June 30, 2008

Ca.rl Bemofsky, Ph.D.
109 Sou.thfielJRoa.d.Apt. 51H
Shreveport, LA 71105 '
June 30, 2008
The Honorable John Conyers, Jr.
2426 Rayburn House Office Building
Washington, D.C. 20515
Re:
Recusal Law
Dear Representative Conyers:
The enclosed proposal seeks to amend the existing recusal statute and make it conform to
canons ofthe Judicial Conference that guide but do not compel the conduct of judges. The
amendment would prevent judges who are faculty members at academic institutions from
adjudicating cases in which those institutions are a party. The canons that forbid this are widely
abused and, thus, must be raised to the level of statute to give them the force of law.
The public's growing dissatisfaction with judicial conflict of interest and the lack of
meaningful accountability can not be ignored by lawmakers and merits their serious attention.
The corrective action proposed here deals with an issue of judicial ethics and is an important step
toward reform.
Enclosed, is a petition with approximately 500 citizen signatories representing various
backgrounds who support the need for this amendment. The petition, with comments, can also
be seen at http://www.ipetitions.com/campaigns/tulanelink.
I strongly urge you to sponsor or at least support this proposal. It will codifY the intent of
the Judicial Conference and help achieve the goal of equal justice under the law that the public
expects and demands. I also respectfully request the opportunity to offer testimony at the next
Congressional hearing dealing with judicial accountability.
£i
truly,
Carl Bemofsky
Tel: (318) 869-3871
Encl:
Canons on Law School Teaching
Petition with signatures
28 USC Sec. 455, amended
Proposed Bill to amend Title 28
Canons on Law School Teaching
Guide to Judiciary Policies and Procedures,
Vol. II, Chap. V (reissued 6/15/99)
§ 3.4-3(a)
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.
§ 4.1 (b)
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.
~-----~------------------------------~-~~-------~------
Amending the Judicial Recusal Law (28
--
use Sec. 455)
This petition seeks to prevent judges who are faculty members at academic institutions
from adjudicating cases in which those institutions are a party.
BACKGROUND
A federal judge taught at a university, was a board member of one of its research centers,
received $5,500 to teach a summer course at a resort location in Greece, and presided over a
series of lawsuits against that same university during the same period while never disclosing her
association with it. The cases against the university were dismissed without being tried on the
merits.
When the judge's connections with the defendant university were independently
discovered by the plaintiff and the judge was asked to recuse herself, she responded: "There is no
basis for the plaintiffs suggestion that [my] impartiality might reasonably be questioned by virtue
of these ... circumstances under 28 U.S.c. Sec. 455." Subsequent complaints of judicial
misconduct and appeals to compel the judge's recusal were similarly dismissed.
Those events are from the case of Carl Bernofsky v. Administrators of the Tulane
Educational Fund, Civil Action Nos. 95-358, 98-1557, 98-1792, and 98-2102, filed in Federal
District Court for the Eastern District of Louisiana, the Honorable Helen Ginger Berrigan
presiding.
The above example is not unique. Throughout the country, judges who are associated
with universities are routinely called upon to adjudicate cases in which those universities are
defendants in lawsuits.
The relevant canon of the Judicial Conference that regulates judicial conduct in the above
situation states, in pertinent part: "A judge who teaches at a law school should recuse from all
cases involving that educational institution. The judge should recuse (or remit) from cases
involving the university, as well as those involving the law school. .." ... "Similar factors govern
recusal of judges serving on a university advisory board." (Guide to Judiciary Policies and
Practices, Vol. II, Chap. V, Sec. 3.4-3(a), reissued 6/15/99).
Unfortunately, that canon does not have the force of law and thus is unenforceable.
present petition seeks to correct this defect by amending the existing recusal statute with
language that will compel the recusal of judges from cases that involve the educational
institutions at which they teach. The resolution follows.
'
PETITION_08A.wpd
The
Page 1
PETITION
To House and Senate Judiciary Committee Members:
WHEREAS the clear intention of the Judicial Conference regarding judges associated with a
university is embodied in a canon published in the Guide to Judiciary Policies and Procedures,
Vol. II, Chap. V, Sec. 3.4-3(a), reissued 6/15/99, 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 Ijoin with others to strongly urge you to introduce and/or support the
incorporation of Sec. 455(b)(5)(v) into the United States Code, Title 28, Section 455(b), which
adds the following phrase 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."
