30
LOUISIANA JUDICIAL COLLEGE 2016 Spring Conference for Judges April 14 and 15 Double Tree by Hilton, Lafayette Adjudication: Judging Others, Judging Yourselves, and Being Judged by Others DONA RENEGAR Huval Veazey Felder & Renegar LLC Facilitator JUDGE JOHN CONERY 3rd Circuit Court of Appeal

Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

  • Upload
    others

  • View
    18

  • Download
    0

Embed Size (px)

Citation preview

Page 1: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

LOUISIANA JUDICIAL COLLEGE 2016 Spring Conference for Judges

April 14 and 15 Double Tree by Hilton, Lafayette

Adjudication: Judging Others, Judging Yourselves, and Being Judged by Others

DONA RENEGAR Huval Veazey Felder & Renegar LLC Facilitator JUDGE JOHN CONERY 3rd Circuit Court of Appeal

Page 2: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS

Louisiana Judicial College

Spring Judges Conference

April 15, 2016 11:20 a.m.

Presented by:

Dona K. Renegar Huval, Veazey, Felder & Renegar 2 Flagg Place Lafayette, LA 70508 (337) 234-5350

[email protected]

Acknowledgment – Thanks to Judge Durwood Conque of the Fifteenth Judicial District Court for his contribution

Page 3: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

2

JUDGING OTHERS I. CONTINUANCES

A. Code of Civil Procedure Articles 1601-1605

1. C.C.P. Article 1601 Discretionary grounds A continuance may be granted

in any case if there is good ground therefor. 2. C.C.P. Article 1602 Peremptory grounds A continuance shall be granted if

at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

3. C.C.P. Article 1603 Motion for continuance A motion for continuance shall

set forth the grounds upon which it is based, and if in writing shall comply with the provisions of Article 863 (Signing of pleadings, effect).

4. C.C.P. Article 1604 Prevention of continuance by admission of adverse party When a party applies for a continuance on account of the absence of a material witness, the adverse party may require him to disclose on oath what facts he intends to prove by such witness, and if the adverse party admits that if the witness were present he would testify as stated in the affidavit, the court shall proceed to the trial of the case.

5. C.C.P. Article 1605 Trial of motion; order Every contested motion for continuance shall be tried summarily and contradictorily with the opposite party.

B. Factors to Consider When Filing a Motion for Continuance

1. Contact with the judge’s office

• Always include an order setting an opposed motion for continuance for hearing.

• Do not discuss the grounds of the motion for continuance if you call the judge’s office.

Page 4: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

3

• If you have a trial in the near future some judges will allow you to argue the motion for continuance telephonically. The other party must agree to have the hearing via telephone, there will be no record, and you are bound by the ruling.

• An illustrative list of factors judges use to determine if you have good grounds for a motion for continuance include: the diligence and good faith of the moving party, the reasonableness of the grounds, the fairness to both parties and other litigants before the court, and the need for the orderly and prompt administration of justice. Louisiana District Court Rule 9.17.

2. Common “factors” cited by lawyers to get a continuance

• This case has never been continued before.

• My opponent has already gotten a continuance, so I should get one too.

• I have not had time to prepare for trial.

• I have a family vacation scheduled for that week.

• I thought we were going to settle.

3. Practical pointers

• Always let the court know if your motion for continuance is opposed as many judges will grant an unopposed motion for continuance without a hearing.

• Be prepared to reschedule the trial right away and have your calendar

ready. • Never present a motion for continuance to any judge other than the one to

whom the case is allotted unless you have permission. 4. Why are judges cautious about continuances

• Civil cases should be settled, tried or otherwise concluded within nine (9) months of the date a motion to set for trial is filed, except for individual

Page 5: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

4

cases in which the Court determines exceptional circumstances exist and for which a continuing review should occur. Louisiana Supreme Court Rule Part G, Section 6. Time Standards Louisiana District Courts (A).

• Proceedings using summary hearing procedures should be concluded within forty-five (45) days from service of process. Louisiana Supreme Court Rule Part G, Section 6. Time Standards Louisiana District Courts (B).

• Domestic relations matter should be settled, tried or otherwise concluded within four (4) months of the date of case filing, except for individual cases in which the Court determines exceptional circumstances exist and for which a continuing review should occur. Louisiana Supreme Court Rule Part G, Section 6. Time Standards Louisiana District Courts (C).

II. BRIEFS AND MEMORANDA

A. Getting them in on time

1. When filing exceptions or motions you should file the supporting memorandum and serve a copy of same to all parties and the trial judge concurrently. The memorandum shall be served on all parties at least fifteen (15) calendar days before the hearing unless the court sets a shorter time. Louisiana District Court Rule 9.9(b).

2. The opposing party to an exception or motion shall serve a copy of an opposition brief to all parties and furnish a copy to the trial judge concurrently. The opposition memorandum shall be served on all parties at least eight (8) calendar days prior to the hearing unless the court sets a shorter time. Louisiana District Court Rule 9.9(c).

3. The mover may furnish the judge and serve on all parties a reply memorandum as long as it is received before 4:00 p.m. on a day that allows one (1) full working day before the hearing. Louisiana District Court Rule 9.9(d).

