Judge Owes An Explanation
August 05, 2005We expect our judges - even semiretired ones - to avoid even the appearance of impropriety, and former Boone Circuit Judge Jay Bamberger fails to meet that expectation in a controversy over his getting paid as a director of a nonprofit group he helped create while he was still behind the bench.
Bamberger's participation is a side issue in a lawsuit that challenges the group's existence and funding, but it's a troubling side issue. Bamberger must think so too - after questions about his role were raised in the lawsuit, he returned more than $50,000 he had been paid over the last year and resigned from the board of the Kentucky Fund for Healthy Living.
The fund was created with money left over from a $200 million settlement of a case arising from the diet drug fen-phen. As the judge who oversaw the case brought by users against the drug's manufacturer, Bamberger approved the settlement and specifically the creation of the fund. He also ordered - and this is especially troubling - that the documents related to that approval be sealed.
A Lexington attorney representing some 200 of the 431 original plaintiffs has sued four attorneys involved in the original lawsuit - including Stan Chesley of Cincinnati - saying the $20 million set aside for the fund should have been distributed to the plaintiffs. The other three attorneys are also directors of the fund and (like Bamberger was) are paid $5,000 a month plus expenses. Northern Kentucky jury consultant Mark Modlin, a friend of Bamberger's, was hired as the non-profit group's president and runs its day-to-day affairs. Bamberger became a director in June 2004, about six months after he retired as judge and signed an order relinquishing the court's control of the settlement.
In 2004, the fund awarded $250,000 in grants for various health-related programs statewide and paid nearly $400,000 in fees to directors and investment managers.
An attorney for the fund said he investigated Bamberger's participation and found no conflict of interest, but frankly we're flabbergasted.
It's not unusual for a fund to come out of a medical class-action suit like this. But it's certainly unusual for a sitting judge to oversee such a fund's creation, then get himself appointed to a $60,000-plus a year part-time position to help run it.
With 22 years on the bench, Bamberger has a reputation to uphold, as well as the reputation of all judges past and present. We think he owes the public an explanation for his actions.
For now he's declining to talk about the case, citing a gag order issued by William Wehr, the semiretired judge appointed by the Kentucky Supreme Court to oversee the overall lawsuit. We think Bamberger - who is not a defendant in the lawsuit - should petition Wehr for permission to speak. The public would like to hear what he has to say.
