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The following exchange of letters, published in Gambit Weekly, a greater New Orleans area newspaper, demonstrates how four judges, each with ties to Tulane, ruled against a Jewish faculty member who brought charges of discrimination and wrongful dismissal against Tulane — and how Tulane reacted when this was publicized.
From: Gambit Weekly, Sept. 8, 1998, p. 6 (as corrected Sept. 15, 1998, p. 13 ).
TULANE'S INFLUENCETo the Editor:
I was astonished at Tulane President Eamon Kelly's expression of outrage over the idea that "the courts were politically controlled," in response to recent Louisiana Supreme Court restrictions on university law clinics [1]. After all, Tulane University has for generations profited from just such political control. Tulane's influence on the legal system is derived, in part, from complimentary scholarships that have benefited many public figures, including legislators and judges, the appointment of judges to Tulane Boards and the boards of affiliated institutions, and the conferring of prestigious adjunct professorships on lawyers and judges for their participation in the academic programs of Tulane's Law School. The leverage gained by these activities has proved invaluable to Tulane, particularly when confronted with legal problems involving its own employees.
For example, the courts in Louisiana have consistently supported Tulane's failure to recognize the contractual authority of its own faculty and staff handbooks, which are routinely provided to new faculty and staff members and represented to embody the rules and regulations that govern his or her relationship with the University. In case after case where an employee plaintiff has asked the court to enforce a due-process provision in the handbook, the court has ruled that Tulane is under no obligation to abide by the conditions set forth in the handbook. The recent termination of Dr. Stephen Schwarz illustrates this point [2], but others are equally poignant.
Dr. Schwarz's Department, his School's Promotion and Tenure Committee, and the Dean of his School all recommended that Dr. Schwarz be granted tenure as a result of his six-year review. Nevertheless, the Provost decided to reject the faculty's recommendation and block Dr. Schwarz's promotion. This is a clear violation of a university regulation embodied in Tulane's 'Statement on Academic Freedom, Tenure, and Responsibilities' which states, in part: "Faculty status, including appointments, reappointments, decisions not to reappoint, promotions, the granting of tenure, discipline and dismissal, is primarily a faculty responsibility [3]." (emphasis added) The apparent purpose of this rule is to prevent the arbitrary preemption of those functions by an administrator, which is exactly what occurred in Dr. Schwarz's case.
Tulane's legal position is that "the Faculty Handbook and Statement of Qualifications for Tenure and Promotion are merely guidelines set out by Tulane with no input from [faculty]. These guidelines can be changed by Tulane at any time, and do not create a contract [4]." (emphasis added) In supporting this position, the courts have repeatedly ruled that Tulane has no obligation to honor these guidelines, and Tulane has successfully challenged all attempts to force compliance. Thus, faculty members who still believe they are entitled to due-process and other provisions in the Faculty Handbook may be dismayed to learn that the terms set forth there have no force of contract.
In Dr. Schwarz's case, Judge Max N. Tobias Jr., who presided over his lawsuit, ruled that the "Grievance procedure [as set forth in the] handbook is unilateral expression of company policy, and publishing of that policy does not evidence meeting of minds necessary for formation of enforceable contract; terms of such handbook are not bargained for, and any benefits conferred by it are mere gratuities [4]." (emphasis added) The obvious lesson here for Tulane faculty and staff is that, if they wish to convert "mere gratuities" into enforceable provisions, they will have to bargain for the benefits they now only think they have.
Did Tulane benefit from political influence in the case of Schwarz v. Tulane? In my opinion, it did. Judge Tobias received both his BA and JD degrees from Tulane and, from 1994 to the present, held an adjunct appointment at Tulane Law School as an associate professor. Similarly, Orleans Parish Fourth Circuit Court of Appeals Judge Patricia R. Murray, who affirmed Judge Tobias' ruling, received both her BA and JD degrees from Tulane and, from 1994 to the present, held an adjunct appointment at Tulane Law School as an associate professor. Judge Murray's family was also the recipient of Tulane scholarships from 1981 to 1984 [5]. Both Judge Tobias and Judge Murray teach in the Tulane course Trial Advocacy [6].
