Daurbigney v. Liberty Pers. Ins. Co.

• Decision Date: 09 May 2019
• Docket Number: 18-929
• Citation: 272 So.3d 69
• Parties: Valencia DAURBIGNEY v. LIBERTY PERSONAL INSURANCE COMPANY and Kelly Watson
• Court: Court of Appeal of Louisiana — District of US

272 So.3d 69

Valencia DAURBIGNEY

v.LIBERTY PERSONAL INSURANCE COMPANY and Kelly Watson

18-929

Court of Appeal of Louisiana, Third Circuit.

May 9, 2019

Jerome H. Moroux, Broussard & David, LLC, Post Office Box 3524, Lafayette, Louisiana 70502, (337) 232-9345, COUNSEL FOR PLAINTIFF/RELATOR: Valencia Daurbigney

Bruce D. Beach, Law Offices of Keith S. Giardina, 9100 Bluebonnet Centre Boulevard, Suite 300, Baton Rouge, Louisiana 70809, COUNSEL FOR DEFENDANTS/RESPONDENTS: Liberty Personal Insurance Company, Kelly Watson

Court composed of John E. Conery, Van H. Kyzar, and Jonathan W. Perry, Judges.

PER CURIAM.

The tenor has changed in recent judicial elections. Now, special interest groups are pouring large sums of money into judicial campaigns, especially on the supreme court and appellate level, hoping that the candidate they are backing will side with their particular philosophy when deciding cases and issues before them. More to the point, special interest groups have now formed Political Action Committees (PACs) to raise large sums of money to support candidates the PAC perceives is more philosophically in tune with its goals and agenda.

In Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), the United States Supreme Court held that unions and corporations were "persons" under the First Amendment and therefore entitled to free speech which included spending money without limitations in elections. Hence, PACs are not subject to individual campaign finance limits on contributions and PAC contributions have become increasingly important.

The recent race for a seat on the Louisiana Supreme Court between two sitting judges, Judge Marilyn Castle on the trial court and Judge Jimmy Genovese on the appellate court, was especially contentious. Campaign ads in the print and broadcast media funded by special interest groups escalated, costing the respective candidates' campaigns large sums of money. Such a campaign ad is the focus of the case before us, only the ad was directed by a candidate not against her opponent and not even against the PAC supporting her opponent, but directed against specifically named lawyers who contributed to the PAC.

In the ad at issue, The Committee to Elect Judge Marilyn Castle, designed, authorized and ran an ad that specifically listed named lawyers who concentrate in the area of plaintiff personal injury litigation, claiming that her opponent's judicial impartiality had been compromised. The ad specifically named trial lawyers who "unethically" contributed large sums to his campaign, bypassing campaign finance limits on contributions by creating a special PAC to donate large sums to her opponent's campaign over and above campaign finance limits. PAC contributions, however, are clearly authorized by the Citizens United case and are neither unlawful nor unethical. In fact, public records of campaign financial reports, of which we take judicial notice, show that both campaigns received PAC contributions and/or PACs ran ads on their behalf.¹ The ad in question stated in pertinent part:²

SHOULD PERSONAL INJURY LAWYERS PICK OUR NEXT SUPREME COURT JUSTICE Or should you? Personal Injury Lawyers have contributed over $ 1,000,000 to Jimmy Genovese's campaign. Then, when ethics laws prevented them from giving more, 18 of the wealthiest of them poured another $ 945,000 into a PAC (Restore Our Coast ) created to promote Genovese's campaign.

It is significant to note that this particular campaign ad was run prominently in the Daily Advertiser, the Lafayette newspaper in Judge Castle's "home base," so to speak, on November 6, 2016, only two days before the election on November 8, 2016. As shown in the exhibit, the ad featured Judge Castle, pictured in color in her judicial robes, smiling and wearing a large cross, while it portrayed her opponent in dark tones, frowning with a sack of money symbol next to the names of the "wealthy" personal injury attorneys accused of trying to "Pick Our Next Supreme Court Justice."

The law firm of Broussard & David, plaintiff/relator's counsel, was the only Lafayette law firm specifically listed in the ad, although their contribution to the PAC in question had been made by a company they managed, 557 Jefferson Street, LLC, and not their law firm directly.³ It is also significant to note that the campaign ad was paid for directly by Judge Castle's campaign, not a competing PAC. Thus, as the candidate, Judge Castle was personally responsible for the content of the ad.⁴

After a motion hearing had been set before Judge Castle in this case, the plaintiff/relator, through Broussard & David, timely filed a motion to recuse Judge Castle, stating the grounds articulated in La.Code Civ.P. art. 151(A)(4) applied. The Article provides, in pertinent part that, a judge of any court shall be recused when she "(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys ... to such an extent that [s]he would be unable to conduct fair and impartial proceedings." (Emphasis added.)

