Under our democratic system, the appropriate means for effecting change is to bring concerns to the attention of elected representatives so that they can correct, amend, or institute laws that protect the rights of all citizens. Failing this, the application of public pressure is ordinarily needed to help overcome resistance on the part of lawmakers to act on the public's behalf. The Guide to Judiciary Policies and Procedures is one of the most frequently consulted books in a judge's chambers, according to the Administrative Office of the United States Courts. In this publication, the Committee on Codes of Conduct of the Judicial Conference of the United States offers the following standards for judges who are adjunct faculty at law schools: "It is permissible for judges to teach in law schools. However, . . . the judge should not participate in any case in which the school or its employees are parties." Guide to Judiciary Policies and Procedures, 1999 Ed., Vol. II, Chap. V, §4.1(b), at p. V-57.
"A judge who teaches at a law school should recuse from all cases involving that educational institution as party. The judge should recuse (or remit) from cases involving the university, as well as those involving the law school, where the judge's impartiality might reasonably be questioned in view of the size and cohesiveness of the university, the degree of independence of the law school, the nature of the case, and related factors. Similar factors govern recusal of judges serving on a university advisory board." Guide to Judiciary Policies and Procedures, 1999 Ed., Vol. II, Chap. V, §3.4-3(a), at p. V-39. The clear intention of the Judicial Conference of the United States is to prevent judges who are associated with a university from sitting in cases in which that university is a party. However, the Canons issued in the Guide to Judiciary Policies and Procedures are advisory only, and no penalties are associated with their violation. As demonstrated in the case of Bernofsky v. Tulane University, a determined judge who both taught at the Law School and served on a University advisory board could not be dissuaded from adjudicating cases brought against the University. Such behavior creates the need for an explicit law that prohibits this type of judicial abuse. In 2005, The Faculty Rights Coalition proposed that adjunct professor judges should agree, as a precondition of employment, not to hear cases that involve the institution where they teach. Bernofsky has proposed to the Senate Judiciary Committee a simple amendment to the existing recusal statute that will close the loophole that is tacitly, and unfairly, given to universities. As quoted below in its entirety, the amendment modifies United States Code, Title 28, Section 455(b) by introducing a new item, §455(b)(5)(v). Concerned readers are encouraged to send an e-mail to their representatives on the Judiciary Committees, expressing their support for the amended statute. A sample letter is offered that can be copied and pasted into the body of an e-mail addressed to members of the Senate Judiciary Committee (Subject: Adjunct Faculty Judges) and/or members of the House Judiciary Committee. The sample can be modified or ignored, according to the view of the sender. However, for the e-mail to receive serious attention, the sender must include his or her name and street address.
Dear Member of the Senate Judiciary Committee:
WHEREAS, the clear intention of the Judicial Conference regarding judges associated with a university is embodied in the Guide to Judiciary Policies and Procedures, 1999 Ed., Vol. II, Chap. V, §3.4-3(a), at p. V-39, 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,
THEREFORE, I join with others to strongly urge you to introduce and/or support the incorporation of §455(b)(5)(v) into the United States Code, Title 28, Section 455(b), which adds the following words 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."
The full text of the amended recusal statute follows:1
United States Code, Title 28, Section 455
Disqualification of Justice, Judge, or Magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:(1) Where he has a personal bias or prejudice concerning a party, or a personal knowledge of disputed evidentiary facts concerning the proceeding;(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the the third degree of relationship to either of them, or the spouse of such a person:(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material witness in the proceeding. (v) Serves as an instructor or on an advisory board of an educational institution that is a party to the proceeding.2
(d) For the purposes of this section, the following words or phrases shall have the meaning indicated:(1) "proceeding" includes pretrial, trial, appellate review, or other stages of litigation;(e) No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground of disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
(2) the degree of relationship is calculated according to the civil law system;
(3) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian;
(4) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:(i) Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the organization;
(iii) The proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a "financial interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
United States Code Annotated, Title 28, Judiciary and Judicial Procedure, West Publishing Co., St. Paul, MN, 1993, Ch. 21, pp. 656-658.
1. See also: sample letters of April 28, 2006 [PDF] and March 8, 2007 [PDF] to U.S. House and Senate Judiciary Committee members. 2. Proposed addition to existing legislation that would compel the recusal of adjunct faculty judges from legal proceedings in which the school or university at which they teach is a party. The adoption of §455(b)(5)(v) into the United States Code has been proposed to the Senate Judiciary Committee, American Bar Association, and the Administrative Office of the United States Courts.
Other References to Codes of Judicial Conduct
- ABA Code of Judicial Conduct, American Bar Association, Chicago, IL, 1990.
(Ed. Note: Canon 3C of the 1972 edition of the “ABA Code of Judicial Conduct” formed the basis of 28 U.S.C. §455, above.)
- Leslie W. Abramson, Disqualification under Canon 3 of the Code of Judicial Conduct, 2nd Ed., American Judicature Society, Chicago, IL, 1992.
- Richard E. Flamm, Judicial Disqualification of Judges: Recusal and Disqualification of Judges, Little, Brown and Co., Boston, MA, 1996.
- Jeffrey M. Shaman, Steven Lubet, James J. Alfini, Judicial Conduct and Ethics, 2nd Ed., Michie Law Publishers, Charlottesville, VA, 1995.
Web site created November, 1998 This section last modified March, 2007
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