4. Failure to abide by these rules may result in waiver of oral argument and failing to timely serve a memorandum necessitating a continuance to give the other party a fair chance to respond, can result in the court ordering the late-

Page 6: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

5

filing party to pay the opposing side’s costs incurred on account of the untimeliness. Louisiana District Court Rule 9.9(e).

B. Getting them to the proper place

1. Any party may, but need not, file a copy of the memorandum with the clerk of court. Louisiana District Court Rule 9.9(f). See Rule 9.4 and Appendix for Rule 9.4 for whether a particular judicial district court requires that memoranda be filed with clerk of court or sent directly to the presiding judge.

2. Make sure you know where your presiding judge is located when you provide a copy of the memorandum especially in multi-parish districts.

3. Determine whether the judge’s law clerk wants to receive a copy of the memorandum and provide same.

III. DECISIONS AND JUDGMENTS

A. Timing of judgment

1. C.C.P. Article 1637 Completion of trial; pronouncement of judgment After trial is completed, the court may immediately pronounce judgment or take the case under advisement.

2. Louisiana Supreme Court Rule G, Section 2(a) A case or other matter shall be considered as fully submitted for decision to the trial judge, and should be decided, immediately upon conclusion of trial or hearing, and judgment signed expeditiously thereafter.

3. LSA-R.S. 13:4207 If oral reasons for judgment are not rendered in open court

and the matter is taken under advisement then district and city court judges have thirty (30) days from the time the case is submitted to render a written judgment.

a. LSA-R.S. 13:4210: Penalty provision for judge who violated above

statute shall be withholding by clerk of court of one-quarter’s salary of that judge for each violation.

b. But see Prejean vs. Acadia Parish Clerk of Court, 107 So.3d 569, 2012-1177 (La. 1/29/13) holding that LSA – R.S. 13:4210 is unconstitutional.

Page 7: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

6

• District Court heard a custody hearing and took the matter under

advisement. Decision was not rendered for approximately five (5) months.

• The claimant filed a writ of mandamus against the clerk seeking an order requiring the clerk to notify the legislative auditor that the district judge failed to render a decision within the time prescribed.

• District Court denied the writ of mandamus. Prejean then filed an appeal with the Third Circuit Court of Appeal which raised the issue of the constitutionality of LSA-R.S. 13:4210 sua sponte was unconstitutional on its face because the legislature lacked the authority to regulate judicial conduct; because the statute reduces the judge’s salary without proper notice to the judge violating the due process clause; and the description of “one quarter salary” was unconstitutionally vague.

• Supreme Court found that there is a very limited exception to the rule that a constitution challenge must be raised in the trial court when the statute, as drawn, is clearly unconstitutional on its face.

• The Supreme Court found that the statute usurped the powers which our constitution grants exclusively to the Supreme Court, i.e. judicial discipline.

• The Supreme Court found that because the general administrative rules allow a judge to provide an explanation for any delay in a decision, that it runs afoul of the mandatory withholding of the salary provided in the statute. Finally, the court found that the statute conflicted with the constitutional provision providing that compensation of a judge shall not be decreased during the term for which he is elected.

• The Third Circuit has refused to extend the holding of Prejean to LSA-R.S. 23:1141, the statute regulating attorney’s fees in workers’ compensation matters. Pitre v. Bessette Development Corp., 2013-588 (La.App. 3 Cir. 11/6/13), 126 So.3d 869.

4. Supreme Court allows more time in exceptional cases If the court orders

post-trial briefs or a transcript then the plaintiff is allowed up to twenty (20)

Page 8: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

7

days to file a brief; the defendant is allowed up to twenty (20) days from the filing or lapse of filing plaintiff’s brief (whichever occurs sooner) to file a brief. If the defendant timely files a brief, then the plaintiff shall be allowed up to ten (10) days within which to file a rebuttal brief. The judge may extend the time to file a brief not to exceed the original time granted. Supreme Court Rules G Section 2(a).

5. Judges’ reporting requirements Each judge of a district, juvenile, family, parish, city municipal or traffic court shall report to this court through the office of the Judicial Administrator, on or before the tenth day of each month, all cases which have been fully submitted and under advisement for longer than thirty (30) days, together with an explanation of the reasons for any delay and expected date of decision. Louisiana Supreme Court Rule G Section 2(b).

B. Judgments

1. Jury cases

• The court prepares and signs the judgment within ten (10) days of the rendition of the verdict, or

• The court may order any counsel to prepare the judgment and submit it to the court for signature within ten (10) days of the rendition of the verdict. Code of Civil Procedure Article 1916(A).

2. Compromise Agreement on the Record

• Court may order any counsel to prepare and submit a judgment to the

court for signature within twenty (20) days of the recital. Code of Civil Procedure Article 1916(B).

3. Louisiana District Court Rule 9.5 Court’s Signature; Circulation of Proposed Judgment; Request for Reasons for Judgment

• This rule applies to all judgments, orders, and rulings except default

judgments. Louisiana District Court Rule 9.5(a) and (d).

Page 9: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

8

• If the judgment is being presented after a decision has been rendered then the judgment must contain a typewritten name of the deciding judge. Louisiana District Court Rule 9.5(a).