Because of the possibility that a judge might favor an institution with which he or she is professionally associated or otherwise indebted, it would seem prudent for Judges Tobias and Murray to have recused themselves so as to avoid the appearance of a conflict of interest. Eamon Kelly and Tulane must have felt very lucky to have Judges Tobias and Murray passing judgment against a hapless faculty member who dared to insist on what he considered his legitimate rights. Where was Dr. Kelly's sense of moral outrage then? [7]
Carl Bernofsky
Former Research Professor (1975-1995)
Tulane University School of Medicine References (not published with letter)
- The Times-Picayune, June 25, 1998, p. B-6.
- Schwarz v. Administrators of the Tulane Educational Fund, 699 So.2d 895 (La.App. 4 Cir. 1987).
- 1976 Faculty Handbook, p. 25; also, 1995 Faculty Handbook,
p. III-1 .
- Schwarz v. Administrators of the Tulane Educational Fund, 699 So.2d 895 (La.App. 4 Cir. 1987).
- The Times-Picayune, October 15, 1995, pp. A-17, A-25.
- Tulane Law School Catalog 1994-95, 1995-96, 1996-97, 1997-98.
- Dr. Eamon Kelly retired as president of Tulane University on July 1, 1998 and was succeeded by President Scott S. Cowen (The Times-Picayune, June 27, 1998, p. A-1). Dr. Kelly remained on the Tulane faculty as Professor in the newly-created Payson Center for International Development and Technology Transfer (The Times-Picayune, May 7, 1998,
p. A-3 ).
In May, 1998, Dr. Kelly was named to head the National Science Board, a post from which he advises President Clinton on science matters and the awarding of research grants. The National Science Board oversees the National Science Foundation, which in 1998 awarded about $3.4 billion in grants, primarily to educational institutions (The Times-Picayune, May 7, 1998,
p. A-3 ).
In May, 2000, Dr. Kelly was reappointed to head the National Science Board, which is expected to oversee the awarding of about $4.57 billion in grants by the National Science Foundation in fiscal year 2001 (The Times-Picayune, May 21, 2000,
p. B-1 ).
From: Gambit Weekly, Sept. 22, 1998, p. 6 (Tulane's response). MALIGNED VOLUNTEERS
To the Editor:
Carl Bernofsky's letter (Vox Populi, Sept. 8) contains material misstatements and leaves your readers with an incorrect statement of facts, and worse, an unfair impression.
Neither Judge Max N. Tobias Jr. nor Judge Patricia R. Murray hold or have held the position of a paid, full-time associate professor of law at Tulane University. Although Judges Tobias and Murray have periodically taught the course in trial advocacy, also with scores of other lawyers and judges, their service has been without compensation and on a volunteer basis. Many hours of their time were devoted to this volunteer service.
Canon 4 of the Code of Judicial Conduct specifically permits a judge to lecture and teach the law. Good citizenship and a generous giving of "personal time" characterize Judges Murray, Tobias and many others who teach young law students without compensation.
More to the point of Mr. Bernofsky's mistaken and unfair characterization, Judge Tobias, while chief justice of Civil District Court, was on a leave of absence from teaching Trial Advocacy in the year preceding and the year in which he decided Dr. Schwarz's case. Judge Murray was not teaching Trial Advocacy at the time she wrote the opinion in Dr. Schwarz's case. More importantly, Judge Murray did not hear the case alone. She was a member of a panel of three judges, all of whom decided the case in Tulane's favor, undoubtedly because the facts and applicable law compelled such a conclusion.
