State ex rel. Counsel for Discipline of the Neb. Supreme Court v. Gast

• Decision Date: 19 May 2017
• Docket Number: No. S-15-800.,S-15-800.
• Citation: 296 Neb. 687,896 N.W.2d 583
• Parties: STATE of Nebraska EX REL. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator, v. William E. GAST, respondent.
• Court: Nebraska Supreme Court

296 Neb. 687

896 N.W.2d 583

STATE of Nebraska EX REL. COUNSEL FOR DISCIPLINE OF the NEBRASKA SUPREME COURT, relator,

v.William E. GAST, respondent.

No. S-15-800.

Supreme Court of Nebraska.

Filed May 19, 2017.

Kent L. Frobish, Assistant Counsel for Discipline, for relator.

William E. Gast, pro se.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Per Curiam.

I. NATURE OF CASE

Attorney William E. Gast was charged by the Counsel for Discipline with violating Neb. Ct. R. of Prof. Cond. §§ 3-503.5(a)(1), 3-508.2(a), and 3-508.4(a) and (d), and violating his oath of office as an attorney as set forth in Neb. Rev. Stat. § 7-104 (Reissue 2012). The charges were based on a series of communications sent by Gast to Douglas County District Court Judge Peter C. Bataillon and attorney Robert Craig. We conclude that Gast violated these provisions as charged and order that he be suspended from the practice of law for a period of 1 year, to be followed by a period of 2 years' probation upon reinstatement.

II. BACKGROUND

This disciplinary proceeding results from Gast's conduct in the course of litigation in the case State of Florida v. Countrywide Truck Ins. Agency¹ in the district court for Douglas County. The case has been appealed to this court several times since it was originally filed in 1998.² The details of the litigation are summarized: The State of Florida, Department of Insurance (Florida), was appointed as the receiver of an insolvent Florida insurance company.³ Florida pursued a claim on behalf of the insolvent company against Countrywide Truck Insurance Agency, Inc. (Countrywide), and its owner David L. Fulkerson, alleging that Fulkerson converted money that was owed to the insolvent company for his personal use. Gast began representing Fulkerson in early 2002. Fulkerson died in 2009, and his widow, Diederike M. Fulkerson (Diederike), who was the executor of his estate, was added as a defendant.

In the most recent appearance of that case before this court, Gast appealed the district court's order granting Florida $15,000 in attorney fees as a sanction for a frivolous motion to recuse that he had filed.⁴

Judge Bataillon had taken over the case from another judge when that judge retired in 2000. Over the long course of the Countrywide litigation, Gast became very dissatisfied with the rulings of Judge Bataillon. He believed that Judge Bataillon made "blatant errors of law."

In 2004, Judge Bataillon denied Gast's motion for partial summary judgment on what Gast believed was an unsound legal basis and which he believed "made absolutely no sense whatsoever." This led Gast to believe that "something is really wrong here, something is really, really wrong." Gast filed a motion to recuse Judge Bataillon on the basis that one of his prior orders contained errors that could reasonably be believed to be based on either a lack of attention, a lack of ability, a lack of impartiality, or some combination of these reasons. The motion was denied by Judge Bataillon. Thereafter, Gast filed an appeal and a writ of mandamus. The mandamus was denied, and the appeal was dismissed for lack of a final, appealable order.⁵ Gast testified at his disciplinary hearing that after this point, "everything that happened ... made it appear to me that the outcome was being engineered."

In 2006, the case was tried, and Gast was convinced the result was "predetermined." At the conclusion of the evidence, Florida moved for a directed verdict, which the district court granted.⁶ On appeal, this court reversed the directed verdict. reasoning that the intent to defraud creditors is a factual question that should have been decided by the jury.⁷

After Fulkerson died in 2009, Florida pursued its claim against his estate in probate court, which denied the claim. After this, Fulkerson's estate was dropped as a defendant in the district court litigation, but Florida continued pursuing its claims against his widow, Diederike.

The case was retried to the bench and submitted in April 2014. After submitting proposed findings of fact and conclusions of law to the court, Gast sent a "Personal, Private and Confidential Memorandum" to Judge Bataillon and opposing counsel Craig, dated April 15, 2014 (referred to as "exhibit A"). The memorandum insinuated that "personal reasons" were driving Judge Bataillon's actions in the case. It states in part:

I can only speculate as to your personal reasons, but I choose not to. Unfortunately, whatever those might be, they may indeed overwhelm [Diederike's] health. If that happens, how will you feel? Not good, I'm sure.

