By Judy Clabes
NKyTribune Editor
Judge William O. Bertlesman has denied Northern Kentucky University’s motion that he recuse himself from the Jane Doe case and also to “stay” the proceedings.
“Judicial impartiality and independence are serious matters,” Judge Bertlesman writes (with citations). “The undersigned could not agree more with that statement.
“On December 10, 1979, I took the oath of office to ‘faithfully and impartially discharge and perform all the duties incumbent on me’ as a federal judge. . .In the nearly 40 years since that day, I have upheld that oath to the best of my abilities, every day, in every case.
“Therefore, I will fulfill my duty to see this case through to its conclusion, whatever that may be, without partiality towards any party.”
Judge Bertlesman
Bertlesman is the judge in the Jane Doe vs. Northern Kentucky University lawsuit in which Jane Doe alleges that the “university violated Title IX by responding with deliberate indifference after she was sexually assaulted by a fellow student during the fall semester of 2013.”
Doe was a freshman at the time.
She also included in her original suit NKU President Geoffrey Mearns, Title IX Coordinator Kathleen Roberts and NKU Deputy Title IX Coordinator Ann James for “violations of (her) First and Fourteenth Amendment rights.”
Bertlesman dismissed those claims against the individuals.
He goes on to review the issue — raised by NKU in its motion for recusal — of his grandson’s employment by the law firm representing Jane Doe.
He outlines the facts: His grandson, Nicholas Gregg, applied for an interview with the law firm — Murphy Landen Jones — in August 2016. The firm researched if hiring Gregg would prevent the firm from appearing before Bertlesman and determined that if Gregg did not act as a lawyer or if he did not participate in any way in the case — he was hired as a law clerk while he was in law school and is still a law clerk — there was no issue.
Further Bertlesman states that he had also looked into these issues, when his grandson was beginning to seek employment.
Gregg took the July 2016 Ohio bar exam but began to work as a clerk for the firm in August, not knowing the results of the exam; nonetheless “the firm created an ethical wall so that Gregg would neither work on this case nor be exposed to information about it.”
Subsequently, Bertlesman:
• Dismissed Jane Doe’s complaint against NKU individuals;
• Denied NKU’s request for a gag order;
• Granted sanctions against NKU for obstructive actions about which they had previously been cautioned;
• Granted NKU defendants’ request to dismiss Doe’s claim for violation of “substantive due process” and other claims related to any “possibility that plaintiff could recover punitive damages from the NKU defendants.”
• Dismissed plaintiff’s claim for breach of contract against the NKU defendants.
• Dismissed various claims against defendant Kachurek (former NKU police chief).
• Objected to plaintiff’s notions of “settlement.”
At a hearing on December 7, 2016 “the Court stressed the national importance of the issues raised in Title IX cases such as this, both for alleged perpetrators and their alleged victims.”
He quotes from a transcript of that hearing, in which he said:
“I don’t like to see NKU getting all this bad publicity. Before any of your time, I was one-time president of the Chamber of Commerce, and we had a battle royal[e] to get that university established up here. Lexington fought it. U.K didn’t want the competition. Louisville fought it for the same reason. We fought a battle that went on for years until we finally got this university here. And it’s done well.
“It’s been a real credit to the community. So whatever these issues are, they’ve got to be resolved.
“Both of you, both sides, are at fault for not recognizing this and engaging in a lot of pettiness.”
He also cites an encounter with attorney Jeffrey Mando, who was then new to NKU’s legal team, at a function of the Northern Kentucky Inn of Court in March, 2017, and a general conversation about his grandson taking a job with the Murphy law firm. He “informed Mr. Mando that the statue was being satisfied in that the grandson was not working on this case and that the firm had created an ethical wall to screen him from it.”
Mando is a partner at Adams, Stepner, Woltermann & Dusing, PLLC.
Jeffrey Mando
He says on March 30, 2017, another settlement conference was held in which NKU counsel raised the issue of the grandson’s status and indicated NKU was prepared to file a motion to recuse. “The settlement conference was unsuccessful, and the matter returned to the Court to proceed,” Bertlesman writes.
NKU filed a motion for summary judgment on April 5. “It was apparent to the Court that there were numerous material issues that should be resolved by a jury,” and he denied the motion.
It was docketed at 2:07 p.m. on April 6 and “at 6:44 p.m. NKU defendants filed their motion to recuse.”
Bertlesman cites abundant precedents on relationships and recusal — see the full decision — which support his decision and ends with:
“. . . the Sixth Circuit and other respected authorities note that “[a]lthough a judge is obliged to disqualify himself when there is a close question concerning his impartiality, . . . he has an equally strong duty to sit where disqualification is not required.” United States v. Angelus, 258 Fed. App’x 840, 842 (6th
Cir. 2007) (emphasis added) (citations omitted). See also 13D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 3549 (3d ed. 1998 & April 2017 Update) (“Although some observers have concluded that Section 455(a) abolished the duty to sit in federal court, it is more accurate to say that it alters that duty. Accordingly, a federal judge still has a duty to sit unless there are grounds for recusal.”) (emphasis added).
See a copy of the full decision here.