• Counsel must circulate the proposed judgment to all counsel and unrepresented parties and allow five (5) working days for comment before presentation to the court. Louisiana District Court Rule 9.5(b).

• When presented, the judgment must have an accompanying certificate stating: the date of mailing, the method of delivery of the document to other counsel of record, and to self-represented parties; whether any opposition was received; and the nature of the opposition. Louisiana District Court Rule 9.5(b).

4. Every final judgment shall be signed by the judge except as otherwise provided by law Code of Civil Procedure Article 1911.

5. An interlocutory judgment shall be reduced to writing if:

a. The court so orders,

b. A party requests same within ten (10) days of rendition in open court, or

c. If the court takes the interlocutory matter under advisement. Code of Civil

Procedure Article 1914(B)

6. A Partial Final Judgment may be rendered and signed under certain circumstances Code of Civil Procedure Article 1915.

C. Findings of the court and reasons for judgments

1. Involves all contested and appealable non-jury cases

2. Requires request to do so by a party

3. The court has ten (10) days after the mailing of the notice of signing of

judgment

4. The court shall give in writing its findings of fact and reasons for judgment Code of Civil Procedure Article 1917(A).

Page 10: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

9

D. Amendment of Judgments

1. A final judgment may be amended at any time;

2. On motion of the court or any party;

3. With or without notice;

4. Only to alter the phraseology of the judgment and not its substance; or

5. To correct errors of calculation. Code of Civil Procedure Article 1951. E. Requests for Attorneys’ Fees and Other Blanks in Judgments

1. Attorneys’ Fees

• Not generally awarded without specific allowance by statute.

• Always state the authority for attorney fees claim so that the judge knows that the party is entitled to them.

• Offer evidence to support the claim for attorney fees in the form of testimony or an affidavit showing time and expenses and work done to support the claim

• Do not leave a blank in the order for the judge to decide. Suggest an amount based upon your evidence.

2. Blanks in Judgments

• Do not make the judge research the law on what amount of surety or any other figure in a judgment should be.

• Cite the appropriate statute and do the math.

• Bring the order to the judge personally or call with a suggested figure.

• Attach a short memo or paragraph in the cover letter citing the law, the suggested amount, and why.

Page 11: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

10

JUDGING YOURSELVES I. CODE OF CIVIL PROCEDURE ARTICLES 151-161

• Recusation of a judge is a serious and important legal procedure. In Re: Lemoine 96-2116 (La. 1/14/97), 686 So.2d 837, 839; on rehearing, 96-2166 (La. 4/4/97), 692 So.2d 358.

• A judge does not have the right to take himself out of a case and burden another judge

with his responsibility without good and legal cause. Id. at 840.

A. C.C.P. Article 151 Grounds for Recusal

1. Mandatory Grounds – Article 151(A)

A trial or appellate judge shall be recused when:

• He is a witness in the cause, has been employed or consulted as an attorney in the cause, has previously been associated with an attorney during the attorney’s employment in the cause, and participated in the representation of the cause;

• Is a spouse of a party or of an attorney;

• If the judge’s parent, child, or immediate family member is a party or attorney employed in the cause;

• He is biased, prejudiced, or interested in the cause; and

• Biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to the extent he would be unable to conduct a fair and impartial proceeding.

2. Discretionary Grounds - Article 151(B)

A trial or appellate judge may be recused when:

• He has been associated with an attorney during the attorney’s employment

in the cause;

Page 12: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

11

• At the time of hearing for contested issues in the cause, employs the attorney personally who is actually handling the cause (not just a member of that attorney’s firm);

• Has performed a judicial act in the cause in another court;

• Is related to: a party or spouse of the party within the fourth degree, an attorney or the spouse of an attorney within the second degree, or if the judge’s spouse, parent, child, or family member living in the judge’s household has a substantial economic interest in the subject matter at issue sufficient to prevent the judge from conducting a fair and impartial proceeding.

3) C.C.P. Article 151(C)

• In any case involving a state or political subdivision of a state or religious

body or corporation, the fact that the judge is citizen of the state, a resident of the political subdivision, pays taxes thereto, or is a member of the religious body or corporation is not a ground for recusation.

4) General Case Law

• When a party seeks to recuse a judge based on the allegations of bias or

prejudice, there must be a finding of actual bias or prejudice of a substantial nature and based on more than conclusory allegations. David v. David, 14-999 (La. App. 3 Cir. 2/4/15), 157 So.3d 1164, writ denied 2015-0494 (La. 5/15/15), 170 So.3d 968.

• Adverse rulings alone do not show bias or prejudice requiring a recusal of a judge. Id. at 1168.

• A mere finding that the judge is interested in a cause is not sufficient to require his recusal, rather, there must be a finding that the judge is interested to such an extent that he would be unable to conduct a fair and impartial proceeding. Winkle v. Relay Admin. Bd. 2012-0944, (La. 6/29/12), 91 So.3d 300.

• All the judges in a judicial district were recused in a negligence action against the Parish Juvenile Justice System Commission as it was likely the judges would be biased in that two (2) of the members of the Commission

Page 13: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

12

were appointed by the judges in that judicial district. Florida Parishes Juvenile Justice Com’n ex rel. Florida Parishes Juvenile Justice Dist. v. Hannis T. Bourgeous, L.L.P., 2012-1003 (La. App. 1 Cir. 9/6/12), 102 So.3d 860.

