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7th Circuit denies petition to remove judge

March 4, 2011

The 7th Circuit Court of Appeals denied a man’s petition for writ of mandamus to remove a federal judge from a case he is involved with that’s still pending in District Court. The man failed to intervene in the case and his interest in the case is too uncertain to give him the rights of a party automatically, the judges ruled Friday.

Rich Bergeron repeatedly asked U.S. Judge Sarah Evans Barker of the Southern District of Indiana to recuse herself in Eppley v. Iacovelli. Plastic surgeon Dr. Barry Eppley sued former patient Lucille Iacovelli in 2009 for defamation and other claims stemming from her dissatisfaction with a face-lift he performed. Judge Barker issued a preliminary injunction ordering Iacovelli and anyone acting as her agent to remove all Internet postings that referred to the surgeon. Bergeron maintained some of those websites, so he was subject to the preliminary injunction. He didn’t remove the postings and was held in contempt and ordered to pay Eppley more than $1,700 as a sanction. Iacovelli died in August 2010, but the defamation suit remains pending, now naming her sister as the defendant.

In addition to finding that Bergeron never intervened in that defamation case and his interest in it is too uncertain to give him the rights of a party automatically, the Circuit judges addressed his desire to remove the judge from the contempt proceeding. Mandamus is a proper vehicle for removing a judge from a case on the ground that the judge’s impartiality might be questioned, as Bergeron argues, wrote Judge Richard Posner in In Re: Rich Bergeron, No. 10-3279.
 
Bergeron asked for the mandamus before Judge Barker concluded the contempt proceeding, but he didn’t ask the 7th Circuit to stay the proceeding in the District Court. Now it’s too late for the appellate court to order the judge removed from the case because she’s finished with it, Judge Posner continued.

“We could order a do-over of the contempt proceeding were this an egregious case of apparent bias … but the appearance of impropriety in this case is too attenuated to justify that extraordinary remedy.”

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