In re Bowers

• Decision Date: 01 December 1998
• Docket Number: No. 98-O-1735.,98-O-1735.
• Citation: 721 So.2d 875
• Parties: In re Judge Gary A. BOWERS.
• Court: Louisiana Supreme Court

721 So.2d 875

In re Judge Gary A. BOWERS.

No. 98-O-1735.

Supreme Court of Louisiana.

December 1, 1998.

Nancy E. Rix, Steven R. Scheckman, New Orleans, for Applicant.

Herschel E. Richard, Jr., Shreveport, for Respondent.

ON RECOMMENDATION FOR DISCIPLINE FROM THE JUDICIARY COMMISSION OF LOUISIANA

CALOGERO, C.J.¹

This matter comes before the court on the recommendation of the Judiciary Commission of Louisiana that Judge Gary A. Bowers of the First Judicial District Court for the Parish of Caddo, State of Louisiana, be publicly censured, suspended from office for ten days without pay, and ordered to reimburse the Commission the costs incurred in the investigation and prosecution of this case. The Judiciary Commission conducted an investigatory hearing, made findings of fact and law, and determined that respondent violated Canons 1, 2 and 3 A (1), (2) and (3) of the Code of Judicial Conduct by engaging in a pattern of abusive and discourteous behavior towards those appearing in his courtroom. After reviewing the record, we find that some of the charges against Judge Bowers are supported by clear and convincing evidence. We agree with the Judiciary Commission that certain elements of Judge Bowers' behavior warrant public censure and an assessment of costs, but decline to impose the recommended ten day suspension without pay.

PROCEDURAL HISTORY

Respondent, Judge Gary A. Bowers, took office as a judge of the First Judicial District Court for the Parish of Caddo on January 2, 1991. Since that time, he has been assigned to a section of the court that hears only domestic cases. The Judiciary Commission initiated proceedings against Judge Bowers after receiving written complaints from Kathleen D. Norris (formerly Kathleen Scott), a litigant in the case of Scott v. Scott, No. 390,536, First Judicial District Court, Parish of Caddo. While investigating Mrs. Norris' complaint, questions arose concerning Judge Bowers' handling of two additional cases, Shields v. Shields, No. 404,438, First Judicial District Court, Parish of Caddo and Pollard v. Pollard, No. 401,965, First Judicial District Court, Parish of Caddo. The Commission sua sponte initiated an investigation into these cases as authorized by Supreme Court Rule XXIII, § 3(a).

Judge Bowers was notified of the initial complaint by Mrs. Norris, of the Commission's investigation into Mrs. Norris' allegations, and of the investigations it authorized with regard to the Shields and Pollard cases. After the completion of the Commission's investigations, Formal Charges I, II and III were filed against Judge Bowers on May 20, 1997, with an amendment to Charge I filed on August 8, 1997. Collectively, the charges allege that respondent has used inappropriate words and phrases while on the bench, and has been consistently impatient, discourteous and insensitive to attorneys, witnesses and parties appearing before him. Discovery was conducted, followed by a hearing before the Commission on the merits of the Formal Charges on January 16, 1998. Special Counsel to the Judiciary Commission called no witnesses to the stand at the hearing, but relied upon the tape recordings and transcripts of the proceedings at issue. It was stipulated by the parties that the legal correctness of any of Judge Bowers' rulings would not be contested.

At the conclusion of the hearing, the Commission issued its findings of fact, determined that each of the three charges had been proven by clear and convincing evidence, and issued a recommendation for discipline. The Commission concluded that, based upon Charges I, II and III, respondent has violated Canons 1, 2 and 3 A(1), (2) and (3) of the Code of Judicial Conduct,² and/or engaged in willful misconduct relating to his official duty, as well as persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute. La. Const. Art. V, § 25(C).

CHARGE I

Charge I derives from respondent's behavior and demeanor while presiding over Scott v. Scott, No. 390,536, First Judicial District Court, Parish of Caddo. On April 13, 1995, Joey Hendrix, counsel for Kathleen Scott Norris, filed an emergency writ application and stay order with the Second Circuit Court of Appeal, seeking relief from Judge Bowers' setting of a Motion to Continue on the same day as the scheduled proceeding, and seeking relief from Bowers' ex parte quashing of a telephone deposition. Judge Bowers believed that the writ application contained certain misstatements of fact, but nonetheless did not submit a per curiam to the Second Circuit as permitted by Louisiana Code of Civil Procedure article 2132. Instead, on August 18, 1995, after the Second Circuit had denied the writ application and remanded the matter for further proceedings, Judge Bowers criticized Hendrix in open court.

