Court Does Not Order Recusal After Proceedings Complete
IN RE: BERGERON (MARCH 4, 2011)
Lucille Iacovelli was not happy with her plastic surgery. She allegedly posted several derogatory comments about the doctor on the Internet. The doctor brought suit for, among other things, defamation. The district court judge entered an injunction ordering that all such postings be removed. Rich Bergeron maintained some of the websites that contained the alleged defamatory postings and was, for purposes of the injunction, Iacovelli's agent. Judge Barker (S.D. Ind.) refused Bergeron's request for her to recuse herself, held him in contempt, and imposed a monetary sanction. The defamation suit remains pending in the district court and Bergeron's appeal from the sanctions order is pending in the appellate court. Here, Bergeron petitions for a writ of mandamus in order to remove Judge Barker.
In their opinion, Judges Posner, Williams, and Tinder denied the petition. The Court first distinguished between Bergeron's desire to remove the judge from the defamation case and his desire to remove her from the contempt proceedings. Bergeron is not a party to the defamation case. As such, he has no basis on which to seek Judge Barker's removal. He is obviously a party to the contempt proceedings and mandamus is a proper vehicle to bring the recusal issue to the Court's attention. But here, the judge is through with the case -- there is nothing to remove her from. The Court indicated that the result could have been different under two scenarios. First, Bergeron sought mandamus before the sanction was imposed. Had he also sought and been granted a stay of those contempt proceedings, the Court could have considered his arguments. Second, the Court indicated that it might have ordered a new proceeding in an "egregious case" of bias. The appearance of impropriety alleged here is not such a case.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select