Finally, Mr. Bernofsky's letter states that "a judge might favor an institution with which he or she is professionally associated or otherwise indebted." (Emphasis added.) Nothing could be further from the truth. Neither these judges nor any others who teach in our program owe any "debts" to Tulane. The fact is that Tulane, its law students and the community at large owe a debt of thanks to them, those who give of their time, freely and voluntarily, to train young lawyers. To suggest otherwise is factually incorrect and intellectually dishonest. Neither Judge Tobias nor Judge Murray did anything unethical or illegal, and the letter inappropriately maligns two dedicated public servants. We hope this sets the record straight.
James A. Cobb, Jr.
Lynn LukerCo-directors, Tulane Trial Advocacy Program
From: Gambit Weekly, Nov. 17, 1998, p. 6 (Bernofsky's reply to Tulane's response — published seven weeks after submission.MORE ON TULANE'S INFLUENCE
To the Editor:
Lest your readers be mislead by the letter of Mr. Cobb and Ms. Luker (Vox Populi, Sept. 22), there were no "material misstatements" in my earlier letter (Vox Populi, Sept. 8, as corrected Sept. 15). My letter cited information I received from the Office of the Dean at Tulane Law School, stating that Judge Max N. Tobias Jr. and Judge Patricia R. Murray held adjunct appointments as associate professors and taught in the Trial Advocacy Program. This information appeared for every academic year in Tulane Law School's Catalog from 1994-95 to 1998-00 (earlier catalogs were "unavailable").
Dr. Schwarz filed his lawsuit against Tulane University on Dec. 20, 1993, and Judge Tobias ruled in favor of Tulane nearly three years later, on Oct. 30, 1996. From the Cobb/Luker letter, it appears that Judge Tobias actively participated in Tulane's teaching program throughout the Schwarz case except for the period when he rendered his final decision. The transient absence of one judge or the other from active teaching during periods of Dr. Schwarz's lawsuit and subsequent appeal is unconvincing. 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.
Not only did Judges Tobias and Murray teach at Tulane, they were also Tulane alumni. Unlike a simple circuit that can be switched on and off, loyalty is a quality that is internalized and retained, even when contact is temporarily interrupted.
To my knowledge, adjunct professors are not salaried. However, they are honored and rewarded through their prestigious association with Tulane Law School, its faculty, and students. Moreover, recognition of an adjunct's expertise and accomplishments can lead to professional advancement and commensurate compensation. Mr. Cobb and Ms. Luker, themselves adjunct professors at Tulane Law School, must know that academic affiliation is an important credential that is considered when appointments and promotions are made. It could be a deciding factor that distinguishes which candidate will receive a judgeship or a promotion in one's law firm.
The "indebtedness" to which I referred in my letter includes the Tulane scholarships that Judge Murray received as a student in the early 1980s. As reported in The Times-Picayune on Oct. 15, 1995, Judge Murray received three years of Tulane scholarships via Henry Braden (p. A-17) and another year of scholarship via Michael O'Keefe (p. A-25). At today's tuition rates, this would be valued at more than $90,000. Mr. Cobb and Ms. Luker may not consider this a source of indebtedness, but in my opinion, it is.
As pointed out in the Cobb/Luker letter, two other judges were involved with Judge Murray in Dr. Schwarz's appeal. They were Judges Joan Armstrong and Moon Landrieu, whose families both benefited from Tulane scholarships. According to The Times-Picayune (Oct. 15, 1995, p. A-18), Anna Armstrong, a daughter of Judge Armstrong, received a Tulane scholarship for the 1992-93 academic year, Gary Landrieu, a nephew of Judge Landrieu, received Tulane scholarships from 1976 to 1981 (ibid., p. A-29), and Sherri Dazet Landrieu, a daughter-in-law, received Tulane scholarships from 1983 to 1985 and the 1986-87 academic year (ibid., July 25, 1995, p. A-1).
Finally, readers should not get the impression that Tulane's influence on the judiciary is limited to the Civil District Court system. There is ample evidence to indicate that it reaches well beyond.
