Broome v. Simon, Civ. A. No. 11258.

• Decision Date: 18 March 1966
• Docket Number: Civ. A. No. 11258.
• Citation: 255 F. Supp. 434
• Parties: Mr. and Mrs. Robert BROOME v. Whitney "Pete" SIMON, Francis Meaux, J. D. Hanks, Jr., Essie Primeaux, Euda Delcambre, Elton Elzy alias Alton Mouton and Trinity Universal Insurance Company.
• Court: U.S. District Court — Western District of Louisiana

255 F. Supp. 434

Mr. and Mrs. Robert BROOME v. Whitney "Pete" SIMON, Francis Meaux, J. D. Hanks, Jr., Essie Primeaux, Euda Delcambre, Elton Elzy alias Alton Mouton and Trinity Universal Insurance Company.

Civ. A. No. 11258.

United States District Court W. D. Louisiana, Lafayette Division.

September 2, 1965.

On Motion to Dismiss March 18, 1966.

COPYRIGHT MATERIAL OMITTED

Simon, Trice & Mouton, J. Minos Simon, Lafayette, La., for plaintiffs.

O. H. Deshotels, Jr., Kaplan, La., for Elton Elzy.

Charles M. Thompson, Abbeville, La., for Euda Delcambre.

Davidson, Meaux, Onebane & Donohoe, T. J. McNamara, Lafayette, La., for Trinity.

William Harris McBride, Lafayette, La., for Whitney "Pete" Simon, J. D. Hanks Jr., Francis Meaux and Essie Primeaux.

Q. L. Stewart, Asst. U. S. Atty., Shreveport, La., for Richard A. Smallwood, Special Agent, FBI, and United States of America.

MEMORANDUM OPINION

PUTNAM, District Judge.

An affidavit to recuse the judge having been filed in this matter pursuant to 28 U.S.C. § 144, 28 U.S.C.A. § 144; the motion was heard and denied, with oral reasons assigned in open court. Counsel for plaintiffs having announced an intention to apply for writs, we now supplement these reasons in writing for the record. If writs are sought, the necessity of response by the Court may be obviated. On the other hand, if no action is taken, the views of the court on the subject should be recorded.

The suit purports to be laid under the Civil Rights Acts, 42 U.S.C.A. § 1983 and 1985, and is against the sheriff of Vermilion Parish, the mayor and chief of police of the city of Kaplan, and other officials. In a supplemental petition filed August 26, 1965, plaintiffs have alleged that agents of the Federal Bureau of Investigation have been actively engaged in conspiracy with the local officials originally made defendants in the suit, to the end of discrediting petitioner Robert Broome and depriving him of his right to "peaceful association with members of his society", i. e., the people of the community in which he lives, and his good reputation. Plaintiffs seek injunctive relief against all prosecutions against him in the state courts, and seek damages against all defendants and the United States in excess of $1,000,000.00.

Mr. Bertrand DeBlanc, District Attorney of the Fifteenth Judicial District of Louisiana, is alleged in this supplemental petition, to have committed wrongful acts against plaintiff Robert Broome in his official capacity, by consulting with the state and local officials and agents of the Federal Bureau of Investigation involved in respect to some of the alleged charges advanced against Broome by them. DeBlanc is not named as a defendant.

The affidavit of bias sets out the following facts upon which the conclusion of prejudice by the judge is predicated:

(a) That the judge told Mrs. Francis Gilfoil, an assistant to Mr. DeBlanc, that she did not have to appear as a witness in response to a subpoena for her deposition, and that if she failed to appear: "he, the said Judge Putnam, would not hold her in contempt of court;"

(b) That in a former case, No. 9742-L, Western District of Louisiana, Paul Schexnayder v. Elton Arceneaux and Bertrand DeBlanc, where DeBlanc was named as a defendant "the said Judge Putnam voluntarily recused himself in respect to said litigation and affiant verily believes on information that the said recusation voluntarily entered was induced by a personal bias in favor of the said Bertrand DeBlanc, which Judge Putnam held at that time and that said personal bias continues at this date."

(c) While not expressly stated, it may reasonably be inferred that the alleged bias in favor of DeBlanc arises by virtue of the fact that he acted as assistant district attorney when the judge occupied the office of district attorney now held by him. These facts are alleged in the motion accompanying the affidavit.

In passing upon this affidavit as is my duty, the record of the case will further reflect that suit was filed on July 22, 1965, when I was absent on a brief vacation. An application for a temporary restraining order was denied by Judge Hunter. Plaintiff's counsel stated in his letter of transmittal that he would be away until August 17th and requested that the "preliminary hearing" be fixed for sometime after August 20th. It was fixed by this judge to be heard on application for a preliminary injunction on August 30th.

Thus, in this embryonic state of the litigation, it has developed into a veritable miasma of motions, countermotions, charges of contempt, etc., so that, as it matures it promises to become a most vexatious and burdensome case. The judge would be most happy to be relieved of the task which lies ahead.