• The dissent noted that an independent judge found no evidence of bias

and that the district judges had no direct financial interest in the outcome of the case. Id. at 863.

B. C.C.P. Article 152 – Recusation on Court’s Motion

• A judge may recuse himself whether a motion has been filed by a party or not.

• A district judge may recuse himself in any cause objecting to the candidacy or contesting the election for any office in which the jurisdiction of such office lies wholly within the judicial district from which the judge is elected.

• The district judge may make written application with the supreme court for

recusal for any reason which that court considers sufficient. • If a judge recuses himself pursuant to this article, he must provide the specific

grounds for the recusal within fifteen (15) days of the rendering of the order of recusal.

• Judge who had recused herself did not have authority to sign a judgment

sustaining an exception she had orally granted prior to the recusal. Revere v. Stain, 2002-0254 (La. App. 1 Cir. 12/31/02), 837 So.2d 137.

C. C.C.P. Article 153 – Judge’s Actions

• Until a judge has recused himself or a motion for recusation has been filed, he has full power to act in the matter.

• The judge to whom the motion to recuse is assigned shall have full power and authority to act in that matter pending the disposition of the motion to recuse.

• The fact that a judge was the subject of a proceeding before the judiciary commission did not warrant a recusal as the supreme court chose not to remove the judge from the bench during the pendency of the proceeding. Lozier v. State of Elmer, 10-754 (La. App. 5 Cir. 2/15/11), 64 So.3d 237.

Page 14: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

13

D. C.C.P. Article 154 Procedure for Recusation

• A party desiring to recuse a district court judge shall file a written motion noting the grounds for recusation.

• The motion shall be filed prior to trial/hearing unless the party discovers the facts on which the recusation is based thereafter, in which event a motion shall be filed immediately after the facts are discovered but prior to judgment.

• If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or judge ad hoc.

• Only after a motion with a valid ground for recusation is filed must a judge

either recuse himself or refer the motion to another judge. In re Free, 2014-1828 (La. 12/9/14), 158 So.3d 771, rehearing denied (La. 2/6/15).

• A judge can deny a motion to recuse if there is no valid ground for recusation set forth in the motion. David v. David, 14-999 (La. App. 3 Cir. 2/4/15), 157 So.3d 1164, writ denied 2015-0494 (La. 5/15/15), 170 So.3d 968.

• Father in a custody dispute reports in his meeting with the court appointed

psychologist that he delivered cash to judicial candidates for his former father-in-law and was worried about the influence he may exert in the custody proceeding.

• At trial after the testimony regarding these allegations, the trial judge commented that he did not receive any money from the former father-in-law after which, the court and all counsel chuckled.

• Mother filed a motion for recusation of the judge alleging he was now a witness in the case which mandated his recusal from the matter as he was the only witness that could testify as to the credibility of the father’s allegations.

• The trial judge refused to deny the motion to recuse outright and instead, referred it to another judge.

• The new judge found that the allegations did not make the trial judge a de facto material witness in the child custody case in that other witnesses may

Page 15: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

14

be called to testify as to the father’s credibility including the former father-in-law himself and psychological experts.

• The judge’s use of the word “liar” in reference to a wife in a child custody

dispute, while inappropriate, was not enough to show the trial judge was prejudiced. Suazo v. Suazo, 2077-10795 (La. App. 1 Cir. 9/14/07), 970 So.2d. 642, writ denied 2007-2291 (La. 12/14/07), 970 So.2d 539.

• A trial judge’s comment “hooray for you” in response to a mother’s statement that she took her daughter to have her belly button professionally pierced instead of doing it herself did not rise to the level of actual bias to warrant a recusal in a custody matter. Brown v. Brown, 39,060 (La. App. 2 Cir. 7/21/04), 877 So.2d 1228.

E. C.C.P. Article 155 Selection of Judge to Try Motion to Recuse: Two or More

Judges • In a district court having two judges, the judge who is sought to be recused

shall have the motion for recusation referred to the other judge for trial.

• In a district court having more than two judges, the motion to recuse shall be referred to another judge of that district court through the random process of assignment.

F. C.C.P. Article 156 Selection of Judges to Try Motion to Recuse, Single Judge

Jurisdiction

• In single judge districts, the judge shall appoint a district judge of an adjoining district to try the motion to recuse when the grounds for recusal are that judge’s interest in the cause.

• When any other ground is assigned for the basis of the recusation, the judge may appoint another district judge of an adjoining district or a lawyer domiciled in the judicial district who has the qualifications of a district judge to try the motion.

G. C.C.P. Article 157 Judge Ad Hoc Appointed After Recusal

• After a trial judge recuses himself under mandatory grounds, a judge ad hoc is assigned to try the motion to recuse.

Page 16: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

15

• If the motion to recuse is granted, the case shall be reassigned to a new judge

for trial of the cause.

• If a trial judge recuses himself under discretionary grounds, he shall make written application with the supreme court for the appointment of another district judge as ad hoc to try the case.

• The Supreme Court shall appoint a judge from a judicial district other than the judicial district of the recused judge to try the case.