Carl Bernofsky
Former Research Professor (1975-1995)
Tulane University School of Medicine
Gifts to JudgesThe fact that all four judges involved in the case of Schwarz v. Tulane were associated with the defendant by one or more ties illustrates the effectiveness of Tulane's policy of forging links to present and potential politicians and judges. It is no longer a secret that judges assigned to Tulane cases have had, and continue to have, close ties to the University. The judicial partisanship cultivated by such ties may have contributed in an important way to Tulane's success in defending itself against lawsuits from its own employees. Until now, this unfair advantage has not been challenged. In a series of 1995 articles, The Times-Picayune newspaper exposed the Tulane scholarship scandal (for example, see the issues of July 23, 1995 and October 15, 1995). However, despite the furor caused by the scandal, Tulane still lawfully continues this practice (The Times-Picayune, May 30, 1996, p. A-2). In 1999, Tulane provided "legislative" scholarships to 144 Louisiana legislators and the mayor of New Orleans. Each scholarship was worth $22,000 for a total value of $3.2 million and was to be awarded to a qualified student (The Times-Picayune, April 20, 1999, p. A-3). A number of these scholarships were conferred on the children of judges and other public officials. Bribery In December, 1998, the Associated Press reported that the U.S. Department of Justice and FBI were investigating the awarding of scholarships and other gifts to family members of the International Olympic Committee (IOC) by officials of the Salt Lake Organizing Committee [1-3]. These inducements were allegedly an attempt to curry favor with IOC members and were being investigated for possible "criminal wrongdoing." In July, 2000, two top officials of the Salt Lake Organizing Committee were indicted on a broad range of criminal charges that involved more than $1 million in cash, gifts, scholarships, and other inducements [4]. These indictments clearly identify the purpose of awarding scholarships and other perquisites to public officials. At trial, however, before the jury could deliberate, the judge acquitted the officials, saying that gift-giving was commonly associated with the Olympic process. According to Black's Law Dictionary, 6th Edition, bribe is defined as: "Any money, goods, right in action, property, thing of value, or any preferment, advantage, privilege or emolument, or any promise or undertaking to give any, asked, given or accepted, with a corrupt intent to induce or influence action, vote, or opinion of person in any public or official capacity. A gift, not necessarily of pecuniary value, bestowed to influence the conduct of the receiver." Conspiracy and Racketeering In a case tried in Federal District Court for the Southern District of California (see USA v. Frega, Case No. 97-50100, U.S. 9th Circuit Court of Appeals), attorney Patrick Frega was investigated for giving gifts valued at $110,078 to three judges and their families over a period of 10 years in expectation of having his cases brought before "friendly" courts. Frega contended that the gifts were not bribes but simply gifts conferred out of friendship and generosity. Following a 30-day trial, a jury found Frega and the judges guilty of 21 counts of conspiracy and racketeering activity in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO") and other statutes. Frega and one of the judges (Judge G. Dennis Adams) were each sentenced to 41 months in prison, and another judge (Judge James Malkus) was sentenced to 33 months in prison. Federal bribery charges against the third judge (Judge Michael I. Greer) were dismissed when he became a witness for the prosecution. Upon appeal, the appellate court affirmed the convictions on all counts except one and remanded the case to the lower court for reconsideration of the defendants' sentences. In general, the business dealings of judges with litigants and attorneys should always be subjected to scrutiny when there is cause for concern about a judgment that might reflect a conflict of interest. Former judge G. Dennis Adams spent about half of his 41-month sentence under house arrest in his former wife's beachfront condominium in Hawaii and had his pension reduced to nearly $5,000 per month. The three former judges later filed lawsuits against the California Public Employees Retirement System, contesting the reduction of their pension [5]. Judges who render judgments favorable to wealthy attorneys or institutions could be rewarded by methods that lie below the radar of public scrutiny. For example, real estate or other property that is owned by a judge or one of his family members could be purchased or leased by an attorney or institution at a price that far exceeds its fair-market value. In addition, improvements to such property could be made by a contractor who would be hired and paid by the attorney or institution. In cases where a judge must run for election to his or her position, contributions by the attorney or institution and their associates could be made to the judge's campaign, as exemplified by the practice in Nevada [6]. Alternatively, real estate or other property that is owned by an attorney, institution or business could be offered to a judge or one of his family members at a price that is far below fair-market value.In the case involving the once popular diet-drug combination