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Complaint of Judicial Misconduct (View as PDF)
(Docket No. 99-05-372-0118, Feb. 11, 1999)
Complaint of Judicial Misconduct
Complainant Subject Carl Bernofsky The Hon. Ginger Berrigan, Judge 6478 General Diaz Street United States District Court for the New Orleans, LA 70124 Eastern District of Louisiana (504) 486-4639 (504) 589-7515
I. IntroductionThe complainant was plaintiff in a series of four lawsuits against Tulane University in which the Hon. Ginger Berrigan was Presiding Judge. Relatively recently, he learned that Judge Berrigan has had a material and continuing relationship with the defendant.
Under Canon 3 of the Code of Judicial Conduct, Judge Berrigan had a duty to disclose her association with Tulane before sitting in any case in which Tulane was a defendant. From January, 1995 onward, Judge Berrigan continuously violated this Code in all of the complainant's lawsuits where she presided and failed to make any disclosure.
II. Statement of Facts
A. Professorship
Federal District Court Judge Ginger Berrigan is Adjunct Associate Professor of Law at Tulane University and taught the course, Trial Advocacy, during the 1995-96 academic year [1,2]. Since then, Judge Berrigan has maintained a professional association with Tulane through her continued participation in the Law School's Judicial Externship Program [3-5] and as a substitute instructor for the course, Federal Practice & Procedure: Trials [6], taught by the 76-year-old Adjunct Professor, Federal District Court Judge Charles Schwartz, Jr. [7].
B. Board Membership
In 1990, Judge Berrigan, then an attorney, was appointed to the Board of Directors of Tulane University's Amistad Research Center, a position she occupied until 1997 [8].
The Amistad Research Center occupies a wing of Tilton Memorial Hall on the campus of Tulane University [9]. Tulane not only furnishes the Center with a rent-free physical site, it funded $200,000 in improvements and contributed $12,000 in relocation costs [10]. Tulane also provides a budget of about $63,200 in 1986 dollars, which is adjusted annually for inflation and used for unrestricted operating expenses [10]. Two members of Amistad's Board of Directors are appointed by Tulane [11], which publically represents the Center as a Tulane affiliate [12-14]. In addition, Amistad's Executive Director, Comptroller and other key administrative personnel [15] are listed in the Tulane Faculty and Staff Directory [16].
C. Cases Adjudicated
In all, Judge Berrigan sat in four lawsuits brought by the complainant against Tulane University. The first, Civil Action 95-358, was filed January 31, 1995. Subsequently, two other lawsuits were filed in State Court (97-20805 and 98-6317). These were removed by Tulane to Federal Court, where they were docketed as Civil Actions 98-2102 and 98-1577, respectively, and assigned to Judge Berrigan. The fourth case, which was filed directly in U.S. District Court on June 18, 1998, is Civil Action 98-1792. Civil Actions 98-1792 and 98-2102 were later consolidated under the former docket number and are currently active.
III. Discussion
A. Professorship
Judge Berrigan recently defended her qualification to sit by stating that she serves merely as a substitute instructor in Tulane's course, Federal Practice & Procedure: Trials [6]. This partial admission fails to reveal the true extent of Judge Berrigan's association with Tulane during the past four years and does not release her from her duty to have disclosed this fully before sitting in any case in which Tulane was defendant.
B. Board Membership
Judge Berrigan further defended her qualification to sit by inferring that the Amistad Research Center is an entity that is independent from Tulane [6]. Again, the facts demonstrate that the Amistad Center, as other Tulane centers, is materially dependent on Tulane for its existence. In addition to providing financial assistance, Tulane also chooses two members of Amistad's Board of Governors [11]. Amistad's top administrators are listed by Tulane together with other Faculty/Staff members [16].
According to Tulane's 1995 Faculty Handbook [17], the Amistad Research Center is one of many such centers affiliated with the University. Since publication of that handbook, other centers have been added [14]. Like most other Tulane centers, Amistad Center also derives funding from extramural sources. For example, the Tulane Regional Primate Research Center and the Center for Bioenvironmental Research receive government grants in addition to the support they receive from Tulane and, like the Amistad Research Center, are considered integral parts of the University [14,17].
