In Re Bergeron
2011 U.S. App. LEXIS 4370
7th Cir.2011Background
- Bergeron sought mandamus to remove the district judge presiding over Eppley v. Iacovelli due to alleged appearance of bias.
- Bergeron had repeatedly urged recusal of the judge, but did not intervene in the underlying contempt case as a party.
- Eppley sued Iacovelli; the district judge issued a preliminary injunction requiring removal of Internet postings about Eppley.
- Bergeron’s postings related to Iacovelli’s complaints against Eppley; he did not comply with the injunction.
- The contempt proceeding culminated in sanctions against Bergeron; his mandamus petition was filed during the contempt matter.
- The Seventh Circuit denied mandamus because the judge had already finished the contempt proceeding and the appearance of bias was not egregious enough for recusal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus is proper to remove a judge for appearance of bias | Bergeron asserts bias appears and seeks removal via mandamus | Judge is not required to be removed; appearance is too attenuated and case is finished | Denied; mandamus not appropriate |
| Whether Bergeron, as a nonparty, can obtain recusal relief | Bergeron has an interest and could intervene to seek relief | Nonparty status prevents automatic party rights; intervention uncertain | Denied; not entitled to recusal relief |
| Whether the remedy of recusal is preferable to an appeals remedy for bias | Recusal would preserve appearance concerns before trial | Appeal and other remedies are insufficient or untimely here | Prefers recusal in advance; here, appearance of impropriety was too attenuated |
Key Cases Cited
- Marino v. Ortiz, 484 U.S. 301 (Supreme Court 1988) (nonparty cannot inject without intervention; mandamus available when rights affected)
- SEC v. Enterprise Trust Co., 559 F.3d 649 (7th Cir. 2009) (mandamus to address bias-related recusal concerns)
- National Ass'n of Chain Drug Stores v. New England Carpenters Health Benefits Fund, 582 F.3d 30 (1st Cir. 2009) (intervention and party rights in bias contexts)
- In re Sherwin-Williams Co., 607 F.3d 474 (7th Cir. 2010) (mandamus to challenge judge's conduct in proceedings)
- United States v. Diekemper, 604 F.3d 345 (7th Cir. 2010) (mandamus as vehicle for removal for appearance of bias)
- In re United States, 441 F.3d 44 (1st Cir. 2006) (appealability and recusal considerations in bias contexts)
- Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (Supreme Court 1988) (appearance of bias; prefer recusal to preserve public trust)
- United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (preference for early corrective measures to avoid bias impact)