fen-phen, Kentucky Judge Joseph F. Bamberger directed $20 million of the$200 million settlement to be put into a charitable fund from which he as a director received a monthly stipend of $5,000 and a $350 expense allowance [7]. His close friend, trial consultant Mark Modlin, was awarded more than$2 million in legal fees and as a director of that charitable fund received a monthly stipend of $6,500 and a $1,000 expense allowance. Bamberger and Modlin were also partners in a Kentucky real-estate company. Two other Kentucky lawyers were also directors of the charitable fund and received a monthly stipend of $5,000 and a $350 expense allowance. As a result of plaintiffs' complaints about excessive awards being given to their attorneys, Judge Bamberger received a public reprimand from the Kentucky Judicial Conduct Commission for alleged misconduct and was allowed to resign from the bench [7]. Following retirement, judges receive pensions based on their final salaries and can continue to serve (and be paid) as substitute judges.There are many variations on these themes, such as when political bosses run a judge's campaign, or when an attorney liquidates an estate property below its market value to a friend in exchange for a Cadillac. In Louisiana, an officer of a successful bail bonding company testified in 2003 that he regularly "paid money to district attorneys, judges and other justice officials for help with the bonding business" [8]. The company also referred clients to a particular criminal defense attorney, who in turn "would make hefty political contributions" to a sitting judge (the attorney's wife), who also helped with the bonding business [8]. The FBI determined that five judges were receiving cash and other gratuities from the owner of the bail bonding company [9]. Sadly, stories such as this seem to be commonplace and rarely surface as they merely reflect "business as usual." Only when this type of corruption accompanies other rogue activities that attract the attention of the press does the public become aware. In Mississippi, Judge Oliver Diaz and others were indicted for receiving campaign contributions and other financial gratuities from a wealthy attorney in exchange for favorable rulings [10]. In one instance, the attorney paid off a $140,000 loan for one of the judges and later won a lawsuit with an award of $1.6 million after appeal [11]. In Louisiana, Judge Ronald Bodenheimer was indicted, among other things, for expecting emoluments from a wealthy litigant in exchange for a favorable ruling.However, few methods for influencing the judicial decision making process can match the sophistication of those employed by Tulane, which involve the prior establishment of contacts with judges, an elaborate system of gratuities, the cultivation of kinship, and a means of communicating facts about a case to a judge and imprinting them upon his mind. Tulane's relationship with U.S. District Court Judge Martin L. C. Feldman fits this pattern. Judge Feldman is not only a frequent participant in Tulane University's Summer School Abroad program in Cambridge, England, but in 2003 he was honored by Tulane when it established a scholarship fund named for his late wife, Melanie Pulitzer Feldman, an accomplished decorator and former Tulane art student. Real estate developer Joseph C. Canizaro contributed the first $25,000 toward the scholarship fund, an amount readily matched by others present at the dedication ceremony [12]. The tribute paid the judge's family was so successful, Tulane may make it an annual affair [13]. One technique for avoiding detection is to separate the connection between judgment and reward by engaging judges and their family members in business dealings on a before-need basis in order to secure their loyalty. As a common practice, wealthy attorneys and institutions routinely conduct fetes and excursions and distribute honoraria and other emoluments to judges in anticipation of future service, all of which is tantamount to purchasing judicial insurance. The value of the gifts given by attorney Frega to the families of the three California judges pales in comparison to the value of the scholarship gifts and other privileges given by Tulane to the families of judges and legislators in Louisiana. Tulane's other gifts include the funding of trips for judges. The many judges who directly or indirectly received benefits from Tulane and then sat in cases in which Tulane was a party may thus be part of a vast conspiracy whose objective has been to provide courts that are "friendly" toward Tulane. Proposition 902 In 1999, California citizens gathered signatures on petitions that would place the Judicial Accountability Initiative Law (Proposition 902) on the state ballot for voter approval [14]. Proposition 902 would create special grand juries to determine whether a judge has engaged in illegal conduct. The initiative follows on the heels of the conviction of judges who were fined, forced to resign, or who are facing jail time for giving preferential treatment in exchange for various emoluments. Although insufficient signatures were collected in California (or later in Idaho) to earn a place on the state ballot, South Dakota proponents were successful, and in 2006 the Judicial Accountability Initiative Law (Amendment E) appeared on South Dakota state ballots for voter approval [15]. References
- "USOC To Investigate Salt Lake Bid," AP-NY-12-29-98 0939EST.