C. Compensation
Finally, Judge Berrigan defended her qualification to sit by stating that her teaching activities in Tulane's Law School involve no [financial] compensation [6]. Generally, adjunct professors are not paid by Tulane University for their service in academic programs. However, with the lifetime salary provided a federal judge by the U.S. government, monetary compensation would appear to be secondary to the prestige a judge may derive from a university professorship. Moreover, participating in teaching programs or acting as a mentor may satisfy a sense of professional duty, the discharge of which is deemed compensation enough. Furthermore, interaction with other prominent jurists in a university setting would allow a judge to keep abreast of new legal developments, which is a priceless professional benefit.
IV. Ethics
According to Shaman, et al.(1) and the case law cited to support his determination, "...it is the obligation of a judge to disclose all facts that might be grounds for disqualification." Further, Canon 3C of the Code of Judicial Conduct, adopted in 1990 by the American Bar Association and extensively reviewed by Abramson,(2) states, in part, "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned... ." Under Canon 3 of the Code of Judicial Conduct, Judge Berrigan had a duty to disclose her association with Tulane before sitting in any case in which Tulane was a defendant. From January, 1995 onward, Judge Berrigan continuously violated this Code with respect to the complainant's lawsuits against Tulane University when she sat and failed to make any disclosure.
Once the facts of her association with the defendant were discovered by the complainant and brought to her attention, Judge Berrigan responded, "There is no basis for the plaintiff's suggestion that [my] impartiality might reasonably be questioned by virtue of these . . . circumstances..." [6]. In addition to her failure to disclose, Judge Berrigan's actions contradicted the ethical principle elaborated by Shaman, et al.(3) and supported by case law that, "It is not the duty of the parties to search out disqualifying facts about the judge . . . it is the judge's obligation to disclose all possibly disqualifying facts."
V. Conclusions
A reasonable person would question the impartiality of any judge who was an adjunct faculty member at a defendant university and had a continuing association with that university during even part of the time the case was before him or her. Under Canon 3 of the Code of Judicial Conduct, Judge Berrigan had a duty to disclose her association with Tulane before sitting in any case in which Tulane was a defendant. Judge Berrigan's failure to make any disclosure of her direct, substantive, and continuing association with the defendant over the course of four years as Presiding Judge must be seen as a breach of judicial conduct that goes beyond mere negligence or harmless error; it suggests that she had an interest in the outcome of the procedings that derived from her relationship with the defendant.
Judge Berrigan's censure and/or discipline appears warranted and appropriate.
FOOTNOTES 1. Judicial Conduct and Ethics, 2 ed., Shaman, J.M., Lubet, S., Alfini, J.J.; Michie Law Pub., Charlottesville, VA (1995), p. 146.
2. Judicial Disqualification under Canon 3 of the Code of Judicial Conduct, 2 ed., Abramson, L.W., American Judicature Soc., Chicago, IL (1992), pp. 1-48.
3. See footnote 1, p. 146.
VI. Exhibits [Note: To view images of exhibits, see PDF.]
- Tulane [Online] Law School Catalog, 1995-96, Administration & Faculty: Trial Advocacy Faculty.
- Tulane Law School Catalog for 1995-96, p. 104.
- Tulane Law School Catalog for 1996-97, p. 107.
- Tulane Law School Catalog for 1997-98, p. 103.
- Tulane Law School Catalog for 1998-2000, p. 103.
- Minute Entry, Bernofsky v. Tulane, Civil Action No. 98-1792, Docket No. 24, Nov. 23, 1998.
- Tulane Law School Catalog for 1998-2000, p. 55.
- Almanac of the Federal Judiciary, 1997, Vol. 1, 5th Circuit, p. 3.
- The Amistad Log; 1990 Annual Report, pp. 1-2.
- The Amistad Log; 1990 Annual Report, p. 22.
- Defendant's Memorandum in Opposition to Plaintiff's Motion for Recusal, Civil Action No. 98-1792, Docket No. 22, Nov. 9, 1998, p. 4.
- Gambit Weekly, July 21, 1998, p. 47.
- Greater New Orleans White Pages, 1998-99; Business, p. 283.
- Tulane [Online] Academic Resources - Centers.
- Amistad Research Center Home Page.
- Tulane [Online] X-500 Directory.
- Tulane Faculty Handbook, 1995, Section VI, pp. 1-5.
VII. Certificate
The undersigned declares under penalty of perjury that, to the best of his knowledge, the statements in the above complaint are true.
New Orleans, Louisiana, this 11th day of February, 1999.
s/ Carl Bernofsky
Carl Bernofsky
Complainant
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