• The judge ad hoc has the same power and authority to dispose of the cause as the recused judge has in cases which no grounds for recusation exist.

H. C.C.P. Article 158 Supreme Court Appointment of District Judge to Try

Case When Judge is Recused

• In a case where a judge is recused and an ad hoc judge appointed, a party may apply with the supreme court for appointment of another district judge. If the supreme court deems it in the interest of justice, an appointment shall be made.

I. C.C.P. Article 159 Recusation of Supreme Court Justice

• When a written motion is filed to recuse a justice of the supreme court, the justice may recuse himself or the motion shall be heard by the other justices of the court.

• If a justice recuses himself or is recused, the court may either have the case argued before and disposed of by the other justices or appoint a judge of a district court or court of appeal having the qualifications of a justice of the supreme court to act for the recused judge in the matter.

J. C.C.P. Article 160 Recusation of Judge of Court of Appeal

• When a written motion is filed to recuse a judge of a court of appeal, he may

recuse himself or the motion shall be heard by the other judges on the panel to which the cause is assigned or by all of the judges of the court, except the judge sought to be recused, sitting en banc.

Page 17: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

16

• When a judge of a court of appeal recuses himself or is recused the court may:

(1) have the case argued before and disposed of by the other judges of the panel to which it was assigned; or

(2) appoint another of its judges, a judge of a district court or lawyer having the qualifications of a judge of a court of appeal to act for the recused judge in the hearing of the matter.

K. C.C.P. Article 161 Recusation of Judge Ad Hoc

• A judge ad hoc appointed to try a motion to recuse or appointed to try the matter, may be recused on the grounds provided above.

II. Recusation in Criminal Court Code of Civil Procedure Articles 671-679

• Recusal provisions in criminal matters are very similar to those in civil matters.

• C.C.P. Article 671(6) provides a catch-all allowing for recusation of a judge who is unable, for any other reason, to conduct a fair and impartial trial.

• A mere expression of a judge’s belief in a defendant’s guilt is not a ground for

recusation. State v. Dooley, 38,763 (La. App. 2 Cir. 9/22/04), 882 So.2d 731. III. C.C.P. Articles 4861-4866 Recusation of City/Parish Court Judges

• See C.C.P. Article 151 for grounds.

• If the parish or city court have more than one judge, the motion for recusation shall be

tried by another judge of the same court and if the judge is recused, the case will be tried by another judge of the same court.

• If there is not more than one judge in the district, the motion shall be tried by the

district court who shall try the case or appoint another judge of a district, parish, or city court to try the case.

• A judge ad hoc may be appointed in a parish or city court with only one division and

may be a parish or city court judge from an adjoining parish or an attorney domiciled in the parish who has the qualifications of a parish or city court judge.

Page 18: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

17

• When a justice of the peace recuses himself, he shall appoint another justice of the peace to try the case.

• The Louisiana Supreme Court has constitutionally granted supervisory authority over

all other courts and can appoint ad hoc judge in parish court. Cosse v. Orihuela, 12-456 (La. App. 5 Cir. 1/30/13), 109 So.3d 950, writ denied 2013-0680 (La. 4/26/13), 112 So.3d 850.

Interfering with the recusal proceeding

“Judges, like everyone else, are locked in the human condition. At times, even the best among us fall short. While all of us are vulnerable to failures, some judicial failures can lead to disciplinary action.” In re The Honorable Etta Mullin, 15-0002, before the Special Court of Review appointed by the Supreme Court of Texas. Judge Mullin intervened in recusal proceedings against her and attempted to assert her “rights” by filing a motion for reconsideration of order of recusal resulted in disciplinary action.

Page 19: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

18

BEING JUDGED BY OTHERS

Violations of the judicial canons are governed solely by the Louisiana Supreme Court which has exclusive, original jurisdiction over such violations. La. Const. Art. 5, Sec. 25. I. CODE OF JUDICIAL CONDUCT

A. A Judge Shall Uphold the Integrity and Independence of the Judiciary

1. An independent an honorable judiciary is indispensable to justice.

2. A judge should establish, maintain, enforce, and personally observe high standards of conduct.

B. A judge shall avoid impropriety and the appearance of impropriety in all

activities.

1. A judge shall respect and comply with the law in a manner that promotes public confidence in the integrity and partiality of the judiciary.

2. A judge should not allow family, social, political, or other relationships to

influence his judicial conduct or judgment.

3. A judge shall not lend the prestige of his office to advance the private interest of himself or others.

4. A judge should not convey the impression that anyone is in a special position

to influence him.

5. A judge shall not hold membership in an organization that arbitrarily excludes protected classes who would otherwise be admitted to membership.

C. A judge shall perform the duties of the office impartially and diligently.

AJUDICATIVE RESPONSIBILITIES

1. A judge shall be faithful to the law, maintain professional confidence in it, and

be unswayed by special interests, publicity, or the fear or criticism.

2. A judge shall maintain order and decorum during proceedings.

Page 20: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

19

3. A judge shall be patient, dignified, and courteous to anyone with whom he

deals in an official capacity and requires similar conduct of others in the courtroom.

