By Judy Clabes
Northern Kentucky University’s attorneys have filed a motion in U.S. District Court asking presiding Senior Judge William O. Bertlesman to recuse himself from the Jane Doe sexual assault case.
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.
Attorneys Bryan H. Beauman and Katherine M. Coleman with Sturgill, Turner, Barker & Moloney law firm in Lexington and Jeffrey C. Mando with Woltermann & Dusing law firm in Covington signed the motion.
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.
Bertelsman has ordered Jane Doe’s council to respond to the motion by April 19 and for NKU to respond to that response by April 22.
Bertelsman will then rule on the motion.
NKU issued the following statement on the matter:
As a trial date approaches – this one is May 15 at U.S. District Court in Covington – it is not unusual for a flurry of motions to be filed, though one asking for a judge’s recusal is unusual.
The Tribune asked its attorney, Kathie Grisham, to examine the motion. 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.”
The Tribune spoke to another attorney considered an expert on attorney ethics. He asked not to be identified. He has not read the actual motion and couldn’t comment on the case itself.
But, in answer to specific questions, said he saw no ethical or legal breaches in the hiring of a law clerk having a kinship relationship with a federal judge. It would be improper, he said, to list a law clerk on a website or on stationary.
“Law clerks come and go,” he said. “The fact that this person is newly licensed in Ohio would have no bearing on a Kentucky case.”
Murphy told the Tribune that Nicholas Robert Gregg, the grandson, was hired in August 2016, as a law clerk. He has since passed the Ohio bar and can practice in Ohio but for the firm, he is a law clerk. Gregg received notice of successfully passing the Kentucky bar on April 7 but has not been sworn in and still cannot practice law in Kentucky.
His duties at Murphy Landen Jones are those routine to law clerks and the firm has not used him on any activities related to the Jane Doe vs. NKU case, Murphy said.
Murphy is preparing a response to the motion and expects to deliver it by the due date.
He refused further comment.
NKU’s motion includes documentation of an email stream with Bertelsman discussing the issue and this response from the Judge via his Career Law Clerk Dawn Rogers on April 4:
NKU’s motion also includes this screen shot from AVVO.com on Gregg showing he is licensed in Ohio. This site is an online legal services marketplace providing a database of legal information and reviews; it asks “Claim your profile.” It sells services to lawyers.
Grisham offered the NKyTribune the current listing for Gregg from the Supreme Court of Ohio. It says he was admitted to the Ohio bar on November 11, 2016 and is currently a law clerk at Murphy Landen Jones PLLC.
Bertlesman himself has been a federal judge since 1979, having been nominated by Pres. Jimmy Carter. He was in private law practice and service as a US Army captain in the Vietnam War prior to his appointment. He served as Chief Judge of the Court from 1991 to 1998 and is now on senior status.
“I have known Judge Bertelsman since about 1970 — when I was still a law student and he was one of my Professors at U. of Cincinnati Law School. In the very early days of my practice, before he went on the Bench, I knew him as a lawyer,” says Robert E. Sanders of The Sanders Law Firm in Covington. “I have, of course, had many cases before him as a judge.
“In every capacity in which I have known him, Judge Bertelsman has always been a man of the utmost integrity. He gives everyone who comes before him the same equal and impartial opportunity to obtain justice. In his court, the way to win is to be right, to have truth on your side.
“I express no opinion about the merits of Mr. Murphy’s case, nor of NKU’s defense, because I don’t know the facts, but if I represented either party and thought that truth and justice were on my client’s side, I would want Judge Bertelsman to be presiding over the case — and I wouldn’t be the least bit concerned about who his grandson worked for.”
Long-time attorney Mark Arnzen of Arnzen, Storm & Turner in Covington, agrees. Arnzen has practiced law since 1972 and has served as president of the Kenton County Bar Association. He couldn’t speak to the specific case, but he has plenty of experience in Bertlesman’s court.
“Judge Bertlesman does what he believes is right,” Arnzen said, “regardless of the people involved.”
Grisham, the Tribune’s attorney, found plenty of precedents on recusal. They deal with “proof of partiality,” say a judge has just as much responsibility to not recuse himself as to recuse himself, that “judge shopping” is a serious blow to the integrity of the system, and more. Here are some examples of precedents:
Judges Sufficiency of Objection or Affidavit
Plaintiffs seeking a judge’s recusal on ground that his family member has interest in litigation are required to offer proof of partiality; unsupported, irrational, or highly tenuous speculation will not do. 28 U.S.C.A. § 455(b)(5)(iii).
Judges Relationship to Attorney or Counsel
Fact that corporation which was defendant in multi-district litigation might have been “significant” client of law firm at which judge’s son was shareholder did not necessitate judge’s recusal under statute requiring disqualification where a judge’s family member had significant interest in litigation. 28 U.S.C.A. § 455(b) (5)(iii).
Judges Relationship to Party or Person Interested
Relationship between a party to litigation and a judge’s son or daughter does not per se necessitate a judge’s disqualification; rather, determination of whether a conflict exists in a given situation is factually bound. 28 U.S.C.A. § 455(b)(5)(iii).
Judges Bias and Prejudice:
Provision of disqualification statute requiring a judge to disqualify himself where his impartiality might reasonably be questioned is broader than provision requiring recusal where judge’s family member is known to have interest in action that could be substantially affected by its outcome, 28 U.S.C.A. § 455(a), (b)(5)(iii).
Sensitive issue of whether a judge should be disqualified requires a careful examination of relevant facts and circumstances to determine whether charges reasonably bring into question a judge’s impartiality. 28 U.S.C.A. § 455.
Purpose of statutory provision requiring a judge to disqualify himself where his impartiality might reasonably be questioned is to promote confidence in judiciary by avoiding even appearance of impropriety whenever possible. 28 U.S.C.A. § 455(a).
Judges are presumed to be impartial and, accordingly, parties seeking recusal bear substantial burden of proving otherwise. 28 U.S.C.A. § 455.
A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is; otherwise, parties could easily engage in judge shopping and deal serious blow to integrity of court system. 28 U.S.C.A. § 455.
Grisham notes that a request for recusal is serious and requires a heavy burden of proof. Gregg’s status as a law clerk for the Murphy firm makes the burden heavier.