NKyTribune staff
The U.S. Sixth Circuit Court of Appeals has denied Northern Kentucky University’s motion to compel U.S. District Judge William O. Bertelsman to recuse himself in the Jane Doe sexual assault case.
Judge Bertelsman
Jane Doe, an NKU student, claims in the lawsuit that she was raped in a campus dorm as a freshman, took her case through the university’s system which found in her favor, and that the university subsequently did not enforce sanctions against the offender or provide her with adequate protections from him.
NKU called Bertelsman’s impartiality into question because he failed to divulge that the law firm representing Plaintiff Jane Doe hired his grandson as a law clerk while this action was pending.
The motion asserts that the Murphy Landen Jones law firm which represents Jane Doe “hired Judge Bertelsman’s grandson as an attorney during the pendency of this case” and that the Court’s “impartiality might reasonably be questioned.”
The motion also said Doe’s counsel had a responsibility to disclose the hiring and that the grandson’s name does not appear on its website or stationary.
The motion for recusal was filed immediately after Judge Bertelsman ruled against an NKU motion for summary judgment in the case.
The Sixth Circuit ruling on the motion by Northern Kentucky University for U.S. District Judge William O. Bertelsman to recuse himself in the Jane Doe sexual assault case. * Note page one of this document identifies the case number (Re: Case No. 17-5535, In re: Northern Kentucky University Originating Case No. : 2:16-cv-00028) and identifies the parties to this motion. Click to enlarge.
For more information on the filing, click here.
Bertelsman, who has been a federal judge since 1979, serves in the Eastern District of Kentucky.
NKU alleged that a reasonable person would question the judge’s impartiality because:
(1) in denying recusal, the judge only adequately considered whether recusal was required under § 455(b)
(2) the firm and the judge failed to timely disclose Gregg’s employment or the potential conflict;
(3) the firm never detailed the measures used to screen Gregg’s participation in the case
(4) the extensive publicity and contentious nature of the litigation required greater impartiality
(5) the resolution of several discovery disputes and other motions in Doe’s favor, as well as the timing of the ruling on the motion for summary judgment, suggested that the judge was biased in Doe’s favor.
The Sixth Circuit’s criteria for its consideration of the motion to recuse states, in part:
“Although we may consider a mandamus petition following the district court’s denial of a motion to recuse, mandamus is a drastic remedy granted only if the petitioner can ‘show a clear and indisputable right to the relief sought.’ Recusal is required ‘only if a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned,’…based on ‘the facts as they existed, and not as they were surmised or reported,’… And, if ‘the standards governing disqualification have not been met, disqualification is not optional; rather, it is prohibited.’”
The Tribune asked its attorney, Kathie Grisham, to examine the motion prior to today’s decision. Grisham termed it “baseless” and “a stall tactic because they are not getting their way. NKU has tried other tactics, all of which have failed. It appears NKU does not want this case to go to trial.
“Attorneys often have family members who are attorneys. Nothing prevents law firms from arguing cases in federal court as long as certain rules are followed.
“In this case, at the time NKU filed their motion, the grandson was not an attorney in Kentucky, as the motion claims. He was and is a law clerk, a glorified assistant.”
Ultimately, the Sixth Circuit determined NKU failed to make its case:
“Having considered the entire record, we conclude that NKU has failed to “show a clear and indisputable right to the relief sought,” and that mandamus relief is therefore inappropriate. Thus, the mandamus petition is DENIED. – “