Laura
Matthew
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MD
NY
PA
TX
FL
SO
FL
IA
ILYSUING
Verona
Pool
Ford
St
Class
Blake
viala
LawrenceSO
GA
Knox
Cleveland
OH
FIRST
NAME
winnsboro
TONAWANDA
Galax
Tea
Ruston
Oakland
HIGH
Lombard
Pineville
DULUTH
saint
Punta
Tarman
LAST
estes
richards
CLASS
SNYDER
borders
thompson
McGilvra
Harms
McCorkle
PELINKA
Kefalos
Braasch
Gibson-Michaels
GOSSIN
Linville
Herbert
martinville
SHOALS
Gorda
NAME
CA
NC
NE
LA
N
10
Robert
retired
EDUCATE
UNEMPLOYED
Behavioral
Forester
lab
50-59
30-39
50-59
60-69
30-39
tech
Health
PEOPLE
SINCE
Counselor/
ON
THE Doctoral
OCCUPATION
VA
Garfield
DiGiesi
NJ
CO
,AGE
juanita
Dwight
Marilyn
Harry
Doyce
Self
retired,
Paralegal
Software
employed
taxpayer
Engineer
Angleton
ball
ground
Thompson
Anthony
Electronics
Retired
military
Engineer
and
student
Tampa
Temple
pineville
Naples
Greenwell
Pittsburgh
Taylor
Burley
geert
Ryan
price
Stegmeier
Cheng
Brady
Hills
Springs
Peyton
CONSTITUTION
FORMER
EDUCATOR
Student,
Cleveland
State University
PETITION_ 08A. wpd
Page 10
santa
maria
David
NY
MI
A.
M.K.
dorinda
Theresa
Todd
TAMMY
Jennifer
Allen
Janes
Thomas
Kim
Dave
Ken
Scott
Lorraine
Dennis
Norma
Dale
Brad
Pam
Barbara
Robin
Harsha
Burr
Laurie
Daniel
Retired
Oil
Technical
self
reti
Disabled
n/a
Court
PAYROLL
homesteader
D.
50-59
40-49
70-79
60-69
70-79
40-49
50-59
,AGE
red
fields
JB.
Mediator
F
CITY
DeKalb
CLERK
Deitz
FL
IL activist
AL
LA
Strunk
Steve
Whistle
FIRST
Robert
Rufus
Constitutional
Judicial
Small
OCCUPATION
30-39
40-49
30-39
30-39
50-59
NAME
Business
Reform
Santa
Cicero
Waitsfield
TUSCALOOSA
Sioux
West
Rantoul
Plano
MODESTO
Ladson
Oneonta
Oak
Crown
semi
Retired
Johnson
Thrasher
Yocum
LAST
Cheeseman
Pedro
Huminski
Lasheff
Carver
Nathan
Mazzell
Fowler
Kreutzer
moreno
Sankar
Martin
Gauthier
Fakkema
Lunn
Harrison
Sheinfeld
DUKE
Kilhoffer
Unruh
Berres
Currier
Jackson
Advocate
HarborWA
Allis
Owner
Activist
retired
Falls
MariaCA
PointIN
NAME
STATE
MN
MO
MA
VT
AL
SD
TX
WI
IN
Cole
Denton
Alabaster
OR
CA
NC
VA
SC
Administrative
assistant
at a
Manire
Christopher
cynthia
Sherry
communications,
Computer
Archaeologist
activist,
retired
Lawyer
President,
lawyer
Realtor
Earl
Technician
INNOCENT!
and
writer,
author
Brooklyn
Waukegan
Reedsport
Lofquist
Myrick
Douglas
Chiropractic
self
Police
Marketing
employed
Patrolman
Muskegon
/Advocate
Sales
Tjapkes
Physician
consultant
(Ret.)
Valley
Cary
Albany
Port
Brighton
East
Eagan
Phenix
Glen
Covington
Hyannis
Berkeley
Duboys
Daley
Richey
Montpelier
Ellyn
Park
City
Arlington
Bossier
City
Bridport
Swiney
college of liberal arts in Vermont
NO.