Recusal issues are difficult for everyone involved. Lawyers, for the most part, are reluctant to file such a motion unless the grounds are compelling, fearing such a motion will anger the trial judge and negatively influence the decision in the case at issue should recusal be denied, and perhaps future cases before the same judge. Judges have a difficult time granting such a motion, fearing that it would be tantamount to a public declaration that they cannot be fair or impartial. Recusal decisions are especially difficult for a judicial colleague assigned to hear a request for recusal of a fellow judge on the same bench.

In prior decisions of our courts, recusal motions have generally been regarded with disfavor, starting out with a strong presumption in favor of the judge sought to be recused. The moving party, under our past jurisprudence, would then have the heavy burden of proving the judge sought to be recused had "actual bias" if the only ground for recusal was bias under La.Code Civ.P. art. 151(A)(4).⁵

How is an attorney seeking recusal on legitimate grounds in order to protect his client from the very real potential of judicial bias able to prove subjective "actual bias"? It is difficult, to say the least, and most lawyers simply will not try if the burden of proof is set so high, often at the expense of their clients.

In recent years, however, the United States Supreme Court has issued several opinions changing the initial inquiry from one of proof of actual specific bias on the part of the trial judge at issue to an objective standard. At least since Withrow v. Larkin , 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), Caperton v. A.T. Massey Coal Co., Inc . 556 U.S. 868, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009), and Rippo v. Baker , ––– U.S. ––––, 137 S.Ct. 905, 197 L.Ed.2d 167 (2017), the United States Supreme Court has held as a matter of constitutional law that the judge hearing the recusal motion must use an objective standard. The only constitutionally permissible inquiry to be applied at the recusal hearing is, "objectively speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ " Rippo , ––– U.S. at ––––, 137 S.Ct. 905 (emphasis added).

Does this mean there is no longer a presumption of fairness and impartially in favor of the judge sought to be recused? Perhaps not. But what is clear is that the burden of proof is not the same—no longer must actual, subjective bias be proven.

It is on this point that we find that our learned brother below assigned to hear the recusal motion was in error. It is clear from his reasons for ruling that he found that the plaintiff movers in the motion to recuse Judge Castle did not prove actual bias.

Using the objective test articulated by the U.S. Supreme Court, the question at issue now is: Does the tone and tenor of the ad, with Judge Castle's color picture in her judicial robes and cross, and her direct involvement in this campaign ad naming specific plaintiff personal injury attorneys, including Broussard & David, lead the reasonable person to conclude that, "Recusal is required when, objectively speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ " Rippo , ––– U.S. at ––––, 137 S.Ct. 905 (quoting Withrow , 421 U.S. at 47, 95 S.Ct. 1456 ). This principle flows from the case of Withrow , 421 U.S. at 47, 95 S.Ct. 1456, which, quoting In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), stated, "Not only is a biased decisionmaker constitutionally unacceptable but ‘our system of law has always endeavored to prevent even the probability of unfairness .’ " (Emphasis added.)

In LaCaze v. Louisiana , ––– U.S. ––––, 138 S.Ct. 60, 199 L.Ed.2d 1 (2017), the United States Supreme Court vacated the original decision in State v. LaCaze , 16-234 (La. 12/16/16), 208 So.3d 856, which denied recusal of the trial judge based on the application of the subjective actual bias standard, and remanded the case to the Louisiana Supreme Court in light of Rippo . Our supreme court "was instructed to consider whether the trial judge's recusal should have been required because ‘objectively speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.’ " State v. LaCaze , 16-234, p. 1 (La. 3/13/18), 239 So.3d 807, 809 (quoting Rippo , ––– U.S. at ––––, 137 S.Ct. 905 ), cert. denied , ––– U.S. ––––, 139 S.Ct. 321, 202 L.Ed.2d 218 (2018). The Louisiana Supreme Court on remand eventually found that based on the particular facts of that case, and using the Rippo objective standard, the trial judge's actions in that case were insufficient to warrant recusal. Id.

However, in State v. Daigle , 18-634, p. 1 (La. 4/30/18), 241 So.3d...