Huckaby, In re

• Decision Date: 22 May 1995
• Parties: 95-0041 La
• Court: Louisiana Supreme Court

Page 292

656 So.2d 292

95-0041 La. 5/22/95

In re Hilry HUCKABY, III.

No. 95-O-0041.

Supreme Court of Louisiana.

May 22, 1995.

Rehearing Denied June 30, 1995.

Nancy C. Chachere, Steven R. Scheckman, Hugh M. Collins, New Orleans, for applicant.

Hilry Huckaby, III, Ronald J. Miciotto, Shreveport, Donald G. Kelly, Natchitoches, Donald R. Miller, Robert E. Piper, Jr., Shreveport, for respondents.

Gregory F. Gambel, Robert A. Kutcher, New Orleans, T. Haller Jackson, III, Shreveport, for disciplinary board.

[95-0041 La. 1] KIMBALL, Justice. ^*

This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana that respondent, Judge Hilry Huckaby, III, of the First Judicial District Court for the Parish of Caddo, State of Louisiana, be removed from office. The judiciary commission conducted investigatory hearings, made findings of fact and law, and recommended that respondent be removed from office for violating Canons 1 and 2 A of the Code of Judicial Conduct and for engaging in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute. La. Const. art. V, § 25(C).

FACTS

Respondent took office as a judge of the First Judicial District Court for the Parish of Caddo on January 1, 1993. ¹ On June 29, 1994, the United States Attorney for the Western District of Louisiana filed an "Information" charging respondent with one count of violating 26 U.S.C. § 7203 by failing to file a federal income tax return, a misdemeanor offense under federal criminal law. The "Information," and the "Factual Basis" submitted in support thereof, alleged that respondent, who received gross income of $301,734.00 during the 1987 calendar year, was required by [95-0041 La. 2] federal law to file an income tax return on or before April 15, 1988. These documents also alleged that respondent requested and received an extension, giving him until August 15, 1988 to file his return, but respondent willfully failed to timely file the return, in violation of 26 U.S.C. § 7203.

On June 24, 1994, respondent executed a written plea agreement with the United States Government wherein he agreed, inter alia, to plead guilty to one count of violating 26 U.S.C. § 7203. Pursuant to the agreement, on June 30, 1994, respondent pled guilty to one count of violating 26 U.S.C. § 7203 before the United States District Court for the Western District of Louisiana, Shreveport Division, in the matter entitled United States of America v. Hilry Huckaby, III, No. 94-50059-01.

On October 13, 1994, respondent appeared before the court for a FED.R.CRIM.P. 11(e)(4) hearing. At that time, the court notified him that it would not accept the plea agreement he had reached with the prosecution. After advising respondent that the disposition of his case might be less favorable than the plea agreement had contemplated, the court offered him the opportunity to withdraw his guilty plea. Respondent declined, and the court set his sentencing for November 18, 1994.

On November 18, 1994, the court sentenced respondent to a twelve month prison term, one year of active supervised probation after his release from prison, and a $5,000.00 fine. The court also ordered respondent to pay the full sum of his tax liability for 1987. Respondent's conviction and sentence were affirmed in United States v. Huckaby, 43 F.3d 135 (5th Cir.1995).

JUDICIARY COMMISSION PROCEEDINGS

On August 15, 1994, the Judiciary Commission of Louisiana filed the following formal charge against respondent:

CHARGE I

[95-0041 La. 3] A. Judge Hilry Huckaby, III on June 3, ² 1994 pled guilty, in open court, in Case Number 94-50059-01 before the United States District Court for the Western District of Louisiana, Shreveport Division, in the matter entitled United States of America v. Hilry Huckaby, III, to one count of violating 26 U.S.C. § 7203 relative to failing to file an income tax return for the calendar year 1987. Hilry Huckaby, III had and received gross income of $301,734.00 in calendar year 1987.

