Carl Bernofsky v. Tulane University Complaint of Misconduct
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Appeal of Court Order Dismissing Complaint of Judicial Misconduct
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(Docket No. 99-05-372-0118, March 12, 1999)
 

March 12, 1999

Charles R. Fulbruge III
Clerk
United States Court of Appeals
Fifth Circuit
600 Camp Street
New Orleans, LA 70130

In Re:   Judicial Misconduct Complaint 99-05-372-0118

Dear Mr. Fulbruge:

I hereby petition the Judicial Council for review of the Chief Judge's order concerning the above-referenced complaint and offer additional arguments and exhibits in support of this complaint.

Argument

Rule 1(E)(1) of the Rules Governing Complaints of Judicial Misconduct or Disability states that complaint procedures may not be used to have a judge disqualified or recused from a case. In compliance with this rule, the complainant merely requested censure for a serious breach of ethical conduct and nowhere asked the Court to disqualify the subject judge. A request for recusal was never raised as an issue.

Nevertheless, the Court raised and incorrectly attributed to the complainant issues related to disqualification, which it then proceeded to strike down. Thus,

"...recusal would not have been required for Judge Berrigan's participation in an externship program..." and,

"...Bernofsky has not alleged that any facts existed that would have required Judge Berrigan to recuse herself."

Concerning the externship program, it is the exceptional judge that would deny law students access to his or her chambers for educational purposes. Most of the federal district judges are known to participate in Tulane's externship program, and this is an issue raised by the Court, not the complainant. In contrast, there is a genuine inference of affinity when a judge goes through the effort of preparing lecture materials and then travels to a university campus in order to teach formal classes, all without financial compensation.

Concerning Tulane's Amistad Research Center, the Court's view is that Amistad is not related to Tulane in any way other than being located on the Tulane campus. This view is erroneous because it fails to recognize Tulane's initial investment, Tulane's annual budgeting for the Center, Tulane's board appointments, and Tulane's control over the Center's key personnel, as documented in the complaint.

Further, the objective facts of Judge Berrigan's Tulane professorship, board membership, and her failure to disclose her association with the defendant to the plaintiff cannot be made to disappear through the mere denial of their existence or relevance, although Judge Berrigan appears to be sensitive to these issues and would minimize their impact.

For example, Judge Berrigan recently altered her curriculum vitae by removing three years from the time she previously claimed to serve on the board of Tulane's Amistad Research Center. The altered vitae shows board membership only through 1994, whereas her previous vitae showed membership through 1997 [compare Exhibits 1 & 2]. This change creates a new record indicating that Judge Berrigan did not serve on the board of a Tulane research center at any time from January 31, 1995, onward, when she presided in the plaintiff's lawsuits against Tulane. This alteration by Judge Berrigan implies that she believed there was something improper about her relationship with Tulane during that period.

Conclusion

For the reasons presented here and in the initial complaint, Judge Berrigan's failure to disclose her previous and present association with the university-defendant during the past four years as presiding judge in the complainant's lawsuits against Tulane must be seen as a breach of judicial conduct that warrants censure and/or discipline.

Exhibits      (Ed. Note: Images of exhibits are currently not available.)

1.   Almanac of the Federal Judiciary, 1997, Vol. 1, 5th Circuit, p. 3.

2.   Almanac of the Federal Judiciary, 1998, Vol. 1, 5th Circuit, p. 3.

Certificate

The undersigned declares, under penalty of perjury that, to the best of his knowledge, the statements in the above petition are true.

New Orleans, Louisiana, this 12th day of March, 1999.


s/     Carl Bernofsky       
Carl Bernofsky
Complainant
 

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