I have long accepted that I will die without ever knowing the real reason(s) for what has transpired in this matter since I first became involved in early 2002. But I do know that neither I, ... Fulkerson, nor [Diederike] have ever done anything to deserve the hostility that has prevailed from my very initial involvement. Which, by the way, long predated and actually necessitated the recusal request.... Consider what it is doing to a very sweet 79-year-old woman who deserves NONE of the emotional and physical damage that this is causing her. Also, how it could impact the integrity and reputation of an otherwise respectable Judgeship. And third, the worsening consequences to [Craig] for the mounting costs to Florida and the [insolvent company's] creditors.

....

Bottom line, this case is over, and you both know it. The sooner that it is made official, the better it will be for all concerned ... especially the justice system of this State, for which it has been a "black eye" for years. If it is left to the Supreme Court to do so, it could be very ugly indeed for everyone. Ending it now might allow for some face-saving for all concerned, and for some well-deserved relief for [Diederike].

This memorandum was sent about a week after the case was submitted to the court.

In July 2014, Gast's wife had lunch with the ex-wife of Craig. She told Gast's wife that Craig and Judge Bataillon (then-attorney Bataillon) had been "best buds." According to Gast:

[Craig's ex-wife] related parties, dinner engagements at the Omaha Press Club, and the softball team on which ... Craig and [then-attorney] Bataillon played. She told me the details, and they would have parties afterwards, and sometimes they would go to bars, and the wives would meet them, and she referred to Bataillon as Pete.

In August 2014, Gast filed a second motion to recuse Judge Bataillon, citing Neb. Rev. Code of Judicial Conduct § 5-302.4 that "[a] judge shall not permit ... social ... interests or relationships to influence the judge's judicial conduct or judgment." The motion also stated:

This Motion is additionally based upon (among other violations) newly-acquired evidence of this Court's lack of "impartiality," lack of "independence," and lack of "integrity" (as those terms are defined in the Nebraska Code of Judicial Conduct) that existed from soon after the Hon. Peter C. Bataillon inherited this action from the Hon. Michael McGill and that has continuously persisted throughout the period of more than twelve years to the very date of this Motion.

It further alleged that Gast "very recently acquired reliable information that, for a period of at least twenty years prior to the appointment of ... Judge Bataillon to the Douglas County District Court, a very close personal friendship and continuous social relationship had existed between" Judge Bataillon, Craig, and Craig's cocounsel. The petition alleged that the relationship was never disclosed by Craig or Judge Bataillon and that "the relationship has been improvidently, unethically and continuously concealed by the Hon. Peter C. Bataillon, Craig and [cocounsel] from the time Bataillon inherited this case ... until the very present day."

The specific allegations in the motion to recuse included that then-attorney Bataillon and Craig played on a summer softball team together "for approximately three years in the 1970s or early 1980s," including socializing after games; attended parties together at the cocounsel's home; and attended dinners at the Omaha Press Club.

Following the motion to recuse, Gast sent a letter to Judge Bataillon and Craig (referred to as "exhibit B"). It said, in part:

Now that the truth of your pre-suit relationship has been discovered, the Docket Sheet itself demonstrates the "cover-up" quality to each and every successive refusal to disclose it after your initial failure to do so. Check it out yourselves. It actually takes on a crescendo-like appearance on its very face. The lesson about cover-ups is that they usually come undone eventually, and the consequences to those involved always amplify in direct proportion to their pre-discovery duration. This "coverup" is more than 12 years old!

Judge, your responsibility is obvious and it is immediate.... You must now recuse sua sponte. And I trust that you will not force me to file the augmented Motion, or to conduct a public hearing on it, or to serve the Subpoenas or to take the Depositions.

Later in August 2014, the court held a hearing on the motion to recuse. At the hearing, Judge Bataillon said, "The only contact that I had with ... Craig was probably in the early '80s I played on the same softball team with him for maybe a year or two. That's it." Craig did not remember being on the same softball team as Judge Bataillon during the late 1970's or early 1980's, but had been told by Craig's cocounsel that Judge Bataillon had "played some" on the team. Judge Bataillon was not persuaded by Gast's claims. He said:

At all times I have upheld the law. At all times I have acted fairly and impartially based upon what the evidence has been, based upon what the facts have been, and things of that nature.

This allegation that I failed to disclose, there was nothing to disclose that—that rises to any level under the judicial ethics or any of the lawyers in this matter. As such, your motion is overruled.

In September 2014, Gast sent another letter to Judge...