Page 11
Vicki
NO.
Allan
Kim
Maribel
Larissa
Ali
Carla
Sharon
Deborah
Oscar
Elizabeth
Student
Homemaker
Healthcare
Mandan
administrator
AR
CA
N
NC
NY
JOfficer
Alisa
Ronald
olivia
Mark
Kathi
Marta
eleanor
John
Dale
Bruce
Fred
David
Kathleen
Patrick
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social
contractor
Pro
Owner
50-59
20-29
40-49
60-69
50-59
40-49
18-19
Gstudent
seEstate
worker
Reznik
PA
MO
MA
FL
Suzanne
irwin
Dunn
Retired
50-59
30-39
Fort
Newfield
Roselle
Richlands
Littleton
St.
Vivarttas
Anderson
Nieves
Pollica
Waris
Irwin
Lebbos
Colis
Paul
Smith
Almaden
Park
CO
MN
ND
L.
FIRST
ANESTHETIST
Real
consultant'
OCCUPATION
Bennett
20-29
40-49
60-69
,AGE
NAME
Mt.
Weston
Vancouver
New
CITY
Smithville
EIPaso
Lakeland
Clark
Starkville
Drexel
Arnold
Baranoski
LAST
Rollert
Martinez
Christenson
schiano
Faircloth
Chinn
Munroe
Sadler
Gilliland
Heuton
Laurel
Orleans
Hill
NAME
STATE
JrSquare
WA
MD
AZ
TX
NY
LA
MS
NJ
FL
IL
Jean
law
Student
60-69
Marie
&of
orlando
Correctional
eisenstein
Lacobee
RN,BSN
disabled,
tutor
MO
Betsey
former
Attorney
Computer
attorney
Instructor
Prabhjot
Stephen
Bryant
Firefighter
physician
Software
appraiser
Student!
Lay
Engineer
Porterie,
Advocate/
Jr.,
Sales
P.E.
marketing
Freeport
Hyattsville
analyst
Newtown
child
Stilley
Levy
Hockaday
advocate/lawyer
Licensed
Survivor
Civil
wayne
ferguson
Page
River
Chicago
Sleepy
Sudbury
Owings
corrupt
Hayden
Uppal
pihaylic
Nagy
Gallagher
Bright
Engineer
Ridge
Hollow
judges/courts
retired
Non-practicing
adjunct
Opelousas
Shreveport
instructor
Attorney
of
finance
and
economics
Inactive
Licensed La. Lawyer
PETITION _08A.wpd
Page 12
NO.
OK
n/a
Barbara
william
James
michael
retired
50-59
50-59
norman
Charmane
William
Carl
Linda
wallace
Andrew
WAYNE
Robert
Eslie
John
Joan
Paula
Steven
Paul
FRANK
DEBRA
Retired
Business
Former
60-69
30-39
60-69
Teacher
Owner
BRANDON
Janet
CITY
Vincent
Carlos
Self
Porter
driven
Webb
Germano
out
of
AR
business
Clearwater
new
white
thomas
Emerson
barker
bedfordMA
AZ
Lincoln
pottstown
student
magee
Hackbarth
Student
60-69
Houston
Adams
TX
window
TRUCK
driver
Patternmaker
Disaster
70-79
40-49
cleaner
Audit
DRIVER
West
Enoch
Lake
Nashville
INDEPENDENCE
Cibola
Blauvelt
retired
Smith
Clark
SATCHEL
Nordan
Rickett
Melton
Walzer
JOHNSON
Navin
KENDRICK
Director
Placid
Jordan
MO
NH
TN
CA
PA
FL
Silverthorne
Huet
CO
NJ
FIRST
OCCUPATION
40-49
NAME
LAST
NAME
STATE
NY
Clearfield
Mockaitis
Frederick
40-49
80+
oakhurst
Humble
New
Johnson
Jones
Portilla
York
LA
UT
Constitutional
,AGE
Law
Defender
mccormick
self
employed
Sophie
andAttorney
Wayne
gale
Former
Gipson
Sharing
Shirley
billy
Kingman
Hampton
amy
Memphis
Monroe
Township
Joseph
Court
Reporter
Gray
Apple
Fayetteville
Boyertown
Hughes
Montgomery
Petty
Summit
Valley.