B. By reason of the foregoing Section A, you have:

(1) Violated Canons 1 and 2A, of the Code of Judicial Conduct, adopted by the Supreme Court of Louisiana, effective January 1, 1976; and

(2) Engaged in willful misconduct relating to your official duty and persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

On August 29, 1994, respondent answered the commission's formal charge. Respondent admitted the factual allegations in Count I(A), but denied the allegations of law in Count I(B). Respondent also submitted, as an affirmative defense, that the conduct giving rise to the disciplinary action occurred before he stood for election to judicial office and before he took his oath of office.

The commission held hearings on October 14, 1994 and December 16, 1994. On January 6, 1995, the commission rendered findings of fact and conclusions of law, and issued a recommendation regarding the appropriate measure of discipline in this case. The commission found, as a matter of law, that respondent violated Canons 1 and 2A of the Code of Judicial Conduct and engaged in persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute by pleading guilty to one count of violating 26 U.S.C. § 7203. The commission further found that because respondent did not file the 1987 tax return until January 14, 1993, ten days after he became a judge, respondent's conduct continued through his campaign for, and assumption of, judicial office. The commission ultimately concluded respondent is unfit to hold judicial office and [95-0041 La. 4] recommended that respondent be: (1) disqualified from exercising any judicial function, without loss of salary, during the pendency of proceedings in the supreme court pursuant to Article V, § 25(C) of the Louisiana Constitution; (2) removed from office as a judge of the First Judicial District Court for the Parish of Caddo; (3) ordered to reimburse the commission for the $271.50 in out-of-pocket expenses the commission incurred in the investigation and prosecution of his case, pursuant to Supreme Court Rule XXIII, § 22. On January 12, 1995, this court accepted the commission's first recommendation by issuing an order disqualifying respondent from exercising any judicial function during the pendency of disciplinary proceedings in this court.

DISCUSSION

Louisiana Const. art. V, § 25(C) vests this court with exclusive original jurisdiction in judicial disciplinary cases:

On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony. On recommendation of the judiciary commission, the supreme court may disqualify a judge from exercising any judicial function, without loss of salary, during pendency of proceedings in the supreme court. On recommendation of the judiciary commission, the supreme court may retire involuntarily a judge for disability that seriously interferes with the performance of his duties and that is or is likely to become permanent. The supreme court shall make rules implementing this Section and providing for confidentiality and privilege of commission proceedings.

As the foregoing constitutional language makes clear, this court's disciplinary power, which includes the power to remove judges, can only be invoked upon the judiciary commission's recommendation. See Small v. Guste, 383 So.2d 1011 (La.1980).

In determining whether to remove a judge, we are mindful that [95-0041 La. 5] the removal of a duly elected member of the judiciary is an extremely serious undertaking which should only be borne with the utmost care because such a removal disrupts the public's choice for service in the judiciary. However, when making that determination, we are guided by the language of this state's constitution and the Canons of the Code of Judicial Conduct, which are binding upon members of the judiciary. See La.R.S. 42:1167; In re Wilkes, 403 So.2d 35 (La.1981); In re Babineaux, 346 So.2d 676 (La.1977), cert. denied, 434 U.S. 940, 98 S.Ct. 431, 54 L.Ed.2d 299 (1977). Violations of the Canons of the Code of Judicial Conduct can, without more, serve as a basis for discipline under Article V, § 25(C). In re Chaisson, 549 So.2d 259 (La.1989).

The commission found that respondent violated Canons 1 and 2 A of the Code of Judicial Conduct. Canon 1, entitled "A Judge Should Uphold the Integrity and Independence of the Judiciary," provides:

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. As a necessary corollary, the judge must be protected in the exercise of judicial independence.

Part A of Canon 2 of the Code of Judicial Conduct entitled, "A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities," states:

A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

We recognized in In re Whitaker, 463 So.2d 1291, 1298 (La.1985), that because this court is the court of original jurisdiction in judicial disciplinary proceedings, it serves as the finder of fact in such proceedings. However, because this court is not equipped to...