- "Olympics: When is a Gift a Bribe?" AP-NY-12-25-98 0127EST.
- "Justice Dept. To Probe Olympic Bid," AP-NY-12-24-98 0245EST.
- Alan Abrahamson, "Indictments Issued in Utah Olympic Bid," The Times-Picayune, July 21, 2000, p. A-5 (reprinted from the
Los Angeles Times ).
- Greg Moran, "Ex-judge sues state over cut in pension; Adams served time in corruption case," The San Diego Union Tribune, August 28, 2006, http://www.signonsandiego.com/uniontrib/20060828/news_1m28adams.html, accessed 09/02/06.
- Michael J. Goodman and William C. Rempel, "In Las Vegas, They're Playing With a Stacked Deck; Some judges routinely rule in cases involving friends, former clients and business associates—and in favor of lawyers who fill their campaign coffers," Los Angeles Times, June 8, 2006.
- Andrew Wolfson, "Kentucky judge resigns after public reprimand; Misconduct alleged in diet-drug case," The Courier-Journal, Louisville, Kentucky, February 28, 2006, http://www.courier-journal.com/apps/pbcs.dll/article?AID=/20060228/NEWS01/602280362/1008/NEWS01, accessed 09/02/06.
- Manuel Torres and Martha Carr, "Ex-judge seeks to quash evidence; Bodenheimer: Government twisted facts," The Times-Picayune, New Orleans, February 18, 2003, p. B-1.
- Drew Broach, "FBI sets sights on courthouse of ill repute," The Times-Picayune, New Orleans, April 7, 2003,
p. B-7.
- Jerry Mitchell, "Indicted Diaz pleads 'absolutely not guilty'," The Clarion-Ledger, Jackson, Miss., August 7, 2003, http://www.clarionledger.com/news/0308/07/m01.html, accessed 8/15/03. See also: Adam Liptak, "Not From a Grisham Novel, But One for the Casebook," New York Times, March 15, 2004, http://select.nytimes.com/search/restricted/article?res=F60F15FB345A0C768DDDAA0894DC404482#, accessed 04/04/07.
- Holbrook Mohr, "Famed Litigator, Two Judges Convicted of Bribery," New York Lawyer, April 2, 2007, http://www.nylawyer.com/display.php/file=/news/07/04/040207p, accessed 04/03/07.
- Nell Nolan, "Social Scene; Across the map, it's a party town," The Times-Picayune, New Orleans, March 28, 2003,
p. E-2.
- Nell Nolan, "Social Scene; Entertaining events on three fronts," The Times-Picayune, New Orleans, May 24, 2004,
p. C-2.
- Frank York,"Jail 4 Judges targets judicial corruption; Only 7 removed from bench in 9,529 abuse cases," http://www.worldnetdaily.com, August 30, 1999. See also: http://www.jail4judges.org.
- Richard Acello, "South Dakota to Vote on Putting Judges on Trial; Statewide Initiative Would Allow Citizens to Sue Judges" The ABA Journal eReport, January 13, 2006, http://www.abanet.org/journal/ereport/j13sue.html, accessed 01/18/06.
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