Should a judge stand recused in a case involving law school or university where he teaches? Hirczy v. Hamilton, 190 Fed.Appx. 357 (5th Cir. Jun. 29, 2006)

FACULTY RIGHTS V. HANKS - CASE SYNOPSIS

This case was brought to expose and to end a state
university's practice of hiring and paying state court judges
who hear cases in which the university is a party.

THE PLAINTIFFS: Faculty Rights Coalition and Wolfgang
Hirczy de Mino as named plaintiff on behalf of university
employees

THE DEFENDANTS: Named and Unnamed Judges who are
Adjunct Professors of Law, in their official capacities

THE FACTUAL BASIS

Public university hired judges who sit in cases in which the
University is a party (mostly as a defendant) to teach at its law
school, and paid stipends of up to $2,500 per appearance at
CLE seminars to others. Money was funnelled through a
foundation to circumvent state moonlighting restrictions.
University refused to identify the judges, and release the
payment records, but was required to do so under an Open
Records Act ruling. Records reveal that district court judges
who had dismissed suits against the University had been paid
by the University.

THE LEGAL BASIS

Plaintiffs filed federal civil rights complaint averring that the
judges' conflict of interest deprived university employees of
their constitutional right to a fair tribunal in employment
litigation, and sought injunctive relief.

DISPOSITION

U.S District Court initially opined that Plaintiffs did not have
standing to pursue the matter in federal court, but then
dismissed the action under Federal Rule of Civil Procedure
12 for failure to state a claim upon which relief can be
granted. Stated that the conflict of interest issue was one for
the Legislature to address. District Court Judge had, like the
defendants, received payment from the University, albeit in a
lesser amount, and declined to disqualify himself.

CURRENT STATUS OF LITIGATION

Pending in the U.S. Court of Appeals for the Fifth Circuit
Docket No. 05-20348: FACULTY RIGHTS VS. HANKS.

June 29, 2006 - Fifth Circuit rules for the Judges,
dismisses complaint based on lack of standing and
affirms sanctions against Plaintiff imposed by District
Judge Lynn Hughes who had also been paid by the
university and had failed to recuse himself sua sponte
from the case. see link to opinion above

RELIEF SOUGHT ON APPEAL

The Fifth Circuit should reverse the dismissal and establish a
bright-line rule leaving judges with no discretion but to remove
themselves from cases with parties from whom they have
received money, regardless of whether the payment was in
consideration of teaching services, speaking engagements,
or for any other reason.

This Rule should apply irrespective of whether the payment
was made by the institution or one of its components directly,
or at its behest through a third party, such as a foundation or
their private-sector entity.

In order to avoid recrimination and to mitigate the risk of
retribution inherent in contested motions to recuse, and the
chilling effect of this risk, litigants should be permitted to raise
complaints of noncompliance with the new recusal rule for the
first time on appeal.

----------------------

A DIFFERENT APPROACH

For information on a campaign to establish a tougher conflict-
of-interest rule for federal judges, click here. That efforts
stems from a controversy involving a federal judge with ties to
Tulane Law School. The Fifth Circuit affirmed the judge's
refusal to recuse, but Chief Judge King wrote separately in
dissent (Opinion, p. 3):

With respect, I disagree with the panel majority on the matter
of Judge Berrigan’s recusal. A reasonable person would view
the summer teaching assignment in Greece that Tulane Law
School offered to Judge Berrigan, along with $5500 to cover
her expenses, as something of a plum. She accepted that
assignment in the midst of this litigation against the
Administrators of the Tulane Educational Fund, indeed on the
eve of her decision to grant summary judgment in favor of the
Fund. Under the circumstances (and with a record devoid of
any evidence of attenuation in the relationship between the
Fund and the Law School), I think that a reasonable person
might question her impartiality. I would reverse the judgment
and remand with instructions to send the case to another
judge.

Appeal from: Carl Bernofsky v. Administrators of the Tulane Educational Fund, Civil
Action Nos. 95-358, 98-1557, 98-1792, and 98-2102, in the Federal District Court
for the Eastern District of Louisiana