4. A judge shall perform his duties without bias or prejudice. 5. A judge should ensure process litigants are fairly heard without giving them

an unfair advantage or the appearance of partiality to a reasonable person. 6. A judge shall require lawyers before him to refrain from exhibiting bias or

prejudice against parties, witnesses, counsel, or others. 7. A judge shall not permit ex parte communication except as permitted by law. 8. A judge shall dispose of all matters promptly, efficiently, and fairly. 9. A judge, while a proceeding is pending, shall not make any public comment

that might reasonably be expected to affect the outcome, or impair its fairness. 10. A judge shall not permit broadcasting in the courtroom except in certain

situations. 11. A judge shall not with respect to cases that are likely to come before him

make promises that are inconsistent with the impartial performance of his duties of office.

ADMINISTRATIVE RESPONSIBILITIES

1. A judge shall diligently discharge his administrative responsibilities without

bias or prejudice and maintain professional competence in judicial administration and cooperate with other judges in the administration of court business.

2. A judge shall require staff and court officials and others subject to his

discretion to observe the standards of fidelity and diligence that apply to him. 3. A judge should take or initiate appropriate disciplinary measures against a

judge or lawyer for unprofessional conduct of which the judge becomes aware.

Page 21: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

20

• I requested a pretrial conference with the trial court to set a matter for trial

after an extended period of time of not having heard from my opposing attorney regarding settlement negotiations. The trial judge contacted my office to inform me that the plaintiff attorney had his license to practice law suspended necessitating a mandatory reporting situation.

4. A judge shall not make unnecessary appointments and should exercise that

power impartially and on the basis of merit. 5. A judge should disqualify himself in a proceeding in which his impartiality

might reasonably be questioned and shall disqualify himself in a proceeding in which same is required by law or Supreme Court rule.

II. PROCEDURE FOR COMPLAINTS CONCERNING THE MISCONDUCT OR

DISABILITY OF THE JUDGE ARE GOVERNED BY THE RULES OF THE JUDICIARY COMMISSION

In Re: Justice of the Peace Leroy J. Laiche, Jr., Second Justice Court, Parish of Ascension, State of Louisiana, 2015-0-1691, (La. 3/15/126).

Factual History

The complaint arose out of the Laiche’s handling of peace bonds in two unrelated family disputes. One dispute pertained to two families involved in “a heated and very unpleasant child custody case pending in East Baton Rouge Parish Family Court.” The parties had many altercations during the exchange of the minor child and Laiche issued a number of peace bonds at the request of the mother and her family against the father and his family over a period of years. The second dispute involved peace bonds issued at the request of a decedent’s children against their stepmother accusing her of inappropriate behavior after the death. The court adopted the Commission’s finding that Laiche issued these peace bonds without required hearings, requiring multiple peace bonds upon penalty of imprisonment, and failed to timely refund peace bonds that had expired without forfeiture.

• The court noted that the Code of Judicial Conduct is binding on all judges and may

serve as a basis for a disciplinary action, however, a violation of a Canon of the Code of Judicial Conduct is not necessary for there to be constitutional misconduct.

Page 22: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

21

• The court noted the standard of proof in a judicial disciplinary matter is clear and convincing.

• While the case appears to be one based upon legal error which does not typically

constitute judicial misconduct, the court found that Laiche’s legal rulings were contrary to clear law about which there is no confusion, egregious, made in bad faith, and made as a pattern of practice of legal error.

• The court found that Laiche’s faulty interpretation of the law, failure to faithfully

enforce it, incompetence, gross negligence in administration of his office, and general indifference to these failures “negatively affected many lives” and cast “a dark shadow on the judiciary as a whole.”

• Of interest to the commission and the court were Laiche’s alleged indifference to his

mistakes and failure to take personal responsibility for same for blaming others for his actions.

• The court found that there was no dispute that Laiche’s actions harmed the integrity

of and respect for the judiciary and that he prospered due to his failure to conduct hearings before extending the terms of peace bonds and failing to property notarize affidavits because those actions allowed him to collect fees and a salary without having to perform his requisite work. The court further noted that the actions were taken in order to enrich himself and advance his own private interest.

• The court removed Laiche from office finding his misconduct was so prejudicial to

the administration of justice in his justice of the peace court that he could not be allowed to remain on the bench.

• Two justices dissented, Weimer and Hughes. Weimer dissented admitting that

Laiche committed egregious legal errors but believing a sanction less than removal of office would serve the interest of justice. Weimer found that the law related to peace bonds is not clear and many of the errors Laiche made were at the beginning of his term although the effect of those errors did span a longer time frame. Weimer was persuaded that there was no finding that Laiche was motivated by family, social, political, or other relationships. He did not find there was sufficient proof that Laiche advanced his private interest at the expense of the prestige of his judicial office.

Page 23: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

22

III. WHAT NOT TO DO WHEN ON THE BENCH – LEARNING FROM OUT-OF-STATE BRETHREN A. Inquiry concerning Saucedo, Decision and Order No. 194 (December 1, 2015).

• The commission found that Judge Saucedo drafted and sent to himself an unsigned letter accusing his clerk of having an affair with the bailiff. The letter was addressed to his clerk’s husband at his office. The court found that the judge drafted the letter to pressure his clerk into a personal relationship with him and maintain the relationship by giving her valuable gifts knowing she had limited financial resources.