During the colloquy that transpired, Judge Bowers characterized Hendrix's actions as "eleventh-hour crap" and commented repeatedly that, in his opinion, Hendrix's conduct was "sanctionable." During the hearing that day, Mr. Hendrix filed a second Motion to Continue and attempted to present to Judge Bowers letters from physicians indicating that his client, Mrs. Norris, was medically unable to travel and attend the proceedings. Judge Bowers referred Hendrix's offering of a doctor's letter with the motion for the continuance as "a back-door attempt to get it into the record." He denied the continuance and issued a bench warrant for the arrest of Kathleen Scott Norris, ordering that her name be entered into the National Crime Information Center (NCIC) computer because of her failure to appear.

Two days later, Judge Bowers summoned legal counsel to his courtroom in order to discuss threatening phone calls he had received from a man he believed to be Mrs. Norris' new husband, John Norris, who was not a party to the lawsuit. Appearing as legal counsel for Mrs. Norris that day was Richard King, substituting for Mr. Hendrix. Though Mr. Norris, a resident of Colorado, and Mr. Hendrix were not in the courtroom that day, Judge Bowers chose to express his anger to those present. He referred to Mr. Norris as "some little pimp up in Colorado"³ and a "little two-bit hoodlum." He further threatened that if he received another call he would "turn it up a notch" because he doesn't "get paid enough to take threats from little cheap hoodlums like this guy, John Norris." In November, after receiving several more phone calls, Judge Bowers ordered that a warrant be issued for Mr. Norris' arrest with a $50,000 bond, and that his name be entered into the NCIC computer.⁴

Finally, the Judiciary Commission points to the handling of a Motion and Order for Suspensive Appeal, filed by Carey T. Schimpf, new counsel for Kathleen Scott Norris, as an example of Judge Bower's misconduct. Mr. Schimpf's pleading incorrectly stated that neither Mrs. Norris nor her attorney had been present at the April 18 hearing, when in fact Mrs. Norris' attorney had been there. Judge Bowers signed the order, but wrote across the bottom of the final page:

*CAUTIONARY WARNING: I SURE HOPE THE ART. 863 `REASONABLE INQUIRY' WAS MADE PRIOR TO THE FILING OF THIS PLEADING!

He also sent a memorandum to Mr. Schimpf which stated that the motion "contains some very substantial misstatements of fact; of course, I am not surprised."

CHARGE II

The Judiciary Commission has also recommended that Judge Bowers be disciplined for his handling of Pollard v. Pollard, No. 401,965, First Judicial District Court, Parish of Caddo. The Commission suggests that Judge Bowers failed to exercise patience with a witness/litigant, Helen V. Pollard, thus contributing to her eventual loss of control and striking of a bailiff, and improperly criticized Ms. Pollard's attorney, Gary Fox, after he filed a writ application with the Second Circuit Court of Appeal based upon Ms. Pollard's incarceration for contempt of court.

Ms. Pollard was called to the stand on March 14, 1995, after initiating proceedings to obtain permanent alimony and recognition that she was not at fault in terminating her marriage. Ms. Pollard became upset when a dental expense she claimed should be included within the alimony calculation was challenged by her husband's attorney. Judge Bowers informed her that if she refused to answer the questions presented "you all can fold your stuff up and you all can head to the house."

When Ms. Pollard protested, Judge Bowers asked her if she "had a problem hearing." Ms. Pollard's further protests prompted Judge Bowers to order her to stop speaking and charge her with contempt. Ms. Pollard struck the court bailiff as he attempted to remove her from the courtroom. Judge Bowers found her in direct contempt of court and sentenced her to thirty days in jail.

Soon thereafter, Ms. Pollard's attorney, Gary Fox, filed a writ application with the Second Circuit Court of Appeal, alleging that Ms. Pollard was denied an opportunity to be heard and was sentenced to excessive punishment. He claimed she had merely "abandoned" her case. The Second Circuit denied the writ on March 20, 1995. The following day, March 21, 1995, Judge Bowers faxed a memorandum to Mr. Fox and opposing counsel, ordering them to appear that afternoon in his courtroom for the signing of a judgment and to address "additional matters." That afternoon, after ascertaining whether Mr. Fox agreed with the terms of the judgment to be signed, Judge Bowers commented, "I mean, I wouldn't want you to go whining up to the Court of Appeal again...."

Admittedly angry with Mr. Fox for filing what he viewed as a misleading writ application, Judge Bowers then proceeded to verbally criticize Mr. Fox for literally fifty minutes, using words like "crap," "ass" and "hell." Judge Bowers additionally threatened Mr. Fox with sanctions, contempt of court, and the filing of a complaint with the Disciplinary Board. He made further threats, commenting, for example, that "if you ever do it...