Brooklyn
Salt
Lake
city
Larry
Plaquemine
unemployed
retired
longshoreman
Thompson
Lig
hts
bankrupted
Brigham
by
phillips
lawyers
City
and
judges
PETITION_08A.wpd
Page 13
NO.
Karin
Herb
L
MD
FL
FL
OCCUPATION
K
Jess
James
stan
Charles
Joan
Vito
Whistle
John
Richard
Erich
LS
Mark
R.
bernard
Rita
Dennis
Harsha
Architect
Volunteer
businessman
business
semi-retired
teacher
J.
50-59
40-49
20-29
60-69
50-59
30-39
70-79
60-69
50-59
owner
non
shanbron
McAlian
Knize
Profit
MA
AZ
NY
CT
CITY
Erie
IL
Mooresville
IN
Jacksonville
Boca
Wethersfield
North
Wall
Winston
Lanson
McDermott
Foreman
Lishamer
Raton
MiamiFL
Tucson
Francis
film
Retired
Government
Constitutional-Law
Freelance
Insurance
40-49
maker
Naval
Paramedic
West
Saint
wilton
Meriden
Sierra
boca
Belmont
Paducah
Bronx
Delmar
Pleasanton
Scottsdale
Media
retired
Adams
dunn
Smith
Stewart
Carbonaro
Currier
Shelzi
Friesen
Haas
Braun
Seaman
Sankar
Nord
Nichols
DiBiase
Reform
Officer
raton
Allis
Louis
Vista
Professional
Scholar
Activist
Jr.
MO
OR
DE
VA
KY
WI
FIRST
NAME
Retired
LAST
Huffer
Dickson
NAME
STATE
PA
NV
turtle
oceanside
Wheaton
ricottone
Atkins
creek
CA
Citizen
Journalist,
active
candidate
,AGE
Tavel,
J.D.
Gary
Meryl
George
Rosemary
Megan
Lesley
Bankruptcy
Lawyer
stay
Sales
Entrepreneur
atAssistant
manager
home
police
liquidation
mom
officer
consultant
Tampa
Forest
Heights
stephanie
Tony
tony
Mary
Psychologist
full
Legal
Alice
time
Rights
pro
Delray
Attorney
se
taylor
Gwynn
Advocate/Journalist
litigate
Beach
citizen
Ocean
Coalinga
Sandy
Covington
Tampa
philadelphia
Brooklyn
Father's
Partridge
Ridge
Rights
Activist
Las
Vegas
for United States Congress
Page 14
Dee
NO.
Thomas
Shawn
Sara
Carol
barbara
lawn
care
Dina
Isidoro
VA
Bo
Shahidah
student
retired
40-49
70-79
Alamed
Honolulu
Matara
Musawwir
MA
HI
John
Harlan
Michelle
FIRST
writer
contractor
Real
50-59
50-59
50-59
40-49
NAME
Estate
CITY
Decatur
Lake
LAST
Zhou
Rodeffer
Orion
NAME
STATE
AL
IN
Robert
Kevin
michael
G
Don
David
Riva
scientist
30-39
30-39
baltimore
Pina
Raak
Brooke
morris
MD
CA
NY
P
Athanks
Padilla
Annandale
Stevens
researcher
20-29
Worcester
Redwood
Liu
Abler
Wailehua
FL
Jr.
100%
Disabled
San
West
Ponte
Wade
Glaser
Salters
Grovak
atkins
Mateo
Viet
BranchMI
VedraFL
Nam
MI
Vet mother
OCCUPATION
Victorville
Chadds
Hemet
Seffner
Malden
New
Cortland
Tsalonis
Stein
Hanson
Li
Lovell
Johnson
Zhu
Combier
Francisco
York
Vecche
Ford
OH
OK
60-69
Shi
DC
Fremont
Mason
,AGE
Yong
Dorothy
LlewellynSyracuse
Sudbury
software
engineer
josh
john
Yongping
juvenile
Disability
drywall
construction
detention
logan
officer
Nancy
Betsy
film
carpenter
Legal
Realtor
industry
Secretary
accountant
Citrus
Heights
Attorney-at
Engineer
-Law
Largo
West
Ponca
haines
Port
Mooney
McVay
fabing
Richey
Lafayette
City
city
Springville
Oklahoma
Dayton
unemployed
advocate,
City
journalist
single
disabled
injured
worker
to
Rodriguez,
Esq.
kaiser and the state of California
453
PETITION _ 08A.wpd
Page 15
NO.
n/a
Jack
Joan
Peter
Ms.
