State ex rel. Martin v. Judge of Twenty-Ninth District

• Decision Date: 30 October 1922
• Docket Number: 25553
• Citation: 94 So. 389,152 La. 768
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. MARTIN v. JUDGE OF TWENTY-NINTH DISTRICT. In re MARTIN

94 So. 389

152 La. 768

STATE ex rel. MARTIN v. JUDGE OF TWENTY-NINTH DISTRICT.

In re MARTIN

No. 25553

Supreme Court of Louisiana

October 30, 1922

John Dymond, Jr., and A. Giffen Levy, both of New Orleans (R. J Weinmann, of New Orleans, of counsel), for applicant.

OPINION

DAWKINS, J.

Emile Martin was charged in an affidavit made before the respondent judge with violating certain provisions of Act 122 of 1921 (Ex. Sess.) relative to registration of voters. He was arrested, and a preliminary examination ordered before the said judge as a committing magistrate. On the day of the hearing Martin filed a motion to recuse the said judge, and asked that he forthwith recuse himself or refer the motion to the judge of an adjoining district.

The grounds alleged in the motion for recusation were as follows:

"That Leander H. Perez, district judge for the Twenty-Ninth judicial district for the parish of Plaquemines, state of Louisiana, is incompetent to sit upon and try any of the issues in this cause, and should recuse himself and appoint the judge of an adjoining district to try this case, or appoint the judge of an adjoining judicial district to determine whether he, the said Leander H. Perez, shall or shall not be recused, for this to wit:

"II. That the said Leander H. Perez, judge, is personally interested in this cause, and petitioner sets up and now shows the following facts establishing the personal interest of the said Leander H. Perez, judge, in the cause, to wit:

"First. That the said Leander H. Perez did, prior to the filing of the affidavit on which this case is based, threaten petitioner with arrest and punishment if he did not perform the acts which he is now criminally charged before this court with not performing -- i. e., keeping his office of register of voters open at the courthouse at Point a la Hache on certain days.

"Second. That the said Leander H. Perez, judge, did personally request an opinion from the Attorney General of Louisiana as to the duty of petitioner, Emile Martin, to perform the acts for the alleged nonperformance of which petitioner is now criminally charged before the court, although the said Leander H. Perez, judge, was and is already registered as a voter in the parish of Plaquemines.

"Third. That the said Leander H. Perez, judge, conferred with the prosecuting witness in this cause, Anson Gravolet, and induced him to sign the affidavit which forms the basis of this prosecution.

"Fourth. That Leander H. Perez, judge, personally prepared the affidavit for the signature of Anson Gravolet, which affidavit so personally prepared by the said Leander H Perez, judge, now forms the basis for the present prosecution.

"Fifth. That the affidavit which forms the basis for this prosecution was sworn to before the said Leander H. Perez, judge, after having been personally prepared and written or dictated by said Leander H. Perez, judge, and was by him, the said Leander H Perez, personally delivered to the clerk of this court.

"Sixth. That the said Leander H. Perez, judge, is to all intents and purposes the prosecuting witness in this cause, although at the same time the duly elected and acting judge of this court.

"Seventh. That the said Leander H. Perez, judge, did prior to the institution of the prosecution against the petitioner by affidavit herein threaten to prosecute petitioner, and stated to petitioner that under the facts now charged in the affidavit, which he discussed with petitioner, petitioner had violated the law referred to in the affidavit herein, and that he had consulted the Attorney General of the state of Louisiana with reference to the acts of petitioner complained of by the said Leander H. Perez, and the Attorney General had stated that the acts of petitioner were a clear violation of the law, which opinion of the Attorney General confirmed the said Leander H. Perez's opinion; whereupon the petitioner informed the said Leander H. Perez that he had consulted John Dymond, Jr., Esq., a member of this court and district, his friend and personal legal adviser, and had been advised by his said personal attorney and friend that he, petitioner, was in duty bound to carry out his advertised schedule of days for registering citizens at or near each polling place in the parish of Plaquemines, which said advertisement was first published on June 10, 1922, in the official journal of the parish of Plaquemines, which said schedule extended to August 12, 1922, inclusive, on the grounds that a majority of the citizens of the parish of Plaquemines would present themselves at these scheduled polling places, other than the parish seat of Point a la Hache, and the effect of keeping his office open at the parish seat would be to deprive a large majority of the citizens of this parish of the right of registering at their respective polling places, and the citizens at the polling place at the parish seat could, without much inconvenience register at the nearest polling place adjoining the parish seat; and he had been further advised that such action by petitioner was warranted by the extraordinary situation developed by the effects of the Poydras and Myrtle Grove creyasses, in the parish of Plaquemines, interrupting communications; and petitioner further says that the said Leander H. Perez, judge, was fully aware of the conditions afore recited, but sought by threats of criminal prosecution of petitioner to compel petitioner to do what he had been legally advised he could not legally do; and petitioner further charges the said Leander H. Perez, judge, has a fixed and unchangeable opinion that petitioner is guilty of the offense charged in the said affidavit, and cannot give petitioner a fair and impartial trial of the alleged offense set forth in the affidavit herein.

"III. Petitioner shows further that, in addition to the above facts, the said Leander H. Perez, judge, is a member of a political faction hostile to petitioner, and of which political faction the said Leander H. Perez is an active agent, being the accredited leader thereof, functioning as such, and by means of which political faction the said Leander H. Perez, judge, is seeking to perpetuate himself in office, by seeking control of the political offices in the parish of Plaquemines, and more particularly the offices of the members of the school board which are to be voted for at the election of September 12, 1922, and that he, the said Leander H. Perez, judge, has been actively engaged in electioneering and seeking votes for the candidates of his faction who are offering for offices of members of the school board from his political faction in the parish of Plaquemines; and that petitioner cannot obtain a fair and impartial trial before the said Leander H. Perez, judge, by reason of his bias and prejudice, and by reason of his interest in this cause."

This motion was overruled with the following reasons:

"Considering the petition of Emile Martin for the recusation of the judge of this court, and the motion made by counsel for Emile Martin, the court being of the opinion that at this time, there being no issue joined between the state of Louisiana and said Emile Martin, and there being no issue therefore to be tried, the petition and motion are premature, and that if or when such issue or any issues should be joined herein between the state of Louisiana and the said Emile Martin, the prayer of the petition of the said Emile Martin will be considered according to law; and at this time it is ordered that the preliminary examination be proceeded with."

Thereupon exception and objection to the court's ruling was taken written notice was immediately served upon said judge of the intention to apply to this court for writs of certiorari and prohibition, but notwithstanding which the hearing was ordered to continue. Other pleadings were filed and overruled. The said judge called and examined witnesses in support of the charge, but defendant declined to cross-examine them or to offer any evidence in his own behalf. The hearing was completed, and the court held the accused...