The law in such cases, however, is clear. 28 U.S.C.A. §§ 144, 455. The facts stated in the affidavit must be accepted as true. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 S.Ct. 481 (1921). This case further stands for the basic proposition that the judge against whom the affidavit is made should himself act upon it.

It is the duty of the judge, when the facts of the affidavit standing alone, justify it, to refrain from continuing to act in the case. It is equally his duty to deny the affidavit on insufficient grounds as to allow it on sufficient allegations. To do this, the judge must be satisfied in his own mind and conscience that the complaining party will be afforded fair trial. Berger v. United States, supra; Edwards v. United States, 334 F.2d 360 (5 Cir. 1964); Simmons v. United States, 302 F.2d 71 (3 Cir. 1962); In re Union Leader Corporation, 292 F.2d 381 (1 Cir. 1961), cert. den. 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190; Tucker v. Kerner, 186 F.2d 79 (7 Cir. 1950); Alaska Bar Association v. Dickerson, 240 F.Supp. 732 (D.C.Alaska 1965); United States ex rel. Brown v. Smith, 200 F.Supp. 885 (D.C.D.Vt.1961); United States ex rel. Rogers v. Richmond, 178 F.Supp. 44 (D.C.D.Conn.1958); United States v. Gilboy, 162 F.Supp. 384 (D.C.M.D.Pa.1958), petit. for writ of mandamus denied sub nom.; Green v. Murphy, 259 F.2d 591 (3 Cir. 1958); In re Federal Facilities Realty Trust, 140 F.Supp. 522, (D.C.N.D.Ill.1956); United States v. Valenti, 120 F.Supp. 80 (D.C. D.N.J.1954); United States v. Shibley, 112 F.Supp. 734 (D.C.S.D.Cal.1953) Sanders v. Allen, 58 F.Supp. 417 (D.C. S.D.Cal.1944), appeal dismissed, 151 F.2d 534 (9 Cir. 1945).

With regard to the statement that Mrs. Gilfoil was informed by the Court that she could go on a trip which she had planned and would not be held in contempt, and that this was done in a telephone conversation to me at my home, this is true, but incomplete. I have related orally to the best of my recollection the substance of that telephone conversation, and this summation includes facts not stated on the face of the affidavit, consequently they are not considered here.

The court had the inherent power and authority to modify or even to quash the subpoena issued to Mrs. Gilfoil. 28 U.S.C.A., F.R.Civ.P. Rules 30 (b), 45(b), if in the opinion of the Court it was required to protect the witness from "annoyance, embarrassment or oppression". See Haney v. Woodward & Lothrop, Inc., 330 F.2d 940, 942 (4 Cir. 1964). The fact that, as alleged in plaintiff's motion, the Court told her she could leave on her vacation and under these circumstances he would not hold her in contempt, and that this was done by verbal request was error on the part of the Court. The proper mode of procedure would have been by written motion. It would also be required that notice of the action so taken be given plaintiff's attorney, which was not done.

The Court must state that the actions of Mrs. Gilfoil, who is herself an attorney and as such an official of the Court, was an imposition upon the Court, and her failure to notify plaintiff's counsel a breach of professional courtesy. While I dismiss the contempt rule against her because there was no wilful disobedience to the subpoena, I fully reserve the right to deal with this disciplinary problem in due course.

No prejudice has resulted from this error, as the rule for preliminary injunction was continued and Mrs. Gilfoil is available or can be made available to testify at any time in the future. Moreover, informal notice of the facts was given to counsel on August 13th, as appears from the motion now before us. The judge's assumption that there was no serious objection to the procedure has certainly been demonstrated to be erroneous, but this falls far short of a showing that there is personal prejudice against plaintiffs.

The fact that in a prior case the judge recused himself voluntarily, under 28 U.S.C.A. § 455, where Mr. DeBlanc was a defendant, does not, in my opinion, demonstrate any personal prejudice against Broome or his wife or in favor of defendants. His belief that this is so, as stated in his affidavit, is simply erroneous and is not a matter of fact such as would compel recusal. Even if it were true, Mr. DeBlanc is not a party to this case, as is required by 28 U.S.C.A. § 144.

I now elaborate on my alleged "personal relationship" with Mr. DeBlanc. My term as District Attorney of the Fifteenth Judicial District of Louisiana terminated in 1954. Mr. DeBlanc is considered by me to be a personal friend. Whether this would be to his advantage or disadvantage even were he a defendant in this case is a matter of conjecture, which I now eliminate by stating emphatically that where this court's judicial function begins, personal likes and dislikes end. See United States v. Gilboy, 162 F.Supp. 384, pp. 399, 400 for collection of authorities in this field, and Simmons v. United States, 89 F.2d 591 (5 Cir. 1937), cert. den. 302 U.S. 700, 58 S. Ct. 19, 82 L.Ed. 540.

It must be said that I, like every other judge, claim personal friendship with many officials and people in the area. There would be very few cases upon which a judge would be qualified to sit if this were ground for recusation.

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