FIRST
NAME
CITY
LAST
NAME
STATE
Janet
Flavia
E.
Deborah
50-59
40-49
Allen
darren
James
Financial
Advisor
John
frank
ROSE
Christine
Edwin
Dr
Robert
CATHIE
ACCT
Accountant
Court
Disabled
Professor
Retired
Glenn
60-69
40-49
50-59
70-79
Reform
CLERK
Meriden
Activist
LA
Dan
Maurice
Kristi
Ramkrishna
Bill
Keith
Truck
retired
40-49
Driver
Andover
NY
MA
OCCUPATION
Sarasota
Boston
Shoreline
Clinton
Benitez
Focht
Swanson
WA
MA
FL
Westland
Salem
Stone
Mountain
NH
MI
disabled
30-39
60-69
Williamstown
sarasota
wilton
Albion
LACOMBE
New
Lake
n.bedford
Com
white
Navin
KIRSCH
Lalande
Doberstein
knize
ROCKWOOD
DiBiase
York
OrleansLA
Placid
bier
PA
CT
Fl
NY
Fl
Andrew
Clifton
St.Paul
Port
Blauvelt
Williams
Tare
Walzer
Devine
McCombs
Dahn
Charlotte
VA
MN
NJ
F
lM.D.
50-59
Woodside
Weston
Santa
Newnan
Brown
Hill
Barbara
GA
CA
,AGE
McDonald
PALM
michaels
BEACH
GARDENS
Disability
Jay
Joseph
100%
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Disabled
Jody
gale
private
attorney
general
Cheryl
Christopher
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Self-employed
Ophthalmologist
A.
Jerry
Factory
Worker
Corruption
Advocate
lopez
Stegeman
Moody
Betsy
VA
Disability
Tampa
Boyertown
Westbury
Physician
Crosby
VickersBey
Petty
Cangelosi
III
JD
chiropractor
Former
Manufacturing
Covington
Piscataway
Data
Hanley
Hurley
Kennedy
processing
Co.
owner
business
and owner
Pres.
PETITION_08A.wpd
Page 16
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.
(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"
of litigation;
includes pretrial, trial, appellate review, or other stages
,
(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
proceeding a waiver of any ground of disqualification
(b). Where the ground for disqualification arises only
waiver may be accepted provided it is preceded by a
record of the basis for disqualification.
the parties to the
enumerated in subsection
under subsection (a),
full disclosure on the
(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.
Taken from: United States Code Annotated, Title 28, Judiciary and
Judicial Procedure, West Publishing Co., St. Paul, MN, 1993, Ch. 21,
pp. 656-658, as amended with section (b)(5)(v).
I
110TH CONGRESS
2ND SESSION
H.R.
To amend title 28, United States Code, to provide for the prevention of
inappropriate conduct in the Federal judiciary.
IN THE HOUSE
OF REPRESENTATIVES
JUL Y__
Mr.
, 2008
introduced the following bill; which was referred
to the Committee on the Judiciary
A BILL
To amend
title
28, United
prevention
States
of inappropriate
Code, to provide
for the
conduct
Federal
in the
judiciary.
1
Be jt enacted by the Senate
2
Representa6ves
3
Congress assembled,
4
SECTION 1. SHORT TITLE.
5
6
This
Enhancement
Act
and House of
of the Unjted States of Amen'ca in
may
be
Act of 2007."
cited
as
the
"Judicial
Ethics
2
1
2
SEC. 2. CLARIFICATION OF JUDICIAL RESPONSIBILITY.
(a) IN GENERAL.-Section 455(b)(5) of title 28, United
3
States Code, is amended by adding at the end the following:
4
"(v) Serves as an instructor or on an advisory board of an
5
educational institution that is a party to the proceeding."
6
(b) CHAPTERANALYSIS.-The chapter analysis for
7
chapter 21 of title 28, United States Code, is amended by
8
adding at the end the following:
"455. Disqualification of Justice, Judge, or Magistrate.".