• Rather than report the letter to court administration or law enforcement, the judge convinced his clerk to let him call her husband’s employer to intercept the letter. Judge Saucedo told his clerk that he had spoken to a manager at the husband’s business and that the manager had shredded the letter. The commission found this was a lie.

• The judge elicited information regarding the alleged affair his clerk had with

the bailiff and agreed to help her financially so she could end her reliance on him. The judge sent his clerk hundreds of text messages and gave her numerous gifts including cash, trips, and a vehicle. The commission found it persuasive that Judge Saucedo lied to his clerk and his deception continued throughout the course of the disciplinary proceeding. The commission found that he was not truthful in his testimony; he refused to admit important documented facts; he failed to answer direct questions; and even made affirmative misrepresentations.

• The judge blamed his clerk alleging he was mentoring her and her demands

grew when he could not disengage from the situation.

• While the court found that mitigating factors may be taken into account, Judge Saucedo’s misconduct was so at odds with the core qualities of a judge that no amount of mitigation could redeem him including his lack of prior discipline and his strong reputation as a judge and community leader.

Page 24: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

23

B. Public Admonition and Order of Additional Education of Schildknecht, Texas State Commission on Judicial Conduct (May 11, 2015).

• Judge Schildknecht was a judge of the 106th District Court in Lamesa,

Dawson County, Texas who referred to a district attorney as a “New York Jew.” She defended her statement claiming it was meant to connote a difference in background possessed by the DA as opposed to evidence of bias or prejudice.

• Judge Schildknecht held a court session beginning at 1:00 p.m. and ending at

4:00 a.m. the next morning failing to allow for any breaks for meals or restroom facilities. The judge claimed the session was necessary to prevent jail overcrowding and claimed there was enough “down time” during the proceeding for people to have eaten or used the restroom.

• Judge Schildknecht instructed her bailiff to refuse entry to court by the DA to

whom she referred to as a “New York Jew.” The judge claimed she was short tempered but that court business had concluded and there was no reason for the DA to be in her courtroom.

• Judge Schildknecht criticized an ADA about his beard, describing him as

looking like “a Muslim,” and claiming she “wouldn’t hire” him. While the court did not recall specifically making the statement, she claimed that if it was made, it was during down time.

• The commission found that Judge Schildknecht failed to treat litigants,

attorneys, and others with patience, dignity, and courtesy when she expelled the DA from her courtroom and held the “marathon” session without allowing breaks.

• The commission also found that Judge Schildknecht manifested a religious

and/or cultural bias by use of the term of “New York Jew” and describing a prosecutor as looking like a “Muslim” because of his beard.

• Judge Schildknecht was publically admonished and ordered to obtain four (4)

hours of instruction with a mentor regarding the “Open Courts” doctrine and eliminating explicit and implicit bias and/or prejudice.

Page 25: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

24

C. The Legalization of Marijuana in Some States Versus its Prohibition by Federal Law

1. State of Washington Ethics and Advisory Committee Opinion15-02

• What are the duties and obligations of the judge when he learns that a

court employee owns a medicinal marijuana business even if that business is in full compliance with Washington state law? The committee found that a judge and his staff must comply with both state and federal law. Although not all extracurricular activities of court personnel are within the Code of Judicial Conduct, some extracurricular activities could be found as falling within same.

• Even if the staff member owned a legal medical marijuana business

compliant with all state regulations, distribution of marijuana is still considered illegal under federal law for both recreational and medical use. The committee found that the operation of such a business in knowing violation of federal law undermines the public’s confidence of the integrity of the judiciary acting with fidelity and in a diligent manner consistent with the judge’s obligations under the Code.

2. Colorado Judicial Ethics Advisory Board Opinion 2014-01

• A judge asked the Board to determine whether a judge who engages in the

personal recreational or medical use of marijuana which is not a state crime, but remains a crime under federal law, complied with the Code of Judicial Conduct.

• The board found that because the use of marijuana is a federal crime, a

judge’s use of it for any purpose is not a “minor” violation of criminal law and therefore violates the Code of Judicial Conduct.

• The fact that the judge’s use of marijuana violates federal law does not in

and of itself make the use a violation of the code as the Colorado Code provides that minor violations do not constitute a violation.

• The board found that the “minor” exclusion was intended to cover

insignificant traffic offenses and local ordinances, but not state or federal drug laws.

Page 26: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

25

• The judge argued that the criminal act should largely pertain to a lawyer’s honesty, trustworthiness or fitness as a lawyer therefore the determination of whether an offense is “minor” should be based upon a “moral turpitude” test. The Board found that judicial misconduct for judges involves violating laws in general and not just laws relating to honesty, trustworthiness, and professional fitness. Furthermore, if the Supreme Court had intended minor violations to include only those involving moral turpitude, the court could have done so by expressly including such language.

• The Board also observed that there was a suggested amendment that

would have protected a lawyer from being disciplined for the personal and medical use of marijuana consistent with Colorado law but the Supreme Court refused to adopt same. Thus, the Board suspects the court would likewise not approve of exempting a judge’s use of marijuana from discipline.

