Complaint of Judicial Misconduct against Judge Ginger Berrigan to U.S. Court of Appeals for the Fifth Circuit. Docket No. 99-05-372-0118, filed Feb. 11, 1999

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Under our democratic system, the appropriate means for effecting change is to bring concerns to the attention of elected representatives so that they may correct, amend, or institute laws that protect the rights of all citizens. Failing this, the application of public pressure may be 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.

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: Law School Teaching) 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,

WHEREFORE 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."

Respectfully yours,


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;
(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.1

(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.
(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;
(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.

(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.
(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

Footnote

1. 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.

The legal system is now our enemy
by Dennis Prager

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I was raised to believe that law is the glory of decent society; that the rule of law is the sine qua non of civilization; that international law is the greatest protector of human rights; that lawyers should be coupled with doctors as an elite profession to which a young person can aspire; that making laws is the great work of legislatures; that law schools are among the noble places of learning in society; that the title "judge" was perhaps the highest appellation in society; and that the jury system is an essential component of a just society.

Most of the preceding has become nonsense.

I have come to fear almost everything having to do with law. Though there are many fine people in the legal profession, and though law is necessary to protect society from descending into chaos, I now fear the legal profession more than I do Islamic terror. I am far from alone. I believe that more Americans rightly fear being ruined by the American legal system more than being killed by a terrorist.

Tens of millions of innocent Americans, and untold numbers of innocent institutions -- from schools to businesses -- stand a good chance of having their money legally stolen through litigation or even the mere threat of it.

Innumerable American children are terribly harmed by family lawyers who egg on their clients to destroy the other parent.

Parents fear allowing visiting children to play on their property -- in their pools or on their trampolines, for example -- lest they be sued in case of injury.

Airlines won't give passengers aspirin for fear of lawsuits.

Physicians prescribe unnecessary procedures, raising the national medical bill astronomically, for fear of being sued.

American hotel guests can no longer breathe fresh air because hotels are no longer built with windows that open lest they be sued if a hotel guest falls out of one.

Men and women fear speaking normally at work, lest they be sued.

The deprivation of freedoms in America because of laws and litigation has made this country less free than at any time in its history.

Law in America and internationally is no longer on the side of the decent. It is a weapon in the hands of the indecent.

Everything related to law has been corrupted.

Law schools . Most people leave law school morally worse than when they entered. When they enter law school, most students think in terms of right or wrong. In law school they are taught to reject such thinking and to think only in terms of legal and illegal. This transformation of morals into legal categories, reinforced most especially in trial law, and particularly among criminal defense lawyers, explains the proliferation of amoral lawyers and the destructive role many trial lawyers play in our society.

Lawyers . The best humor is almost always the truest humor. The funniest jokes I ever heard were those told by Soviet dissidents; the funniest today are about lawyers. Both types of jokes are so humorous because they come from the same place -- bitterness at one's helplessness against an overwhelming and oppressive power -- the communist system in the Soviet Union, the legal system in America.

International law . Had America followed the proponents of international law, the people of Iraq would still be tortured and murdered by Saddam Hussein's regime. The frenzied screams of the international law community against American liberation of Iraq were the screams of people who hate American power and values far more than they hate tyrannies. International law and international treaties (all broken by the very regimes that we need to be protected against) are now the weapon of choice against American moral and military power.

Law . Law is a man-made series of rules. That is all it is. In and of itself, law is entirely amoral. There are moral laws and immoral laws. Both decent and vicious governments make laws. The Holocaust began legally. Nazis and communists had judges and lawyers who respected their societies' laws. In our country, slavery was entirely legal, as was the racial segregation that followed it. The notion that obedience to a society's laws is always moral is itself immoral.

Judges . Too many judges are unfit for their position. How else can one explain the New York State Supreme Court ruling that women can bare their breasts in public because men can? How to explain the judges who liberate criminals only to have those criminals murder and rape again? Or the many judges who regard their primary role as imposing their values on society? This has led to an undermining of the democratic process beyond the wildest hopes of any homegrown fascist or communist.

Juries . Juries are now merely weapons in the hands of amoral attorneys. The attorney's purpose is to win, not to find justice, let alone truth, and the jury is selected only for that purpose. The Florida lawyer who brought the new legal terror weapon of "class action suit" against tobacco companies rejected over 800 potential jurors before he could find 6 people who do not believe that anyone who smokes has freely chosen to do so.

And now a trial lawyer is seeking the Democratic Party's nomination for president. He ought to win it. Trial lawyers are, after all, the largest contributors to him and to his party. And if that doesn't frighten enough Americans, we will cease being a free country.

If America is destroyed, it will be done legally.

JWR contributor Dennis Prager hosts a national daily radio show based in Los Angeles. He the author of, most recently, "Happiness is a Serious Problem".

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