and Procedures, Vol. II, Chap. V, Sec. 3.4-3(a), reissued 6/15/99, and
WHEREAS the canon states that judges who teach at a law school or serve on a university advisory board should recuse from cases in which the university is a party, and
WHEREAS the Guide to Judiciary Policies and Procedures is advisory only, and
WHEREAS violation of the canon carries no penalty, and
WHEREAS egregious abuse of this canon has occurred and will continue to occur, and
WHEREAS public confidence in the legal system is based on the expectation of equal justice under the law,
WHEREFORE I join with others to strongly urge you to introduce and/or support the incorporation of Sec. 455(b)(5)(v) into the United States Code, Title 28, Section 455(b), which adds the following phrase to the existing recusal statute: "Serves as an instructor or on an advisory board of an educational institution that is a party to the proceeding."
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