• While the Board recognized that simple possession of marijuana is a

misdemeanor under federal law and in some circumstances only punishable by a penalty, it is significantly more serious than the minor infractions anticipated by the Code.

D. In re Complaint Against White, 651 N.W.2d. 551 (2002) 264 Neb. 740

• Judge White presided over a domestic violence criminal proceeding to which the defendant plead guilty. The defendant then appealed the sentence to the district court alleging that Judge White was biased toward him at the time of his conviction and sentencing. The district court found that a reasonable person could question Judge White’s impartiality, vacated the sentence, and remanded for resentencing by another judge.

• Judge White had a conversation with the deputy county attorney in which she

provided case law and statutes she allegedly followed, alleged none of her actions were unlawful, and suggested there was no basis for finding of her bias against the defendant. Judge White also expressed concern that criminal defense lawyers would use the decision to recuse her in other domestic violence cases.

• The deputy county attorney agreed to file an appeal but inadvertently failed to

file a timely notice of appeal. Judge White continued to speak with the deputy

Page 27: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

26

county attorney requesting the appeal until the attorney informed her that an appeal had not been filed and the defendant had already been resentenced by another judge.

• Judge White approached another judge and requested that a special prosecutor

be appointed to pursue the appeal of the resentencing of the defendant despite the county attorney’s office having chosen not to appeal the resentencing. Another judge held a court hearing at which Judge White was present but for which neither the state nor the defendant had been notified. The judge considered an appeal from the resentencing of the defendant. Judge White moved for a special prosecutor to prosecute the appeal explaining why the reversal was in error. The judge reserved the ruling until the county attorney’s position could be stated and the hearing was resumed the next day. The deputy county attorney testified the next day that she had no knowledge of the hearing held the previous day.

• A couple of months later, Judge White, through personal counsel, filed a

petition in the district court to seek the appointment of special county attorney to review the reversal in the matter and render an advisory opinion. Prior to the hearing, Judge White voluntarily dismissed her petition.

• The court found that Judge White injected herself into the proceeding as an

advocate for one of the parties and found she had an improper concern with protection of her own rulings from appellate reversal.

• The court further found that the judge’s responsibility is to decide matters and

not advocate for or materially assist one party at the expense of the other. The court found that such advocacy creates the appearance, and perhaps the reality, of partiality on the part of the judge.

• The court also found that Judge White’s motion for appointment of a special

prosecutor was without legal foundation, was made in a public form while the case was pending before the county court, and could reasonably have been expected to unfairly interfere with the disposition of the case. The court further determined that the motion eroded the integrity and independence of the judiciary and fostered improprieties in violation of the Code of Judicial Conduct.

Page 28: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

27

• The court found that the judge had assumed the role of advocate for the purpose of vindicating her prior ruling and shattered the appearance of an impartial magistrate.

Page 29: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

DONA K. RENEGAR is a member in the firm of Huval, Veazey, Felder & Renegar, L.L.C. working from the firm’s Lafayette office. Her primary practice is defending Louisiana Worker’s Compensation Act and Longshore and Harborworkers’ Compensation Act claims representing some employers state-wide. She also practices in the area of premises liability, automobile liability, and family law. Dona was chosen as Louisiana’s Outstanding Young Lawyer for 1999 and was selected to be a Fellow of the Louisiana Bar Foundation in 2000 and continues to the serve the Foundation as a member of the IOLTA Grants Subcommittee. Dona is currently the President-Elect Designee for the Louisiana Bar Association and will assume the role of President-Elect at the Annual Meeting this year. She formerly served as representative of the Third District to the Board of Governors for the Louisiana State Bar Association, on the Lafayette Bar Association Board of Directors, as Chair of the Louisiana Young Lawyers Division from 2005 through 2006, and on the University of Louisiana at Lafayette Alumni Council. Dona served on numerous Louisiana State Bar Association committees including the Client Assistance Fund Committee and the Committee to Review Proposed Changes to the Bar Examination I and II. Dona is licensed to practice before the United States Supreme Court, the Fifth Circuit Court of Appeal, all federal district courts, and all state courts in Louisiana.

Page 30: Adjudication: Judging Others, Judging Yourselves, and ... · ADJUDICATION: JUDGING OTHERS, JUDGING YOURSELVES, AND BEING JUDGED BY OTHERS . Louisiana Judicial College . Spring Judges

JUDGE JOHN E. CONERY THE HONORABLE JOHN E. CONERY took office as general jurisdiction District Judge for the Sixteenth Judicial District, Parishes of St. Mary, Iberia and St. Martin, State of Louisiana on January 1, 1995 and now serves as a judge on the Louisiana Third Circuit Court of Appeal since election on January 1 2013. Judge Conery coordinated capital training for Louisiana Judges in co-operation with the National Judicial College, and coordinated preparation of the Louisiana Capital Crimes Benchbook. He is Past President of the Louisiana District Judges Association and was recently chosen to serve as President of the American Judges Association. Judge Conery has been a member of the Steering Committee for the Center for Elders and the Courts at the National Center for State Courts since 2005 and is featured in the introduction to the NCSC Elder and the Courts website. Judge Conery completed the Louisiana Judicial Leadership Institute and has been a frequent speaker at Judicial College functions.